Supreme Court of Canada Decisions, 1995?2010

AuthorW.H. Charles
Chapter 4
Supreme Court of Canada Decisions
In the f‌ifteen years that followed its 1994 decision in RJR – MacDonald Inc
v Canada (AG),1 Canada’s highest court continued to discuss the relation-
ship between section 52(1) of the Constitution Ac t, 19822 and section 24(1) of
the C anadian Charter of Ri ghts and Freedoms,3 and the issue of concurrent
remedies. In what appears to be the f‌inal word on the issue, the Supreme
Court of Canada in R v Ferg uson4 again tried to clarify the relationship be-
tween the two sections by pointing out that they serve dif‌ferent remedial
purposes. The Court ex plained as follows:
Section 24(1) has generally been seen — at least until now — as pro-
viding a case- by-case remedy for unconstitutional acts of government
agents operating under law ful schemes whose constitutionality is not
challenged. The other remedy sect ion, s. 52(1) of the Constitution Act,
1982, confers no di scretion on judges. It simply provides that laws that
are inconsistent with the Char ter are of no force and ef‌fect to the ex-
tent of that inconsistency . . . .5
In other words, section 24(1) provides remedies for unconstitutional actions
of government of‌f‌icials while section 52(1) provides a remedy for uncon-
stitutional laws. As to the related problem of concurrent remedies under
2 Being Schedule B to the Canada Act 1982 (U K), 1982, c 11.
3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Ac t 1982
(UK), 1982, c 11 [Charte r].
4 2008 SCC 6 [Ferguson].
5 Ibid at para 35, McLachli n CJ.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT