Supreme Court of Canada Decisions, 1995?2010

• Author: W.H. Charles
• Pages: 51-65

51

Chapter 4

Supreme Court of Canada Decisions

1995–2010

A. INTRODUCTION

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

1 [1994] 1 SCR 311.

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.