The First Period of Evolution, 1984?94

• Author: W.H. Charles
• Pages: 1-14

1

Chapter 1

The First Period of Evolution

1984–94

A. SHORT SUMMARY OF DATA REGARDING TRIAL AND

APPEAL COURT DECISIONS

A sampling of seventy-one cases comprising eighty-one judgments of

provincial and federal trial and appellate courts shows that damages were

awarded under section 24(1) of the Charter1 in 35 percent of the cases where

they were claimed during the period 1984 to 2010.2 Trial courts awarded

damages in 40 percent of the cases3 wh ile appeal courts were less generous,

awarding dama ges under section 24(1) in only 33 percent of the cases.4 The

lower success rate at the appeal level is not altogether surprising given the

more cautious approach of higher courts to new legal developments generally.

Although Parliament gave the courts broad authority in section 24(1)

to provide remedies that are “appropriate and just in the circums tances,” it

failed to provide them with more specif‌ic directions or guidance as to the

criteria to be applied when exercising their newly provided wide discret ion.

Theoretically, courts of appeal are considered to have more time to consider

the jurisprudential landsc ape and thereby provide a road map for the lower

trial courts. A review of Charter damages cases in the f‌irst eleven years5

indicates not a single provincial or federal court of appea l decision providing

1 Canadian Char ter of Rights and Freedoms, Pa rt I of the Constitution Act, 1982,

being Schedule B to the Cana da Act 1982 (UK), 1982, c 11 [Charter].

2 These cases are collected in Appendix 5 for ease of reference tog ether with

award amounts.

3 These cases are listed in Appendi x 6.

4 These cases are listed in App endix 7.

5 See Appendix 1, cases 1–21.