Enforcement
usu s52 --> remedy for law that violates the Charter
and s24 --> remedy for govt action that violates the Charter
Supremacy Clause
s52(1) – provides explicit basis for judicial review any law inconsistent w/ the
Constitution is to the extent of the inconsistency of no force or effect
-Charter has overriding effect due to s52(1) – and any law that is inconsistent w/
the Charter is of no force or effect.
s24(1) – auth court to award remedy for breach of the Charter
s24(2) – auth court to exclude evidence obtained in breach
Compare s24 and s52:
*s24 applies only to breaches of Charter while 52(1) is aplicable to the entire
Constitution
*s24 only avail to court “of competent jurisdiction” s52 avail to any court or
tribunal with power to decide questions of law
*s24 auth wide range of remedies s52 auth only invalidity and leaves the rest to
the general law
*s24 discretional remedy but s52 no discretion – invalidity is automatic upon
finding of inconsistency
Exception – Charter cases – 6 options upon finding of inconsistency:
1. Nullification (stiking down the statute)
2. Temporary validity (delayed striking down to allow govt to address
inconsistency)
3. Severence (holding only part of the statute invalid and striking out that
part)
4. Reading in (adding words to the statute to make it valid)
5. Reading down (interpreting the statute so that it is consistent w/ the
Constitution)
6. Constitutional exemption (create an exemption from the statute where its
application would be inconsistent w/the Consitution)
Nullification : effect is that litigation determined as if law didnt exist. ie, if criminal
offence = acquittal; if civil action = party relying on the law loses their case
Temp validity : statute remains in force until period of postpnement expires. Usu
used in emergency of danger to public or threat to rule of law (eg would leave a
legal vacuum – like Maitoba Lang Rights case).
“New rationale” = in many cases the Court would prefer the legisl to devise the
approp remedy for an unconsitutional law. (If legisl chooses to take no action,
invailidity will take effect on expiry of the suspension period)
Effect is to iinvalidate the unconstitutional statue from the time of its enactment
(not from the time of expiry of the suspension period)
If corrected – the corrective legislation will also take effect retroactively.
Otherwise the litigants would have no remedy. (If only prospective - will have to
satisfy Oakes test for the period that the statute was inconsistent w/ the
Constitution)
Severence : rest of the statute can survive independently. Used for most Charter
cases. =doctrine of Judicial restraint. in some newer cases Court has deleted
words that made a provision uncosntitutional and were integral to its operation, it
was invalid in the language it was created in and could only be upheld if amended
by the Court.
Reading in : can be used to remedy an under inclusive scheme by adding new
language to accommodate an unconstitutionally excluded class.
Schachter – reading in only appropriate in the clearest of cases where :
1. adding excluded class is consistent w/ the legislative objective
2. little choice as to how to cure the constitutional defect
3. would not involve substatial change in cost / nature of scheme
4. alternative of striking down under-incl provision would be an inferior remedy
*severence and reading in are intrusive but so is striking down a legislative
scheme altogether Plus it is always open to the competent legisl body to enact
further amendments
Reading down : only avail where statute will bear 2+ interpretations. Effect is that
statute is not invalid. Also a doctinte of judicial restraint.
Constitutional exemption : eg Sunday observance laws – court willing to grant
constitl exemption to saturday sabbath observers so that the law is not unconstitl
– but prob involves making a choice from more than one solution - maybe better
left to legisl.
Reconstruction : general rule is that Courts should not reconstruct a statute that is
unconstitutional (temp valid, reading in /down, severence, and const exemp =
exceptions to the general rule) (Hunter v Southam; Schachter)
One (rare) exception where Court will redraft a law to make it comply w/the
Charter: where the offending law is a rule of the common law.
eg R v Swain – CL rule that crown could adduce evid of insanity against wishes of
the accused = viol of s7 – not necessary to strike down the existing law because it
was judge made and the Court had the power to replace it.
Remedy Clause
s24 only avail to remedy the Charter
but not the only was to remedy a Charter breach – sometimes all that is needed is
a decl of invalidity – avail under s52(1) and whatever other remedy the enabling
statute of a tribunal authorises
usu 52 --> remedy for law that violates the Charter
and 24 --> remedy for govt action that violates the Charter
s24 provides a personal remedy against unconstl govt action – thats why it is only
available to the person whose Charter right has been infringed.
Standing
“anyone whose charter rights have been infringed or denied”
cp s52 more generous – interested parties can sometimes seek a declaration that
a law is unconstitutional even if they are not directy affected by the law.
Apprehended infringements
s24 not avail to apprehended future infringements BUT may be avail for imminent
threat of infringement (eg where Eng parents denied rights to Eng lang edu for
their children before school year has started can be given standing)
Court of Competent Jurisdiction
Sup Crt = general jurisdiction and always a court of comp jurisd
power of a Sup Crt to grant a remedy under s24 cannot be limited by statute
so an applic can always be made to the Sup Crt – but note award under s24 is
discrtionary
Trial Crt = even if not a Sup Crt, is a court of comp jurisd to hear an application for
a remedy that relates to the conduct of the trial (and that is where such applic
should be brought)
PI into a crim charge is not a court of comp jurisd
-ie PI judge has no power to stay proceedings or excl evid on Charter grounds
Hogg: but by implication (following Martin and Paul) the PI judge does have the
power to decide constl ques that affect the validity of the charge or the
admissibility of the evidence tendered in support of the charge.
Admin Trib = court of comp jurisd if its enabling statute gives it power over:
1. the parties to the dispute
2. the subject matter of the dispute and
3. the Charter remedy sought
(-Weber v Ontario – Labour arbitrator = court of comp jurisd and could grant a
declaration and damages under s24 for breach of the Charter)
Most likely a court cannot grant a (type of) remedy under s24 that it would not
have the jurisdiction to grant otherwise. (eg for a crim court to award damages
under s24 against a police officer who breached the accused's charter rights –
better left to sep proceedings in civil court)
Hogg: does not agree – because of the wording of s24(1) “such remedy as the
court considers approp”
legisl limits on remedial powers of a court cannot affect that court's powers to
grant a constitutioal remedy.
Range of remedies
only limit = that a remedy be appropriate and just in the circumstances
defensive remedies : nullify or stop a law or act, dismiss a charge, stay a
proceeding, quash a conviction, enjoin an act, declare a law invalid, excl of evid
(when evid not obtained in breach of Charter but its admission would offend
principles of fundl justice, such as right agaisnt sef-incrim);.
affirmative remedies : ordering province to provide state-funded counsel, return
of goods improperly siezed, a mandatory injunction, or a declaration, damages.
Although each case brings its own unique set of considerations, some factors to
consider in providing a remedy under s24(1) are:
1) redress of the wrong suffered by the applicant
2) encouragement of future compliance with the Consitution
3) avoiding unnecessary interference w/ exerise of govt power
4) ability of the court to administer the remedy awarded
Supervision of Court Orders
should be remedy of last resort – practical details of implementation = funciton of
the executive-eg. case of Sudanese Cdn who was unable to return after being
arrested w/o charge and tortured, court ordered him to be produced before it bc
th govt had acted in bad faith by blocking his return when they were allegedly
aiding it.
Appeals
s24 does not auth an appeal from the decision of the court – that will depend on
the rules of the court where the application is made .
-but if seeking a civil remedy may be able to appeal where criminal code does not
provide for appeal – even if the civil remedy (eg declaration) is related to criminal
proceedings.
Adminstrative Tribunals
Douglas College – arbitration board appointed by the parties under a collective
agreement but empowerd by statute to decide questions of law = power to
determine constitutionality of a mandatory retirement provision in the collective
agreement.
Cuddy Chicks – labor relations board created and emp by stat to decide questions
of law = power to determ constituntlty of prov in the empowering stat that denied
coll barg rights to agri workers.
-“a tribunal must respect the Constitution so that if it finds a law invalid which it is
called upon to apply, it is bound to treat it as having no force or effect.” (Douglas
College)
-where an admin trib decides a constitutional question it will be subject to judicial
review by a superior court on a correctness standard – and an attempt by Parlt /
Legisl to bar review in this case would be unconstitional.
-limited to the application of the law to the pariticular case because Admin Trib
has no power to make a declaration of invalidity.