Constitutional remedies:
ss. 24(1) and 52(1) of the Constitution Act, 1982
NJI Charter
conference
July, 2010
***
This
document is online at http://www.davidstratas.com/remedies1.html.
Click on a case name and you will be taken to the full text of the
decision. You may save a copy of this document to your own computer – the
hyperlinks will still work. No copyright is asserted. Return often
for recent developments: this document is amended from time to time.
This
document was last updated on July 11, 2010.
The
cases listed are not meant to be anywhere near exhaustive of the case law on
point. I have listed key cases, i.e., cases that set out the
foundational principles for the topic. I have also listed some recent
cases that contain rich discussions of the topic or that are themselves good
repositories of relevant case law.
The
cases are numbered in order to facilitate quick reference to them during my
lecture.
A.
To what
do ss. 24(1) and 52(1) apply?
[1] R. v. Ferguson, [2008] 1 S.C.R. 96 at para.
61 (s. 52(1) is best used to address laws; s. 24(1) is best used to
address acts of government [broadly defined] and provides only personal
remedies)
[2] RWDSU v. Dolphin Delivery Ltd., [1986]
2 S.C.R. 573 (“law” under s. 52(1) includes the common law)
[3] Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990]
3 S.C.R. 570 (“law” under s. 52(1) includes a collective bargaining agreement)
[4] Greater Vancouver Transportation Authority v. Canadian
Federation of Students – British Columbia Component, [2009]
2 S.C.R. 295 at paras. 81-89 (“law” under s. 52(1) includes binding policies of
general application adopted by government entities)
B.
Standing to assert Charter rights / seek remedies
Persons
seeking remedies under s. 24(1) or s. 52 must have “standing” – i.e., the right
to seek a remedy. Subject to limited exceptions, some of which are
canvassed below, only those whose own rights are infringed can seek a
remedy.
[5] R. v. Big M Drug Mart,
[1985] 1 S.C.R. 295 (an accused has standing to challenge the Charter provision
under which he/she is charged; that person can invoke the rights of another
person to invalidate the charging provision)
[6] Canadian Egg Marketing Agency v. Richardson,
[1998] 3 S.C.R. 157 (a person who is subject to potential remedies under a regulatory
scheme can challenge a provision in that scheme using another person’s Charter
rights; this is a limited expansion of Big M Drug Mart to civil cases)
[7] Canadian Council of Churches v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 236 (the key case concerning public interest
standing)
[8] Harris v. Canada (public interest standing granted to an
individual in order to prevent complete immunization from review of a
government decision)
[9] Borowski v. Canada (Attorney General),
[1989] 1 S.C.R. 342 (still often cited on
the issue of public interest standing; not significantly different from Canadian Council of Churches)
C.
Statutory jurisdiction of statutorily created courts, administrative tribunals
and other decision-makers to grant the sort of remedy being sought
A
person may have standing to seek a remedy, but has the particular court,
tribunal or other decision-maker been given the statutory jurisdiction to grant
that remedy? The issue here is whether the court, tribunal or other
decision-maker has the express or implied power to grant the remedy
sought. This issue is usually of little concern for statutorily created
courts – most have extremely broad remedial powers.
[10] Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190 at para. 28-29 (discussion of statutory jurisdiction of
tribunals)
[11] Tranchemontagne v. Ontario (Director, Disability Support
Program),
[2006] 1 S.C.R. 513 (strong support for the
proposition that administrative tribunals and statutorily created courts that
do not have inherent jurisdiction only have the powers granted to them under
statute; as a result, for these tribunals and courts, some statutory
power to grant the remedy must be sought)
[12] Global Securities Corp. v. British Columbia (Securities
Commission), [2000] 1 S.C.R. 494 (semble:
such tribunals may have the jurisdiction to grant remedies or exercise powers
if they are necessarily incidental to powers explicitly granted by the statute)
[13] Canada (Human Rights Commission) v. Canadian Liberty Net,
[1998] 1 S.C.R. 626 (same)
D. Can
courts, tribunals or other decision-makers grant s. 24 or s. 52 remedies?
A
person may have standing to seek a remedy, but has the particular court,
tribunal or other decision-maker been given the statutory jurisdiction to grant
that remedy? The issue here is whether the court, tribunal or other
decision-maker has the express or implied power to grant the remedy
sought. This issue is usually of little concern for statutorily created
courts – most have extremely broad remedial powers, thanks to early Judicature
Acts that bestowed plenary power upon them.
[14] Nova Scotia (Workers’ Compensation Board) v. Martin; Nova
Scotia (Workers’ Compensation Board) v. Laseur,
[2003] 2 S.C.R. 504 (a body has the jurisdiction to consider Charter
arguments and grant remedies under s. 52 of the Constitution Act, 1982
if the body has the express or implied jurisdiction to determine questions of
law)
[15] R. v. 974649 Ontario, [2001] 3
S.C.R. 575 (a body has the jurisdiction to grant remedies under s. 24 of the Charter
if a “structural/functional test” is met)
[16] R. v. Hynes, [2001] 3 S.C.R. 623 (companion case to 974649 Ontario; here, a preliminary inquiry judge was held not to have the jurisdiction to grant s. 24 Charter remedies, such as exclusion of evidence)
[17] R. v. Conway,
2010 SCC 22 (Ontario Review Board has the jurisdiction to apply s. 24 of the Charter.
Test: (1) does tribunal have the implicit or express power to decide questions
of law? (2) does it have the statutory jurisdiction to grant the remedy in question?)
E. When a tribunal
has the jurisdiction to grant a Charter remedy in a particular matter, can a
person in that matter seek a remedy in court instead, by-passing the tribunal?
The
controversial case of Martin expanded the ability of tribunals to
consider Charter issues. But already on the books was Lamer J.’s
oft-approved statement in Mills v. The Queen, [1986] 1 S.C.R. 863 at
para. 30 that “there must always be a
court available to grant, not only a remedy, but the remedy which is the
appropriate and just one under the circumstances.” So who can decide the
Charter issue immediately: the tribunal hearing the matter, or the court that
may one day review the matter?
[18] Okwuobi v. Lester B. Pearson School Board,
[2005] 1 S.C.R. 257 (end-runs around statutory tribunals are to be discouraged;
the fact that tribunals can only issue declarations of invalidity is not reason
enough to bypass the constitutional jurisdiction of tribunals; Okwuobi was
applied aggressively in Sazant v. College of Physicians and Surgeons,
unreported, Ont. S.C.J. per Bellamy J., July 11, 2007, but seemingly was
reversed in Kelly v. Ontario (2008), 91 O.R. (3d)
100 (S.C.J.), leave dismissed (2008), 240 O.A.C. 195 (Div. Ct.))
[19] Schilthuis v. College of
Veterinarians of Ontario, 2005
CanLII 1083 (
[20] Canada (Border Services Agency) v. C.B. Powell Limited,
2010 FCA 61 (strong statement against proceeding to court when an adequate
remedy is available before an administrative tribunal even in the case of
so-called “jurisdictional matters”; this would apply also to Charter matters,
where the administrative tribunal has jurisdiction to deal with the matter)
[21] Stratas, “Constitutional Practice and Procedure in Administrative
Tribunals: An Emerging Issue” (interrelationship between the rule
that superior courts have full plenary jurisdiction over constitutional matters
and the rules established by the above authorities)
F.
The “rule” that normally s. 24 remedies will rarely be available in conjunction
with s. 52 remedies
[22] Schachter v. Canada, [1992] 2
S.C.R. 679 at 685 (statement of the rule; now substantially modified and
essentially eliminated by Hislop)
[23] Canada (Attorney General) v. Hislop,
[2007] 1 S.C.R. 429 (when s. 24 monetary
relief will be available in conjunction with a declaration of constitutional
invalidity under s. 52)
G.
Section 52 remedies: types and governing principles
[24] Schachter v. Canada, [1992] 2
S.C.R. 679 at 685 (excellent enumeration of the list of remedies available
under s. 52 and circumstances under which they are available)
[25] R. v.
[26] R. v. Swain, [1991] 1
S.C.R. 933 (good example of a suspended declaration; automatic detention at the
pleasure of the Lieutenant Governor under s. 542(2) of the Criminal Code found
to be contrary to s. 7; suspension for 6 months)
[27] Falkiner v. Ontario (Minister of Community and Social
Services) (2002), 59 O.R. (3d) 381 (
[28] McIvor v. Canada (Registrar of Indian and Northern Affairs),
2010 BCCA 168 (extending a suspended declaration)
[29] Halpern et al. v. Attorney General of Canada et al.
(2003), 65 O.R. (3d) 161 (C.A.) (there is usually
little justification for suspending declarations of invalidity concerning
common law rules because they are judge-made and judge-applied rules)
[30] Canada (Attorney General) v. Hislop,
[2007] 1 S.C.R. 429 at para. 121 (semble,
suspensions allow an unconstitutional state of affairs to persist and,
therefore, should not be routinely granted; they should be available only when
there is danger
to the public, the rule of law is threatened or deserving persons would be
deprived of benefits without benefiting the rights claimant)
[31] Victoria (City) v. Adams 2009
BCCA 563. (Declaration that a section is “inoperative” as opposed to “of no
force or effect”) (Certain by-law provisions prohibited the homeless from
erecting temporary shelters in city parks.
They worked a constitutional violation only when there was lack of
funding for shelters. The court declared
that they were inoperative only insofar as they apply to prevent homeless
people from erecting temporary overnight shelter in parks when the number of
homeless people exceeds the number of available shelter beds in the City. The effect of the s. 52 declaration, as a
practical matter, is to force the city to fund the shelters, which is normally
a s. 24 remedy.)
[32] Schachter v. The Queen,
[1992] 2 S.C.R. 679 (severance)
[33] R. v. Hess; R. v. Nguyen,
[1990] 2 S.C.R. 906 (severance)
[34] Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 (severance
should be done only if doing so would be consistent with legislative intention;
general discussion about respecting legislative intention when granting Charter
remedies; if severance not consistent with legislative intention, provision
must be struck and legislature given the chance to re-enact the section if it
wishes)
[35] R. v. Hall, [2002] 3
S.C.R. 309 (good example of reading in; sharp difference between majority and
dissent concerning the appropriateness of a severance remedy on the facts of
the case)
[36] Vriend v. Alberta, [1998] 1 S.C.R.
493 (good example of reading in; difference between majority and dissent
concerning the appropriateness of the remedy)
[37] Tétrault-Gadoury v. Canada (Employment and Immigration
Commission), [1991] 2 S.C.R. 22 (good
example of reading in)
[38] Miron v. Trudel, [1995] 2
S.C.R. 418 (good example of reading in)
[39] R. v. Sharpe, [2001] 1
S.C.R. 45 (good example of reading in)
[40] R. v. Seaboyer; R. v. Gayme,
[1991] 2 S.C.R. 577 (good discussion of the principles governing the
granting of constitutional exemptions; but see Ferguson)
[41] R. v. Ferguson, [2008] 1
S.C.R. 96 (the remedy of constitutional exemptions is strongly discouraged)
H.
Section 24 remedies: types and governing principles
[42] Doucet-Boudreau v. Nova Scotia (Minister of Education),
[2003] 3 S.C.R. 3 (general principles; supervision remedy); to some extent,
overtakes the discussion in Schachter v. Canada, [1992] 2 S.C.R. 679
[43] Little Sisters Book and Art Emporium v. Canada (Minister of
Justice), [2000] 2 S.C.R. 1120 (reasons for judgment only;
no s. 24 remedy)
[44] R. v. Bridges, [1990] 1
S.C.R. 190 (suspended declarations)
[45] Ardoch Algonquin First Nation v. Canada (Attorney General),
[2003] F.C.J. No. 1841 (
[46] Abdelrazik v. Canada (Foreign Affairs), 2009 FC 580 (mandatory
order requiring transportation and admission of Canadian citizen back to
[47] Canada (Prime Minister) v. Khadr,
2010 SCC 3 (mandatory order requiring Canadian government to request Khadr’s
repatriation to Canada was not appropriate on the facts of the case, where the
record was inconclusive and where the matter concerned foreign relations; the
court granted a declaration concerning Khadr’s Charter rights, leaving it for
the executive to exercise its functions and consider what actions to take
concerning Khadr “in conformity with the Charter)
[48] Eldridge v. British Columbia (Attorney General),
[1997] 3 S.C.R. 624 (declarations akin to mandatory orders)
[49] British Columbia (Minister of Forests) v. Okanagan Indian
Band, [2003] 3 S.C.R. 371 (interim costs)
[50] Little Sisters Book and Art Emporium v. Canada
(Commissioner of Customs and Revenue), [2007] 1 S.C.R. 38
(interim costs)
[51] R. v. Caron, [2009] 6
W.W.R. 438 (Alta.
[52] Winters v. Legal Services Society,
[1999] 3 S.C.R. 160 (higher scale of costs at end of trial)
[53] Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 (test for interlocutory
stays/suspensions of legislation or orders/judgments)
[54] RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311 (further explanation
of Metropolitan Stores test for interlocutory stays)
[55] 143471 Canada Inc. v. Quebec (Attorney General); Tabah v.
Quebec (Attorney General), [1994] 2 S.C.R. 339 (further explanation
of Metropolitan Stores test for interlocutory stays)
[56] Harper v. Canada (Attorney General), [2000]
2 S.C.R. 764 (further explanation of Metropolitan
Stores test for
interlocutory stays)
[57] R. v. Nasogaluak, 2010 SCC 6 at para. 64 (“I do not foreclose, but do not
need to address in this case, the possibility that, in some exceptional cases,
sentence reduction outside statutory limits, under s. 24(1) of the Charter,
may be the sole effective remedy for some particularly egregious form of
misconduct by state agents in relation to the offence and to the offender.”)
I.
Section 24 remedies (cont’d): the
complicated area of “Charter torts” and damages claims
Damages
for laws that are unconstitutional:
[58] Guimond v. Quebec (Attorney General),
[1996] 3 S.C.R. 347 and Mackin v. New Brunswick (Minister of Finance),
[2002] 1 S.C.R. 405 (Charter damages for invalid legislation available
only in cases where government was clearly wrong, engaged in abuse of process
or engaged in bad faith).
[59] Canada (Attorney General) v. Hislop,
[2007] 1 S.C.R. 429 (emerging “rule of qualified
immunity”)
Damages for other state action
(e.g., police conduct) that is unconstitutional – a conflict in the case law:
[60] Hawley v. Bapoo (2007),
156 C.R.R. (2d) 351 (Ont. C.A.); Ferri v.
Ontario (Attorney General), [2007] O.J. No. 397; Wynberg v. Ontario (2006), 269 D.L.R. (4th)
435 (Ont. C.A.); McGillivary v. New Brunswick (1994), 116 D.L.R. (4th)
104 at 108 (N.B.C.A.); R. v. Ravndahl, [2007] 10 W.W.R. 606
at para. 77 (
[61] Auton v. British Columbia (Attorney General)
(2002), 220 D.L.R. (4th) 411 (B.C.C.A.), later rev’d (“symbolic damages” under
the Charter)
[62] Canada (Attorney General) v. Hislop,
[2007] 1 S.C.R. 429 (retroactive Charter
damages; when s. 24 monetary relief will be available in conjunction
with a declaration of constitutional invalidity under s. 52)
[63] Ravndahl v. Saskatchewan,
[2009] 1 S.C.R. 181 (limitation periods and Charter damages claims)
J.
Private causes of action against government actors
In
many cases, it is unnecessary to decide Charter damages claims, as private
causes of action are available.
[64] Ryan v. Victoria (City),
[1999] 1 S.C.R. 201 (negligence, including discussion of the
“policy/operational” distinction [no liability for former; liability possible
in latter])
[65] Ingles v. Tutkaluk Construction Ltd.,
[2000] 1 S.C.R. 298 (negligence; good discussion of “policy/operational”
distinction [no liability for former; liability possible in latter])
[66] Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129 (scope
of negligence tort in the area of regulatory or police investigations)
[67] Cooper v. Hobart,
[2001] 3 S.C.R. 537 (reluctance to impose private duty of care when government
is exercising public functions under statute); Edwards v. Law Society of Upper Canada,
[2001] 3 S.C.R. 562 (reluctance to impose private duty of care when government
is exercising public functions under statute); see also Syl Apps Secure Treatment Centre v. B.D.,
[2007] 3 S.C.R. 83, especially at paras. 28 and 41; Reference re Broome v. Prince Edward Island,
2010 SCC 11
[69] Holland v. Saskatchewan, [2008] 2 S.C.R. 551 (no negligence liability for
breach of statute alone [repeating the traditional position in The Queen in right of Canada v. Saskatchewan Wheat Pool,
[1983] 1 S.C.R. 205 and Welbridge Holdings Ltd. v. Greater Winnipeg,
[1971] S.C.R. 957; liability for negligent implementation of a judicial order)
[70] Odhavji Estate v. Woodhouse,
[2003] 3 S.C.R. 263 (abuse of public office)
[71] Proulx v. Quebec (Attorney General),
[2001] 3 S.C.R. 9 (malicious prosecution)
[72] Gershman v.
[73] Kingstreet Investments Ltd. v. New Brunswick (Finance),
[2007] 1 S.C.R. 3 (restitutionary recovery to recover payments made under
invalid legislation; effectively overrules Air Canada v. British Columbia, [1989] 1
S.C.R. 1161); Ermineskin Indian Band and Nation v. Canada, [2009] 1 S.C.R. 222 (discussion
of whether a statute provided a juristic reason for enrichment, preventing
recovery)
K.
Section 24(1) in the criminal context
Abuse of process:
[74] R. v. Taillefer; R. v. Duguay,
[2003] 3 S.C.R. 307 (remedies for abuse of process and other misconduct, e.g.
non-disclosure)
[75] R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. Regan, [2002] 1
S.C.R. 297; R. v. Power, [1994] 1 S.C.R. 601; Canada (Minister of Citizenship and Immigration) v. Tobiass,
[1997] 3 S.C.R. 391 (stays
of proceedings only in the “clearest of cases”)
New
trial for non-disclosure:
[76] R. v. Bjelland, [2009] 2 S.C.R. 651
(Exclusion of evidence obtained in conformity with the Charter is only
available as a remedy under s. 24(1) of the Charter
where (a) late disclosure renders the trial process unfair and this unfairness
cannot be remedied through an adjournment and disclosure order or
(b) exclusion is necessary to maintain the integrity of the justice
system. The integrity of the justice system requires that the accused
receive a trial that is fair in that it satisfies the public interest in
getting at the truth, while preserving basic procedural fairness for the
accused.)
Funding of counsel:
[77] R. v. Rowbotham (1988), 41
C.C.C. (3d) 1 (Ont.
[78] R. v. Fisher, [1997]
S.J. No. 530 (Q.B.) (appointment and funding of counsel in appropriate
circumstances)
[79] R. v. Rushlow, 2009
ONCA 461 (appointment and funding of counsel in appropriate circumstances)
Fair trial, exclusion of evidence and
international issues:
[80] R. v. Harrer, [1995] 3
S.C.R. 562 (s. 24(1) as another source of power to exclude evidence)
[81] R. v. White, [1999] 2
S.C.R. 417 (s. 24(1) as another source of power to exclude evidence)
[82] R. v. Buric, [1997] 1 S.C.R. 535 (same)
[83] Schrieber v. Canada, [1998] 1 S.C.R. 841 (same)
[84] R. v. Terry, [1996] 2 S.C.R. 207 (same)
[85] R. v. E.(A.W.), [1993] 3 S.C.R. 155
(unfairness under s. 24(1) is evaluated “primarily” from the standpoint of the
accused but also “in the eyes of the community and the complainant”)
[86] R. v. Hape, [2007] 2
S.C.R. 292 (applicability of s. 24 to foreign investigations)
Costs against the
Crown:
[87] R. v. Pawlowski (1993), 79
C.C.C. (3d) 353 (Ont.
[88] R. v. 974649 Ontario, [2001] 3 S.C.R. 575
(costs against the Crown)
[89] R. v. Bhatti, 2006 BCCA 16 (costs against the Crown)
[90] R. v. Zarinchang, 2010 ONCA
286 (systemic failure on the part of the prosecution to respect both the statutory
and Charter rights of
detainees; Crown conduct was “improper and unacceptable” -- it failed to
make necessary arrangements to have sufficient court resources available to
deal with the known fact that there would be a massive intake of detained
persons)
Reduction of sentence:
[91] R. v. Nasogaluak, 2010 SCC 6 (Reducing sentence is not a remedy under s. 24(1) of the
Charter for breach of Charter rights.
But the facts relevant to the Charter breach may give rise to mitigating
factors that are relevant to the determination of a fit and proportionate
sentence)
L.
Civil procedure / Practical considerations
[92] Health Services and Support-Facilities Subsector Bargaining
Association v. British Columbia, 2002 BCSC
1509 (S.C.) (one solution to the problem of giving claimants access to
necessary evidence, yet preserving valid Crown interests in confidentiality)
[93] Charkaoui v. Canada (Citizenship and Immigration),
[2007] 1 S.C.R. 350 (same; more good ideas offered
about how to handle secret or confidential information: the use of Special
Advocates)
[94] Auton (Guardian ad litem of) v.
M. Remedies
for non-Charter constitutional or quasi-constitutional violations
[95] Quebec (Commission des
droits de la personne et des droits de la jeunesse) v. Communauté urbaine de
Montréal, [2004] 1 S.C.R. 789 (Quebec Charter;
quasi-constitutional legislation)
[96] Polewsky v. Home Hardware
(2003), 66 O.R. (3d) 600 (
N.
Standard of review issues concerning remedies
The
law in this area is all over the map. Clarification is required,
especially on the issue of the extent to which constitutional findings by trial
judges that involve substantial factual appreciation (e.g., certain types of
exercises of discretion) deserve any sort of deference at all. Below, I
cite only a few of the many cases that conflict on this point.
[97] Housen v. Nikolaisen, [2002] 2
S.C.R. 235 (the key case on deference to any first-instance decisions; does it
apply full force to constitutional cases?)
[98] H.L. v. Canada, [2005] 1
S.C.R. 401 (refinement of the key case)
[99] Ardoch Algonquin First Nation v. Canada (Attorney General),
2003 FCA 473 (C.A.) (example of one court suggesting that Housen applies
full force in Charter cases)
[100] Nova Scotia (Workers’ Compensation Board) v. Martin; Nova
Scotia (Workers’ Compensation Board) v. Laseur,
[2003] 2 S.C.R. 504 (the standard of review on questions of constitutional law
is correctness); see also Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190 at para 58
[101] Multani v. Commission scolaire Marguerite-Bourgeoys,
[2006] 1 S.C.R. 256 (the standard of review of orders made by administrative
tribunals that offend the constitution is correctness; will the standard of
review on questions of fact and questions of mixed law and fact that are
suffused heavily by factual considerations [e.g., fact-laden
discretions] continue to be a deferential standard?)
[102] Lake v. Canada (Minister of Justice),
[2008] 1 S.C.R. 761 and Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3 (These are two cases that seem totally contradictory on the
standard of review of Ministerial decisions in the extradition context that
have constitutional content. Multani, with its seeming “across the board”
correctness standard for all cases involving a constitutional issue, was not
cited in
[103] Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190 (standard of review of administrative tribunal decisions on
constitutional issues is correctness; does this apply to remedies questions
under ss. 24(1) and 52 involving questions of mixed fact and law?)