In today's seminar, we will
debate the following proposition:
"The law of Charter remedies is overly restrictive and is not designed
to vindicate Charter rights."
1. Final
remedies:
The
recipe for s. 24(1) remedies is found in Doucet-Boudreau
v. Nova Scotia (Minister of Education), [2003] 3 S.C.R.
3.
Examples of remedies, some restrictive, some not
include:
Vriend
v. Alberta,
[1998] 1 S.C.R. 493, especially at paras. 129-179. (Remedy of "reading in"
words rather than just suspending a declaration of invalidity.)
Little Sisters Book and Art Emporium v. Canada
(Minister of Justice), [2000] 2 S.C.R. 1120, especially at paras.
154-158. (Specific remedy denied -- customs officials simply to obey
principles set out in the judgment.)
R. v. Sharpe, [2001] 1 S.C.R. 45, especially at paras.
111-127. (Remedy of "reading in" words.)
R.
v. Hall,
[2002] 3 S.C.R. 309, especially at paras. 43-44 (majority) and paras.
120-128 (dissent). (Members of the Supreme Court sharply disagree
over the advisability of reading in.)
Auton
(Guardian ad Litem of) v. British Columbia (Attorney
General), 2002 BCCA 538 (B.C.C.A.), particularly at paras.
75-77 (majority) and paras. 124-129 (minority reasons adopted by majority)
on the issue of the availability of a mandatory remedy and paras. 93-99 on
damages. The case was overturned in the S.C.C.
Abdelrazik v. Canada (Foreign
Affairs), 2009 FC
580 (mandatory order requiring transportation
and admission of Canadian citizen back to Canada; some supervision added);
see also Canada
(Prime Minister) v. Khadr, 2009 FCA 246.
Canada (Attorney General) v.
Hislop
, [2007] 1
S.C.R. 429 (damages arising from laws that infringe the
Constitution);
Ward
v. British Columbia, 2009 BCCA 23, leave to S.C.C. granted
June 18, 2009 (damages for conduct that infringes the
Constitution).
2. Interlocutory
Remedies
RJR
- MacDonald Inc. v. Canada (Attorney
General),
[1994] 1 S.C.R. 311. (interim stays of legislation and administrative
decisions).
Little
Sisters Book and Art Emporium v. Canada (Commissioner of Customs and
Revenue), [2007] 1 S.C.R. 38 (interim
costs).
