Charter Remedies
| This page was last substantively updated or reviewed January 2016. (Rev. # 87289) |
General Principles
A violation of the Charter permits the petitioning party to request a remedy from the court. The form of the remedies varies slightly depending on the level of court. The primary difference being the powers
Section 24(1) of the Charter
Section 24(1) provides a broad scope of remedies to the court.[1]
Section 24(1) states:
- Enforcement
- Enforcement of guaranteed rights and freedoms
24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
–
The choice of remedy upon violation of a constitutional provision is entitled to discretion.[2]
Where there is an error in principle, relies on irrelevant factors, or is unreasonable, the appellate court may intervene.[3]
- Unreasonable Detention
Where an officer detains someone for longer than what is permitted under s. 503(1)(a), the remedies include sentence credit at sentencing.[4]
- Abuse of Process
- ↑ Mills v The Queen, 1986 CanLII 17 (SCC), [1986] 1 SCR 863, per McIntyre J, at para 278 ("What remedies are available when an application under s. 24(1) of the Charter succeeds? Section 24(1) ... merely provides that the appellant may obtain such remedy as the court considers "appropriate and just in the circumstances". It is difficult to imagine language which could give the court a wider and less fettered discretion. It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre‑empt or cut down this wide discretion. No court may say, for example, that a stay of proceedings will always be appropriate in a given type of case. Although there will be cases where a trial judge may well conclude that a stay would be the appropriate remedy, the circumstances will be infinitely variable from case to case and the remedy will vary with the circumstances.")
- ↑
R v Simpson, 1995 CanLII 120 (SCC), [1995] 1 SCR 449 rev’g (1994), 1994 CanLII 4528 (NL CA), 117 Nfld & PEIR 110, at paras 67 to 69 (CCC)
- ↑ R v Babos, 2014 SCC 16 (CanLII), [2014] 1 SCR 309, per Moldaver J, at paras 48 to 49
- ↑
R v B(S), 2014 ONCA 527 (CanLII), 121 OR (3d) 145, per Rosenberg JA, at para 13
R v Rashid, 2010 ONCA 591 (CanLII), 259 CCC (3d) 289, per curiam, at paras 6-7
Declaration of Invalidity
- Powers of Provincial Court
A provincial court judge has no power to make a "declaration" that a law is of "no foce or effect" under s. 52(1) of the Charter of Rights and Freedoms.[1] They may, however, decide to "decline to apply the law" on the basis of a provision's unconstitutionality. Only a court of "inherent jurisdiction" (i.e. a superior court) may make such a declaration.[2]
- ↑ R v Lloyd, 2016 SCC 13 (CanLII), [2016] 1 SCR 130, per McLachlin CJ, at para 15 ("The law on this matter is clear. Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power. However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them.")
- ↑
Lloyd, ibid., at para 19
R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), at p. 316 (“it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute.”)