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Charter - s.24(1) Remedies (2). Ontario (Attorney General) v. G.
[current doctrine re temporary suspension of s.52(1) declarations, and individual s.24(1) exemptions from suspension]
In Ontario (Attorney General) v. G. (SCC, 2020) the Supreme Court of Canada sets out current doctrine on the temporary suspension of Charter s.52(1) declarations when legislation is found unconstitutional, and when a further Charter s.24(1) individual remedy exempting the rights-claimant from the suspension may be appropriate [at paras 140-152]:(4) Suspending the Effect of Section 52(1) Declarations
[117] There are times when an immediately effective declaration of invalidity would endanger an interest of such great importance that, on balance, the benefits of delaying the effect of that declaration outweigh the cost of preserving an unconstitutional law that violates Charter rights.
[118] In total, this Court has suspended declarations of invalidity in 23 out of approximately 90 decisions in which it declared legislation to be of no force or effect for violating the Charter.[6] The approach to suspensions has varied over the last 35 years. Suspensions were initially recognized to be available when necessary to protect against serious threats to the rule of law. Then, in Schachter, this Court took an approach to granting suspensions based on determining whether cases fit into one of a list of categories — threats to the rule of law, threats to public safety, or underinclusive benefits — based on the public interest in the law’s interim application. Since then, many cases have gone beyond the Schachter categories to grant suspensions for other reasons, including concerns related to the roles and capacities of courts and legislatures. The 12 declarations of invalidity for Charter violations after Schachter between 1992 and 1997 — from Zundel to Benner — took immediate effect. By contrast, between 2003 and 2015 — from Trociuk to Carter — 13 out of 17 s. 52(1) declarations were suspended. Those more recent cases have been criticized for suspending declarations too frequently and without sufficient explanation. This case gives the Court an opportunity to recalibrate the remedial principles that guide the judicial discretion to delay the effect of a declaration of invalidity.
[119] Suspensions of declarations of invalidity have attracted significant concern even as they have come to be used in jurisdictions around the world, including Canada, Germany, South Africa, Hong Kong, and Indonesia (see, e.g., Leckey; S. Jhaveri, “Sunsetting suspension orders in Hong Kong”, in P. J. Yap, ed., Constitutional Remedies in Asia (2019), 49). While most accept that there will be some circumstances when the immediate enforcement of rights must give way to other constitutional concerns, opinions vary on the appropriate underlying principles and the right balance between them. Some argue suspensions should only be granted in “extreme cases” in order to prevent “legal chaos” (B. Bird, “The Judicial Notwithstanding Clause: Suspended Declarations of Invalidity” (2019), 42 Man. L.J. 23, at pp. 39 and 46). Others suggest that suspensions can be granted to “remand complex issues to legislative institutions” (S. Choudhry and K. Roach, “Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies” (2003), 21 S.C.L.R. (2d) 205, at p. 232), giving them the first opportunity to respond to a finding of unconstitutionality. Still others endorse an approach based on proportionality, which would import considerations from the Oakes test to require the government to demonstrate that a suspension is justified (Hoole, at pp. 136‑47; B. Ryder, “Suspending the Charter” (2003), 21 S.C.L.R. (2d) 267, at pp. 282-83). But all commentators recognize some discretion to grant suspensions in Canada.
[120] While s. 52(1) does not explicitly provide the authority to suspend a declaration,[7] in adjudicating constitutional issues, courts “may have regard to unwritten postulates which form the very foundation of the Constitution of Canada” (Manitoba Language Rights, at p. 752; see also R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 52).
[121] The power to suspend the effect of a declaration of invalidity should be understood to arise from accommodation of broader constitutional considerations and is included in the power to declare legislation invalid (see Koo Sze Yiu v. Chief Executive of the HKSAR, [2006] 3 H.K.L.R.D. 455, at para. 35). This is only one way in which giving immediate and retroactive effect to the fundamental rights and freedoms guaranteed by the Charter must, at times, yield to other imperatives. This reflects the “clear distinction between declaring an Act unconstitutional and determining the practical and legal effects that flow from that determination” (Air Canada v. British Columbia, 1989 CanLII 95 (SCC), [1989] 1 S.C.R. 1161, at p. 1195). As examples, even when a declaration of invalidity is made, other legal doctrines, including the de facto doctrine, res judicata, and the law of limitations, may restrict its retrospective reach (Hislop, at para. 101).
[122] The idea that the effect of a declaration could be suspended originally aimed to protect against a potential emergency. In 1985, in Manitoba Language Rights, nearly all of Manitoba’s legislation was declared unconstitutional for being enacted in English alone. The Court issued a temporary declaration that the laws were valid in order to give the legislature the chance to re‑enact them. The Court grounded this move in the constitutional principle of the rule of law, explicitly recognized in the preambles to the Constitution Act, 1867, and the Charter, and implicit in the “very nature of a Constitution” (Manitoba Language Rights, at p. 750). The rule of law requires the creation and maintenance of an actual order of positive laws to govern society; a legal vacuum, along with the inevitable legal chaos, would have violated that principle (p. 753). The period of temporary validity ran from the date of judgment “to the expiry of the minimum period necessary for translation, re‑enactment, printing and publishing” (p. 767).
[123] The Court suspended the effect of a declaration of invalidity for the first time in a Charter case in Swain, in which automatic detention for those acquitted on what was then called the ground of “insanity” was found unconstitutional. Lamer C.J. suspended the declaration due to a concern that if the provision was immediately struck down, judges would have to free “those who may well be a danger to the public” (p. 1021).
[124] In Schachter, Lamer C.J. recognized three categories of cases in which suspensions could be granted: threats to the rule of law, threats to public safety, and underinclusive legislation (pp. 715‑16). The first category flows directly from Manitoba Language Rights; the second corresponds with Swain; and the third category represents the circumstances of Schachter itself, in which immediate invalidity of the law would have deprived those entitled to financial benefits under the law without providing any remedy for those directly excluded from the benefits in question. All three categories reflect constitutionally grounded considerations, including recognizing the public’s interest in legislation passed for its benefit. Suspending the effect of a declaration is one tool that allows courts to preserve the rights and entitlements that existing schemes extend to the public.
[125] Schachter’s categorical approach has resulted in uncertainty about when suspensions will be granted. Some decisions have gone beyond the Schachter categories. For example, a suspension was endorsed where it promoted a co‑operative solution in the Aboriginal rights context (R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, at para. 51) and granted where it was analogous to a Schachter category (Trociuk, at para. 43). In other cases, failing to fit into a Schachter category has been given as an explanation for declining to grant a suspension (Boudreault, at para. 98; Hislop, at para. 121). At times, the Court has provided no explanation for suspending the effect of its declaration (Mounted Police Association, at para. 158; Saskatchewan Federation of Labour, at para. 103). Academic commentators have noted the lack of transparent reasoning in some of this Court’s decisions to grant suspensions (Roach (2004); Hoole, at pp. 118‑23).
[126] A principled approach makes it possible to reconcile these cases on suspended declarations, and encourage consistency and transparency. As I will explain, the government bears the onus of demonstrating that a compelling public interest, like those included in Schachter, supports a suspension. These compelling interests cannot be reduced to a closed list of categories, but will be related to a remedial principle grounded in the Constitution — typically, the principle that the public is entitled to the benefit of legislation or that courts and legislatures play different institutional roles. The categorical approach in Schachter has been overtaken by the underlying remedial principles that animated those categories. This is not surprising, given that Schachter had a limited number of cases to draw from in establishing its categorical approach.
[127] As well, the relevance of some of the underlying principles has evolved in our jurisprudence. Lamer C.J. specifically noted in Schachter that “whether to delay the application of a declaration of [invalidity] should . . . turn not on considerations of the role of the courts and the legislature, but rather on considerations . . . relating to the effect of an immediate declaration on the public” (p. 717 (emphasis added)).
[128] Nonetheless, since the late 1990s, the general principle that courts and legislatures have different roles and competencies has informed how the Court exercises its jurisdiction to suspend the effect of its declarations for a period of time. No fewer than 10 decisions of this Court have relied on the differing capacities and roles of legislatures and courts when suspending declarations’ effects.[8] Roach has argued that the dicta in Schachter quoted in the previous paragraph should be rejected or qualified in light of these decisions, and institutional roles should be explicitly recognized as a legitimate rationale for granting suspensions (Roach (2004), at p. 144). On the most expansive version of that view, suspensions allow the legislature to determine the remedy for its own breach of the Constitution, thereby “eliminat[ing] or dilut[ing] the counter‑majoritarian objection to judicial review [of statutes]” (Choudhry and Roach, at p. 227). In my view, this presupposes an unduly narrow view of the role of courts. Respecting the legislature cannot come at the expense of the functions the Constitution assigns to the judiciary: giving effect to constitutional rights and making determinations of law.
[129] Although institutional roles can be relevant to remedial discretion, the decisions that rely on them have by and large failed to transparently explain how those roles can legitimately motivate suspensions (Hoole, at pp. 118‑23). The relevance of institutional roles to granting suspensions cannot be divorced from the underlying rationale for granting suspensions in the first place: avoiding the harmful and undesirable consequences of an immediate declaration. In my view, Schachter and the cases that have come since are best reconciled by recognizing that allowing the legislature to fulfil its law making role can be a relevant consideration in whether to grant a suspension, but only when the government demonstrates that an immediately effective declaration would significantly impair the ability to legislate.
[130] In determining whether to exercise remedial discretion to suspend a declaration of invalidity, the Court should consider whether and to what extent the government has demonstrated that an immediately effective declaration would have a limiting effect on the legislature’s ability to set policy. In the vast majority of cases, as Bruce Ryder recognizes, “[a] suspended declaration neither enlarges nor diminishes the range of constitutional choices open to a legislature” (p. 285). For example, in M. v. H., in which the Court found unconstitutional the definition of “spouse” denying benefits to same‑sex spouses, the effect of a declaration of invalidity was suspended because “if left up to the courts, these issues could only be resolved on a case‑by‑case basis at great cost to private litigants and the public purse. Thus, . . . the legislature ought to be given some latitude in order to address these issues in a more comprehensive fashion” (para. 147). However, an immediately effective declaration would not have prevented the legislature from addressing the issues more comprehensively in light of the Court’s decision. By contrast, there may be some cases where an immediate declaration could create legal rights that could narrow the range of constitutional policy choices available to the government or undermine the effectiveness of its policy choices. As I shall explain, this case offers an example of a situation in which the legal rights created by the declaration of invalidity could undermine the effectiveness of the legislature’s policy choices. Even so, avoiding such restrictions on the ability to legislate is but a relevant consideration, and may not be sufficient to justify a suspension of invalidity.
[131] The benefit achieved (or harm avoided) by the suspension must then be transparently weighed against countervailing fundamental remedial principles, namely the principles that Charter rights should be safeguarded through effective remedies and that the public has an interest in constitutionally compliant legislation. This includes considering factors such as the significance of the rights infringement (Bedford, at para. 167) — for example, the weight given to ongoing rights infringement will be especially heavy when criminal jeopardy is at stake — and the potential that the suspension will create harm such as legal uncertainty (Leckey, at pp. 594‑95). Albeit in different constitutional contexts, the Constitutional Courts of South Africa and Germany have similarly recognized that the propriety of a constitutional remedy short of an immediate declaration of invalidity is a question of balancing the harms of failing to immediately protect rights against the harms of an immediate declaration (see, e.g., Coetzee v. Government of the Republic of South Africa, [1995] ZACC 7, 1995 (4) S.A. 631, at para. 76; BVerfG, 2 BvC 62/14, Decision of January 29, 2019 (Germany), at paras. 136‑37).
[132] However, a balancing approach does not mean that suspensions will be easier to justify. A categorical approach may have been intended to provide narrow circumstances in which an unconstitutional law may continue to apply temporarily, but it has not had that effect. A balancing approach permits courts to engage with the underlying principles and ensure that a delayed declaration is not ordered unless there are compelling reasons to do so. The appropriate balance will result in suspensions only in rare circumstances. Given the imperative language of s. 52(1), and the importance of the fundamental remedial principles of constitutional compliance and of providing an effective remedy that safeguards the rights of those directly affected, there is a strong interest in declarations with immediate effect. Indeed, leaving unconstitutional laws on the books can lead to legal uncertainty and instability, especially if those laws are criminal prohibitions, which compel multiple actors (including police, Crown prosecutors, and the public) to conduct themselves in a certain way (Leckey, at pp. 594‑95). Public confidence in the Constitution, the laws, and the justice system is undermined when an unconstitutional law continues to have legal effect without a compelling basis. And, of course, the violation of constitutional rights weighs heavily in favour of an immediate declaration of invalidity. A principled approach requires these countervailing factors to be weighed and does not allow for a suspension to be granted simply because the case engages, for example, public safety. In practice, therefore, a principled approach is disciplined and would be more stringent than a categorical approach, because any suspension must be specifically justified.
[133] Thus, I agree with the submissions of the Asper Centre that the government bears the onus of demonstrating that the importance of another compelling interest grounded in the Constitution outweighs the continued breach of constitutional rights. In each case, the specific interest, and the manner in which an immediate declaration would endanger that interest, must be identified and, where necessary, supported by evidence. Suspensions of declarations of invalidity will be rare. Indeed, this aligns with this Court’s recent practice. This Court has not suspended the effect of a declaration of invalidity since its decision in Carter over five years ago, making 13 immediately effective declarations that legislation was of no force or effect for violating the Charter over that period.[9]
[134] When deciding whether to grant a suspension, a court must also determine its length. In Hong Kong, the Court of Final Appeal has said that suspensions should not be granted for longer than “necessary” (Koo Sze Yiu, at para. 41). In Corbiere, on the other hand, suspending the effect of the declaration for a relatively long period allowed the legislature greater flexibility in putting its capacity to consult to use (paras. 119 and 121, per L’Heureux‑Dubé J.). In Carter v. Canada (Attorney General), 2016 SCC 4, [2016] 1 S.C.R. 13, the extension of a suspension was accompanied by a process by which any rights holder could apply for a remedy under s. 24(1) to alleviate the harmful impact of the unconstitutional provision.
[135] In my view, the onus to demonstrate the appropriate length of time remains with the government and there is no “default” length of time such as 12 months. In Manitoba Language Rights, in the absence of submissions, this Court considered itself ill‑equipped to determine the appropriate length of time for Manitoba’s legislature to re‑enact all of its legislation in both English and French (p. 769). It is the government’s responsibility to make a case for the length of the suspension it seeks.
[136] I add this. My colleagues contend that s. 33 of the Charter is an express and, thus, more legitimate source of authority that allows Parliament or a provincial legislature to suspend the effect of a declaration of invalidity. Since the Constitution gives Parliament and the provincial legislatures this power, my colleagues suggest that suspension is legislative in nature and at odds with the judicial role.
[137] This is an unsustainable proposition. Section 33 permits Parliament or a provincial legislature to temporarily exempt an Act from the application of rights and freedoms guaranteed by ss. 2 and 7 to 15 of our Charter, even for purely political reasons (Charter, ss. 32(1) and 33(1) and (2); Quebec Association of Protestant School Boards, at p. 86).When a court determines that a law violates the Charter in a manner that cannot be justified in a free and democratic society under s. 1, the court must grant the appropriate remedy. This includes, in some rare cases, delaying the effects of a declaration of invalidity based on a compelling public interest. Court‑ordered suspension leaves Parliament and the legislatures free to respond to the declaration of invalidity, including by using s. 33 (see Vriend, at paras. 139 and 178). The court cannot shirk its responsibility to remedy constitutional violations simply because s. 33 permits Parliament or a legislature to exceptionally override certain Charter rights and freedoms.
[138] The court has the authority — and responsibility — to determine whether a declaration of invalidity should be suspended. It is not for the courts to direct or encourage Parliament and the provincial legislatures to use their exceptional authority to override Charter rights and freedoms.
[139] In sum, the effect of a declaration should not be suspended unless the government demonstrates that an immediately effective declaration would endanger a compelling public interest that outweighs the importance of immediate constitutional compliance and an immediately effective remedy for those whose Charter rights will be violated. The court must consider the impact of such a suspension on rights holders and the public, as well as whether an immediate declaration of invalidity would significantly impair the legislature’s democratic authority to set policy through legislation. The period of suspension, where warranted, should be long enough to give the legislature the amount of time it has demonstrated it requires to carry out its responsibility diligently and effectively, while recognizing that every additional day of rights violations will be a strong counterweight against giving the legislature more time.
(5) Individual Remedies — Exemptions From Suspensions
[140] Where a declaration of invalidity is suspended, it often raises the issue of whether the claimant should receive an individual remedy or exemption from that suspension. The Attorney General argues that individual exemptions from suspensions should not be granted except in extreme circumstances where the claimant will not benefit from the declaration absent an exemption. He says individual exemptions create uncertainty and undermine the rule of law by applying laws to everyone except the claimants who challenged them. He says granting individual exemptions usurps the role of the legislature by imposing judicial discretion where the statute precludes it.
[141] The Attorney General also relies on a “rule” endorsed in Demers that s. 24(1) remedies cannot be combined with s. 52(1) remedies, precluding courts from granting a s. 24(1) individual remedy during the suspension period (para. 62). However, in Demers, at para. 61, Iacobucci and Bastarache JJ. drew that conclusion from a passage in Schachter cautioning that “where the declaration of invalidity is temporarily suspended, a s. 24 remedy will not often be available” (p. 720 (emphasis added)) because such a remedy would undermine the suspension. When it came to giving an individual remedy during a period of suspension, Lamer C.J. reasoned that it would be “tantamount” to giving the declaration retroactive effect.
[142] To the extent that Demers reads Schachter as setting out a hard‑and‑fast rule against combining s. 24(1) and s. 52(1) remedies, it misreads that case. As I will explain, s. 24(1) is too flexible to be restricted in this way. As other jurisprudence of this Court suggests, individual exemptions from suspensions will often be an “appropriate and just” remedy when an individual claimant has braved the storm of constitutional litigation and obtained a declaration whose benefit “enures to society at large” (Demers, at para. 99, per LeBel J.). On the other hand, where an exemption would undermine the rationale for the suspension, this will be a strong countervailing factor against granting an exemption.
[143] Section 24(1) of the Charter provides: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. [144] This Court has said that to be “appropriate and just”, a s. 24(1) remedy should meaningfully vindicate the right of the claimant, conform to the separation of powers, invoke the powers and function of a court, be fair to the party against whom the remedy is ordered, and allow s. 24(1) to evolve to meet the challenges of each case (Doucet‑Boudreau, at paras. 55‑59). In particular, an effective remedy that meaningfully vindicates the rights and freedoms of the claimant will take into account the nature of the rights violation and the situation of the claimant, will be relevant to the claimant’s experience and address the circumstances of the rights violation, and will not be “smothered” in procedural delays and difficulties (para. 55). The court’s approach to s. 24(1) remedies must stay flexible and responsive to the needs of a given case (para. 59).
[145] This Court’s jurisprudence makes clear that granting individual remedies while the effects of declarations of invalidity are suspended can be appropriate and just. The Court granted a worker disability benefits for chronic pain during the suspension of a declaration that provisions were invalid for excluding chronic pain from the workers’ compensation system (Martin, at paras. 121‑22). The Court has acquitted individuals of criminal or quasi‑criminal charges stemming from unconstitutional laws despite suspending the effects of the declarations of invalidity (Guignard, at para. 32; Bain, at pp. 105 and 165; see also Corbiere, at paras. 22‑23).
[146] A rule that individual claimants cannot be exempted from suspensions of declarations of invalidity would improperly fetter the broad discretion afforded under s. 24(1) of the Charter for courts to grant remedies they “conside[r] appropriate and just in the circumstances.” Remedial discretion is a fundamental feature of the Charter. A bar on exempting individual claimants would often be unfair to the claimant, especially given that it is a court’s decision to grant a suspension that makes the individual remedy necessary. While the reason the suspension was granted is no doubt an important consideration in granting a s. 24(1) remedy — and, as I explain below, should be taken into account when the court is considering granting an exemption — Brendan Brammall has aptly described a strict rule as prioritizing fairness to government “over all countervailing reasons, such as providing an effective remedy” (“A Comment on Doucet‑Boudreau v. Nova Scotia (Minister of Education) and R. v. Demers” (2006), 64 U.T. Fac. L. Rev. 113, at p. 117).
[147] In my view, when the effect of a declaration is suspended, an individual remedy for the claimant will often be appropriate and just. The importance of safeguarding constitutional rights weighs heavily in favour of an individual remedy. The concern for vindicating individual rights with effective remedies reaches back to Blackstone and Dicey, and continues to have force in the present day (see K. Roach, “Dialogic remedies” (2019), 17 I CON 860, at pp. 862‑65).
[148] Exempting only the claimant from a suspension may appear unfair at first glance (see, in the context of prospective remedies, Choudhry and Roach, at p. 223, fn. 65, citing Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993); Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995)). But the claimant is not in the same position as others subject to the impugned law in a key respect: the claimant who brings a successful constitutional challenge has done the public interest a service by ensuring that an unconstitutional law is taken off the books — the claimant has pursued the “right of the citizenry to constitutional behaviour by Parliament” (Thorson v. Attorney General of Canada, 1974 CanLII 6 (SCC), [1975] 1 S.C.R. 138, at p. 163). While, as the Attorney General submits, it is in the public interest for laws to apply to everyone uniformly, immediate remedies for claimants are also in the public interest. The practical realities of bringing a constitutional challenge may reduce the incentive for rights claimants to bring cases that carry substantial societal benefits (Leckey, at pp. 594‑95; Brammall, at p. 119, fn. 44, quoting Demers, at para. 99, per LeBel J.; see also Department of Justice, Research and Statistics Division, “The Costs of Charter Litigation” (2016)). Individual exemptions can temper any further disincentive caused by suspensions (Leckey, at p. 607). As a result, courts should focus not only on the case or legislation before them, but also encourage Charter compliance in the long term through their s. 24(1) remedies (Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at paras. 29 and 38).
[149] Like the decision of whether to suspend a declaration of invalidity despite the continued rights violation, there must be a compelling reason to deny the claimant an immediately effective remedy. Two examples seem apparent.
[150] First, a court must consider whether and to what degree granting an exemption in the claimant’s particular circumstances would undermine the interest motivating the suspension in the first place. Thus, the ability of the legislature to fashion policy responses to the declaration and the public interest in the interim operation of the legislation will be important considerations in determining whether an exemption can be granted. For example, when the effect of a declaration is suspended to protect public safety, an individual exemption would not be appropriate and just if it would endanger public safety. Evidence of the individual claimant’s situation, which the court will likely have, will inform whether this is the case.
[151] Second, courts may also have a compelling reason to refrain from granting an individual exemption where practical considerations like judicial economy make it inappropriate to do so. For instance, if a large group or class of claimants comes forward, it may not be practical — or even possible — to conduct the individual assessments necessary to grant them all individual exemptions.
[152] Ultimately, the public is well served by encouraging litigation that furthers the public interest by uncovering unconstitutional laws. Claimants, unlike others similarly situated, invest time and resources to pursue matters in the public interest — and those investments can pay dividends for others directly affected, especially those without the means to challenge the law themselves. Thus, if an exemption is otherwise appropriate and just, they should be exempted from suspensions in the absence of a compelling reason not to. Exemptions from suspensions will often be necessary to balance the interests of the litigant, the broader public, and the legislature. . Schachter v. Canada [contrasting Charter s.24(1) and s.52(1)]
In Schachter v. Canada (SCC, 1992) the Supreme Court of Canada allowed a Crown appeal regarding the appropriate Charter remedy, this from an appeal dismissal at the Federal Court of Appeal, this from a Federal Court ruling for "declaratory relief under s. 24(1), extending to natural parents the same [SS: EI] benefits as were granted to adoptive parents under s. 32".
Here the court delineates the s.24(1) 'individual' and s.52(1) declaration remedies, and the rare cases where they may both be available:III.Section 24(1)
A.Section 24(1) Alone
Where s. 52 of the Constitution Act, 1982 is not engaged, a remedy under s. 24(1) of the Charter may nonetheless be available. This will be the case where the statute or provision in question is not in and of itself unconstitutional, but some action taken under it infringes a person's Charter rights. Section 24(1) would there provide for an individual remedy for the person whose rights have been so infringed.
This course of action has been described as "reading down as an interpretive technique", but it is not reading down in any real sense and ought not to be confused with the practice of reading down as referred to above. It is, rather, founded upon a presumption of constitutionality. It comes into play when the text of the provision in question supports a constitutional interpretation and the violative action taken under it thereby falls outside the jurisdiction conferred by the provision. I held that this was the case in Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, when I determined that a provision which provided a labour adjudicator with discretion to make a range of orders could not have been intended to provide him with the discretion to make unconstitutional orders. The legislation itself was not unconstitutional and s. 52 was not engaged, but the aggrieved party was clearly entitled to an individual remedy under s. 24(1).
B.Section 24(1) in Conjunction with Section 52
An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with action under s. 52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52, that will be the end of the matter. No retroactive s. 24 remedy will be available. It follows that where the declaration of invalidity is temporarily suspended, a s. 24 remedy will not often be available either. To allow for s. 24 remedies during the period of suspension would be tantamount to giving the declaration of invalidity retroactive effect. Finally, if a court takes the course of reading down or in, a s. 24 remedy would probably only duplicate the relief flowing from the action that court has already taken. . Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
Here the court reviews the 'general' s.24(1) remedies Charter provision:(3) Remedies for Breaches of Charter Rights
[31] The Charter guarantees the rights and freedoms of all Canadians and provides remedies for their breach. Granting remedies is the courts’ “most meaningful function under the Charter” (Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at p. 196).
[32] It is well accepted that the need for a purposive and generous approach to Charter interpretation “holds equally true for Charter remedies as for Charter rights” (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 24). Courts have a duty to determine the appropriate constitutional remedy for a Charter violation and to ensure that the remedy is commensurate with the extent of the violation (Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203, at para. 46). This appeal is concerned with declarations of unconstitutionality under s. 52(1) of the Constitution Act, 1982 and damages under s. 24(1) of the Charter.
[33] Section 52(1) provides that the “Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.
[34] A declaration of invalidity under s. 52(1) is the “first and most important remedy” when dealing with unconstitutional legislation (Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 1). Section 52(1) establishes the supremacy of the Constitution and empowers courts to declare legislation “of no force or effect” in part or in full. This remedy allows courts to protect Charter rights while respecting the distinct role of the legislature in our constitutional order (Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, at p. 715; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at paras. 84-99).
[35] Section 24(1) provides that anyone whose Charter rights or freedoms have been infringed or denied may apply for “such remedy as the court considers appropriate and just in the circumstances”.
[36] Section 24(1) provides a “personal” or “individual” remedy in the sense that it is specific to the violation of the applicant’s rights (R. v. Albashir, 2021 SCC 48, at para. 33; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61). It must be remembered, however, that it is a “unique public law remedy” against the state that should not be assimilated to the principles of private law remedies (Ward, at paras. 22 and 31; Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181, at paras. 26-27).
[37] Like other Charter provisions, s. 24(1) must be interpreted generously and purposively (Doucet-Boudreau, at para. 24). It must be construed “in a manner that best ensures the attainment of its objects” and, more generally, benefits from the principle of statutory interpretation that remedial statutes should receive a “large and liberal” interpretation (R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 (“Dunedin”), at para. 18).
[38] The remedial discretion afforded to courts under s. 24(1) is broad. This Court has stated that “the language of this provision appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights” (Dunedin, at para. 18), and that it “is difficult to imagine language which could give the court a wider and less fettered discretion” (Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 965).
[39] The broad discretion afforded under s. 24(1) and a purposive approach to remedies combine to give meaning to the idea that Charter rights are only as meaningful as the remedies provided for their breach. In this way, s. 24(1) is “a cornerstone upon which the rights and freedoms guaranteed by the Charter are founded, and a critical means by which they are realized and preserved” (Dunedin, at para. 20).
[40] In Doucet-Boudreau, the Court noted that s. 24 must be allowed to evolve to meet the different contexts in which Charter violations occur, and must remain flexible and responsive to the needs of a given case (para. 59). In general terms, the Court explained that a just and appropriate remedy under s. 24(1) will: (1) meaningfully vindicate the claimant’s rights and freedoms; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made (paras. 55-58). . Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
Here the court considers the argument and sometimes presumption that s.24(1) 'general' Charter remedies (which include Charter damages) are not available where a s.52(1) declaration of invalidity has already been made:[44] First, Canada relies on the availability of an alternative remedy. Canada asserts that the availability of a declaration of invalidity under s. 52(1) will always render damages inappropriate and unjust. Canada asserts that damages will never be appropriate for the enactment of legislation subsequently declared unconstitutional because the declaration of unconstitutionality will always be sufficient. Canada submits that judicial review of a decision under the invalid law may also be appropriate in certain cases.
[45] While there is a general presumption against combining remedies under ss. 24(1) and 52(1) (Schachter, at p. 720; Mackin, at paras. 78-81), there is no categorical restriction. This Court has instead adopted a functional and flexible approach to combining remedies that is driven by principled and purposive considerations (Ferguson, at para. 53; G, at para. 147; Roach, Constitutional Remedies, at §§ 3:8-3:18). It is true that the existence of an alternative remedy is a countervailing consideration (Ward, at para. 33). However, the concern with alternative remedies is to avoid duplication and double recovery (para. 35; Brazeau v. Canada (Attorney General), 2020 ONCA 184, 149 O.R. (3d) 705, at para. 43). Provided an award of Charter damages is not duplicative, the potential to combine declarations and damages must remain available in situations where a declaration would fail to satisfy the functional need for compensation, vindication or to meaningfully deter future breaches (Albashir, at paras. 61-67; Ward, at para. 56; see also P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 40:13). In some cases, a declaration of invalidity alone may be an insufficient and even hollow remedy. The availability of a declaration under s. 52(1) cannot absolutely displace a claim for damages under s. 24(1). The same is true for the availability of judicial review for a decision under the invalid law.
....
[81] First, parliamentary sovereignty is not undermined by the Mackin threshold. As noted above, parliamentary sovereignty does not mean that Parliament is above the Constitution. Parliament remains subject to the constraints and accountability mechanisms of the Constitution, including the Charter. By the text of s. 32(1), the Charter specifically applies to Parliament and the provincial legislatures. The supremacy of the Constitution in relation to Parliament is well recognized in each application of s. 52 of the Constitution Act, 1982. Limited immunity does not impair Parliament’s power to make and repeal laws within the confines of the Constitution.
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