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Charter - s.24(1) Remedies (3). Canada v. Whaling [estate claim for Charter damages]
In Canada v. Whaling (Fed CA, 2025) the Federal Court of Appeal considered whether "an estate’s standing to pursue Charter damages for section 11(h) [SS: 'double jeopardy'] claims could be determined by reference to provincial and territorial estates and survival legislation", here in a class action context.
The court considers the 'standing' aspect of this case, that is - whether the estate of a deceased person has Charter standing [here under Charter s.24(1)]:[2] The Federal Court (Whaling v. Canada, 2024 FC 712 [Reasons]) answered both questions in the affirmative, holding that an estate’s standing to pursue Charter damages for section 11(h) claims could be determined by reference to provincial and territorial estates and survival legislation (hereinafter referred to as provincial survival legislation). Section 11(h) of the Charter provides that a person acquitted of an offence has the right not to be tried for it again, and that a person found guilty and punished for an offence has the right not to be tried or punished again for it.
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[4] This appeal does not raise new questions; indeed, this Court has the benefit of a well-travelled jurisprudential path. The Supreme Court of Canada’s decision in Canada (Attorney General) v. Hislop, 2007 SCC 10 [Hislop] is dispositive. ....
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[8] In the British Columbia Supreme Court, the respondent sought, and was granted, a declaration under subsection 52(1) of the Charter that, in abolishing earlier day parole for those who had already been sentenced under the Abolition of Early Parole Act, subsection 10(1) of the Act infringed section 11(h) of the Charter (Whaling v. Canada (Attorney General), 2012 BCSC 944). This decision was affirmed by the British Columbia Court of Appeal (Whaling v. Canada (Attorney General), 2012 BCCA 435) and, subsequently, by the Supreme Court of Canada (Canada (Attorney General) v. Whaling, 2014 SCC 20).
[9] Following the Supreme Court of Canada’s decision, the respondent commenced a class proceeding in the Federal Court seeking section 24(1) Charter damages on behalf of all federal inmates whose right to accelerated parole review was removed by the retrospective application of the Act.
[10] In certifying the action as a class proceeding (Whaling v. Canada (AG), 2020 FC 1074 [Certification Order]), the Certification Order provided for certain questions to be addressed in a common issues trial. These questions included whether the Abolition of Early Parole Act breached the section 11(h) Charter rights of the class members and, if so, whether the breach was justified under section 1 of the Charter. If the breach was not justified, another common issue was set as to whether damages pursuant to section 24(1) of the Charter were a just and appropriate remedy.
[11] The Certification Order also ordered that two of the common issues be determined prior to trial as preliminary questions of law:(1) Can the estate of a deceased class member in this action claim Charter damages for violation of a section 11(h) right?; and
(2) if the answer to (1) is yes, then do provincial estates statutes providing for an "“alive as of”" date prohibit or limit recovery of those Charter damages? The Federal Court Decision
[12] The Federal Court answered both questions in the affirmative.
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[17] For the reasons that follow, I would allow the appeal. The Charter itself sets the limits or boundaries with respect to who may claim remedies under section 24(1), and those limits or boundaries are unaffected by provincial survival legislation.
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Standing and the Charter
[18] As a general principle, the provisions of the Charter may be invoked only by those who enjoy its protection. A party must have standing to commence or continue a Charter claim and to invoke a Charter remedy.
[19] A party seeking to invoke the Charter may be granted standing under one of four possible paths: as of right or private standing; under the exception created by Big M Drug Mart for those who have been charged under a law which may be unconstitutional; as a participant granted public interest standing; or by the residual discretion of the court (Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, at paras. 1, 22; Canadian Egg Marketing Agency v. Richardson, 1997 CanLII 17020 (SCC), [1998] 3 S.C.R. 157, at para. 36; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 [Big M Drug Mart]).
[20] The class members’ only basis for standing in this matter is private standing.
[21] The Federal Court judge stated that, if the Charter itself "“contained a specific proscription on legal standing to pursue ""Charter claims,”" then provincial survival legislation "“would have no bearing on the issue”" and the question of law would have to be answered in the negative (Reasons, at para. 90). As the Charter did not expressly proscribe actions by estates, it could be that the question could be resolved by reference to provincial law which "“supplant[s] the common law rule that actions die with the individual”" (Reasons, at paras. 91-92).
[22] However, an express proscription against the standing of an estate to seek Charter remedies is not required. The text of section 24(1), the nature of Charter rights themselves and the guidance of the Supreme Court of Canada in Hislop foreclose, with limited exceptions, an estate’s standing to invoke the remedy of Charter damages. Accordingly, provincial survival legislation cannot provide standing to pursue a section 24(1) remedy; thus, the first question of law must be answered in the negative.
Section 24(1)
[23] Charter analysis and interpretation "“must first and foremost have reference to, and be constrained by, [the text of the Constitution]”" (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, at para. 9). Consequently, "“[t]he starting point in determining whether a person has standing to apply for a remedy under s. 24(1) of the ""Charter is the text of this provision”" (R. v. Brunelle, 2024 SCC 3, at para. 43), which reads as follows: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.
24 (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances. [24] Section 24(1) itself addresses who may seek a remedy and, as such, is determinative of standing. A remedy under section 24(1) is a unique public law remedy that cannot be extrapolated from, or assimilated into, the private law context (Canada (Attorney General) v. Power, 2024 SCC 26, at para. 36). The estates’ claims are barred because they do not fall within the scope of section 24(1) and, therefore, the estates have no standing to pursue a remedy of Charter damages.
[25] Since the early days of the Charter to as recent as 2024, and at many points in between, the Supreme Court of Canada has consistently held that section 24(1) is a personal remedy against unconstitutional state action "“that can only be invoked by a claimant alleging a violation of their own constitutional rights”" and not those of a third party (R. v. Ferguson, 2008 SCC 6, at para. 61; R. v. Albashir, 2021 SCC 48, at para. 33; Big M Drug Mart, at 313). That is, standing can only be found where an individual alleges infringement of their own Charter rights.
[26] The point is well-entrenched. Professor Kent Roach stated that "“[a]lthough there are limits to a textual approach to constitutional remedies, there is a strong textual basis for concluding that a person does not have standing under s. 24(1) to obtain a remedy unless his or her own rights have been violated.”" Indeed, courts have found that estates do not have standing to seek remedy for the violation of deceased persons’ rights, as "“[i]t now appears to be settled law that a party cannot generally rely upon the violation of a third party’s ""Charter rights”" (Kent Roach, Constitutional Remedies in Canada, 2nd Edition (Toronto: Thomson Reuters, 2013) (loose-leaf updated 2023, release 2) at § 5:10).
[27] The test for standing under section 24(1) of the Charter, which provides personal remedies, differs from the test for standing under section 52(1), which provides relief that is declaratory in nature; the former test is also stricter. Again, according to Professor Roach, this narrower test "“makes sense when it is recognized that s. 24(1) remedies will generally respond to the personal and particular circumstances of those whose rights have been violated”" (Kent Roach, at § 5:10).
[28] Section 24(1) remedies are constitutionally limited, in type and scope, by the text of the section itself and a "“judge ordering a remedy must respect this boundary”" (British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228, at para. 253; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, at para. 50).
Symmetry Between Rights and Remedies
[29] The limitations on standing to pursue section 24(1) remedies align with the nature of the right in question.
[30] An estate is not "“anyone”" for the purpose of section 24(1). An estate is a collection of assets and liabilities of a person who has died. Here, we are concerned with breach of section 11(h). As no estate could have experienced a section 11(h) breach, no estate has standing to seek a section 24(1) remedy for that breach.
[31] In academic commentary, Cromwell J. observed that "“[o]nly those whose rights have been infringed or denied may apply under s. 24, and accordingly the definition of ‘anyone’ will be limited to the way in which the right in issue is defined”" (Thomas Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: The Carswell Co. Ltd., 1986) at 98). Put otherwise, the definition of "“anyone”" in section 24(1) takes its colour and content from the nature of the substantive Charter right in question as well as the context in which the term is used. This understanding of "“anyone”" is informed by other language in the Charter: for example, "“person”" in section 11, "“everyone”" in section 12 and "“individual”" in section 15.
[32] The Federal Court rightly accepted that the Charter right at issue (s. 11(h)) was a personal one. Section 11 rights can be exercised by "“any person charged with an offence,”" and an estate is not a "“person”" within the meaning of this section nor can it be "“charged with an offence.”" Here, only those federal inmates whose entitlement to accelerated parole review was abolished by the Abolition of Early Parole Act could have experienced a violation of their section 11(h) rights.
Hislop
[33] Hislop was a class proceeding that raised the question whether estates could claim a section 15(1) Charter right on behalf of deceased class members.
[34] In Hislop, amendments to the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP) opened the door for applications for survivor pensions by survivors in same-sex relationships, but limited eligibility retroactively, along with the arrears that could be claimed. Specifically, a provision in the CPP restricted an estate’s ability to claim survivor benefits, which would otherwise have been available to a surviving spouse, unless the estate applied within 12 months of the death (s. 60(2)). As CPP benefits were not available to same-sex survivors until these amendments were made to the CPP, subsection 60(2) resulted in an effective bar to estates claiming benefits for same-sex survivors that had been deceased for over 12 months prior to the amendments’ coming into force.
[35] The Supreme Court of Canada held that the estates of survivors who had died more than 12 months before the coming into force of the CPP amendments did not have standing to claim a section 15(1) Charter right on behalf of the deceased survivor. The Court stated that the use of the term "“individual”" in section 15(1) was intentional and indicated that section 15(1) applies to natural persons only. An estate is not an individual and has no dignity that may be infringed.
[36] Hislop was a class action, with many possible permutations within the class. Recognizing this, the Court gave broad guidance on estates’ standing to pursue Charter claims and carved out two exceptions.
[37] Mr. Hislop had obtained judgment while still alive, but died between the time his notice of appeal was filed in the Supreme Court of Canada and the hearing of the appeal. The Court relied on the doctrine of merger (which provides that when a judgment is obtained, the cause of action upon which the judgment is based is merged in the judgment and the judgment survives even if the original cause of action would not) to find that the estate could continue the appeal. Therefore, where a party dies pending appeal, as did Mr. Hislop, an estate can continue the claim.
[38] The Court specified a second exception. Estates of any class member who was alive on the date that argument concluded in the trial court, and who otherwise met the requirements under the CPP, were also entitled to the benefit of the Court’s decision (Hislop, at paras. 71‑77).
[39] Therefore, it is not relevant to consider whether a deceased individual invoked a Charter right, or was even aware of a Charter breach, in their lifetime when determining if an estate has standing.
[40] I do not agree with the respondent’s argument that Hislop is limited to circumstances where provincial survival legislation did not provide for standing for estates to pursue Charter claims. Nor do I agree that it should be distinguished on the basis that the remedy in that case was under section 52. Hislop does not turn on common law principles about estates’ capacity in the absence of legislation; rather, it is a Charter case about the personal nature of Charter rights. Its guidance on estate standing was not limited to those estates that were disentitled to survivor benefits.
[41] Appellate courts are consistent on this reading of Hislop and the capacity of estates to seek Charter remedies. So too are trial courts.
[42] In Grant, the Manitoba Court of Appeal, said it is "“well established”" that an estate does not have private standing or sufficient personal interest to bring a claim for section 24(1) Charter damages for alleged unconstitutional actions (Grant v. Winnipeg Regional Health Authority, 2015 MBCA 44, at paras. 44-45 [Grant]). However, the Court carved out a third exception to the general rule that estates cannot seek section 24(1) Charter remedy and granted public interest standing to the estate to pursue its Charter claim because of the unique circumstances of the case; the Charter breach was alleged to have been the very cause of death.
[43] The Ontario Court of Appeal also held that an estate did not have standing to continue a claim seeking section 24(1) Charter damages where a living plaintiff commenced the proceeding, but was deceased before the claim was determined (Giacomelli Estate v. Canada (Attorney General), 2008 ONCA 346, at paras. 16-20 [Giacomelli]). The facts of Giacomelli warrant description because of their similarity to the case at bar.
[44] Mr. Giacomelli claimed damages under section 24(1) of the Charter for alleged breaches of his sections 7 and 15 Charter rights arising from his internment during World War II as an Italian-Canadian. Mr. Giacomelli commenced the proceeding while he was alive, but was deceased before trial. The Ontario Court of Appeal, relying on Hislop, held that the estate did not have standing to pursue the section 7 and 15 claims. It found that although Hislop involved section 15, not section 7, it nonetheless applied equally to claims for breaches of section 7 Charter rights; as personal rights, section 7 rights similarly ceased at death (Giacomelli, at paras. 13, 15-16, 20).
[45] Stinson (Estate of) v. British Columbia, 1999 BCCA 761 [Stinson Estate] also bears certain similarities to the case before us. Stinson Estate involved a section 15 challenge to workers’ compensation legislation limiting survivor benefits to which a deceased person would otherwise be statutorily entitled, had they not remarried. The British Columbia Court of Appeal dismissed the case for want of standing, holding that "“[t]he rights guaranteed are personal, and the power to enforce the guarantee resides in the person whose rights have been infringed”" (Stinson Estate, at paras. 11-12). Consequently, the estate did not have private interest standing to pursue a claim for breach of a deceased’s section 15 Charter rights.
[46] The Nova Scotia Court of Appeal relied on Hislop in Lawen Estate v. Nova Scotia (Attorney General), 2021 NSCA 39, a public interest standing case, in finding that individuals who had died lack capacity to benefit from Charter remedies and, thus, that estates lack standing to advance Charter claims (at paras. 72-75).
[47] Turning to trial court decisions, an estate commenced an action for damages under section 24(1) of the Charter in the British Columbia Supreme Court in Wilson Estate v. Canada, 1996 CanLII 2417 (BCSC), 25 B.C.L.R. (3d) 181 [Wilson Estate]. In this case, the estate’s action alleged numerous Charter violations on behalf of the plaintiff, who had died while detained in police custody (Wilson Estate, at para. 23). The action was struck for disclosing no reasonable claim because section 24(1) remedies are restricted to the individual whose personal Charter rights were infringed; since the personal rights violated belonged to the deceased, there was no legal basis for the "“estate to seek a remedy for the benefit of her estate”" (Wilson Estate, at paras. 24-27).
[48] Shanthakumar v. CBSA, 2023 ONSC 3180 [Shanthakumar] involved a claim brought in the Ontario Superior Court for section 24(1) Charter damages for unlawful detention and arrest by law enforcement. One of the plaintiffs died prior to trial. Following Hislop, the Court rejected the estate’s arguments that it should be granted standing to continue the deceased’s claim on the basis that she had already started the proceeding and pleaded the breach of her Charter rights before she died. In denying the estate standing, the Court found it irrelevant whether the plaintiff had already commenced the proceeding as "“unfortunately, now that she has died, her claim under section 15(1) has also ‘died’”" (Shanthakumar, at para. 46). The Court extrapolated this reasoning to deny the estate standing to continue the plaintiff’s section 7, 8, 9, and 10 claims.
[49] No court has looked to provincial survival legislation to determine an estate’s standing to pursue a Charter claim. Rather, all courts have considered Hislop, although a section 52 case, to speak equally to section 24(1), with the result that Charter claims die with the individual.
Conclusion
[50] The limits of the Charter’s reach are determined by the Charter. Section 24(1) provides inherent limits on standing, restricting claims for remedy under this section to only those persons whose rights were breached personally. The effect of the Federal Court’s ruling is to establish an alternate route to standing via provincial survival legislation, rather than relying on the limits set out in the Charter itself (Reasons, at paras. 62, 79, 82, 84).
[51] The content and reach of the Charter do not expand or contract according to the will of provincial legislatures; otherwise, this would lead to the inconsistent application of Charter rights across the country, a consequence inimical to the Charter itself.
[52] Accordingly, I would allow the appeal and answer Question 1 in the negative: the estate of a deceased member of a class action cannot claim damages for breach of a section 11(h) Charter right. It is, therefore, unnecessary to address Question 2, which asked whether provincial estates statutes providing for an "“alive as of”" date prohibit or limit recovery of those Charter damages. . R. v. Varennes
In R. v. Varennes (SCC, 2025) the Supreme Court of Canada considered law that indictable offences should be tried by judge and jury, except where both defendant and Crown agree to judge-only trials [under CCC 469, 471 and 473 - Part XIV 'Jurisdiction']. The court allowed an appeal, here where the Quebec Court of Appeal ordered a new murder trial after the Crown refused to consent to a judge-only trial - finding two exceptions (Charter s.11(b) due to risk of COVID delay and inherent jurisdiction) to this statutory elections rule.
Here the court considers the remedial jurisdiction of Charter s.24(1) in this context:(2) Remedial Jurisdiction Under Section 24(1) of the Charter
[67] Section 24(1) of the Charter states: “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.”
[68] The text of s. 24(1) denotes a two-stage process. First, the claimant must establish a Charter infringement. Second, the court must determine what remedy is “appropriate and just in the circumstances”.
(a) Threshold: Proof of Breach
[69] To obtain relief under s. 24(1), a claimant must first prove a Charter violation on the balance of probabilities (Khadr, at para. 21).
[70] Section 24(1) remedies are available in anticipation of a probable future Charter infringement (Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 450; New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at paras. 50-51).
[71] Some courts, including the Court of Appeal in this case (at paras. 39 and 42), have cited to Cory J.’s concurring reasons in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, to argue that a higher standard of proof applies to anticipated Charter breaches, namely that there must be a “real and substantial risk”, a “high probability”, or a “virtual certainty” of a Charter breach (paras. 110-11). However, the majority in Westray did not adopt Cory J.’s position on this point.
[72] Instead, before ordering a s. 24(1) remedy, this Court’s decisions require “proof of ‘probable future harm’” (G. (J.), at para. 51, quoting Operation Dismantle, at p. 458; United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 66). There is only one standard of proof for establishing prior, ongoing, and future Charter breaches: the balance of probabilities.
[73] There is no right under the Charter to a judge-alone trial (R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296). But the Crown’s insistence on a jury trial may engage an accused’s Charter rights in the specific circumstances of a case. Here, the appellant alleged that the Crown’s failure to consent under s. 473(1) would violate his rights under ss. 7 and 11(b) of the Charter. He was therefore required to prove, as a threshold, that without intervention he would likely suffer an infringement of one or both rights.
(b) Remedy: “Appropriate and Just in the Circumstances”
[74] Once a claimant establishes an expected Charter breach, the court’s inquiry turns to what specific remedy is “appropriate and just in the circumstances”. Like all provisions of the Charter, s. 24(1) must be given a purposive and generous interpretation (R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at paras. 18-20).
[75] Courts faced with prior, ongoing, or future Charter breaches must order responsive and effective remedies (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 25). While a court’s discretion to grant a remedy under s. 24(1) is broad, it is exercised on “principled remedial discretion” (see generally Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at paras. 89-93). Over the decades, this Court has distilled factors to consider when assessing whether a proposed remedy is appropriate and just in the circumstances.
[76] An appropriate and just remedy will: (i) vindicate the claimant’s rights and freedoms; (ii) ensure future state compliance with the Charter; and (iii) compensate the claimant for the loss caused by any infringements (Doucet-Boudreau, at para. 55; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at paras. 25-29).
[77] The court must also consider whether countervailing factors make a specific remedy inappropriate in the circumstances. A s. 24(1) remedy should also: (i) respect the separation of powers; (ii) avoid imposing substantial hardships or burdens on the government; and (iii) avoid negatively impacting good governance (Ward, at paras. 38-44; Power (2024), at paras. 82-83; Doucet-Boudreau, at para. 58).
[78] Respect for the separation of powers is often a key countervailing factor.
[79] The separation of powers is “part of the foundational architecture of our constitutional order” (Power (2024), at para. 50; see also Fraser v. Public Service Staff Relations Board, 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455, at pp. 469-70). The division of the functions of state into the executive, legislative, and judicial branches promotes institutional efficiency and accountability.
[80] The doctrine respects the institutional roles and competencies of each branch, recognizing that some functions must be exclusively reserved to each branch. At the same time, our Constitution does not insist on a strict separation of powers (see P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at §§ 7:15-7:20; Power (2024), at para. 82). The Canadian form of separation of powers recognizes that the branches have overlapping and complementary responsibilities (British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506, at paras. 65-66). A robust system of checks and balances ensures that each branch achieves institutional effectiveness while curbing arbitrary or unlawful conduct. In this sense, the separation of powers permits the branches of state to work together to maintain our constitutional democracy.
[81] Section 24(1) remedies must not exceed the institutional capacity of the court and unduly intrude on the jurisdiction of the legislature or executive. Whether a proposed s. 24(1) remedy will be an “undue” interference on the executive and/or legislative branch will depend both on the nature of the Charter infringement and the interference with the other branch’s ability to fulfill its constitutional role. Courts should thus be wary not to manage the conduct of a prosecution through s. 24(1), but to instead grant carefully tailored remedies that respond to the rights infringement without unduly upsetting the prosecutorial role of the Attorney General. However, the separation of powers does not imply a hierarchy, or demand immunity from judicial review. The judiciary is itself a branch of state, and the executive must yield to a court’s constitutional duty to protect the rights and freedoms of Canadians through meaningful remedies (Power (2024), at paras. 83 and 95; Khadr, at para. 36-37).
[82] A s. 24(1) remedial analysis should also consider the anticipated nature of the rights infringement. It may be more appropriate to order a remedy to prevent the probable future Charter infringement rather than a remedy that seeks to compensate the claimant. The s. 11(b) context is illustrative. The remedy for a breach of s. 11(b) that has already occurred has been a stay of proceedings, since any lesser remedy would allow the trial to continue and thus increase the unreasonable delay.[3] But when the court determines that, without intervention, the claimant’s s. 11(b) right will probably be infringed, the same imperative for a stay does not apply. In this circumstance, the court will prefer to order a remedy short of a stay — one that will expedite the proceedings and so prevent the Charter-infringing unreasonable delay from coming to pass.
[83] The intervening Attorneys General suggest that clarity is needed on the relationship, if any, between an abuse of process and a stand-alone Charter claim (I.F., Attorney General of British Columbia, at para. 20; I.F., Attorney General of Ontario, at para. 15).
[84] Abuse of process is a common law doctrine that predates the Charter (see generally R. v. Krannenburg, 1980 CanLII 179 (SCC), [1980] 1 S.C.R. 1053, at p. 1061; Connelly v. Director of Public Prosecutions, [1964] A.C. 1254 (H.L.), at p. 1354; Cocker v. Tempest (1841), 7 M. & W. 502, 151 E.R. 864; R. Grondin, “Une doctrine d’abus de procédure revigorée en droit pénal canadien” (1983), 24 C. de D. 673, at pp. 685-86). That said, abuse of process and the Charter overlap in certain respects. It is a principle of fundamental justice under s. 7 of the Charter that a person must not be subject to an abuse of process (R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880, at p. 915). The factual underpinnings of a claim of abuse of process may also establish a breach of another Charter right (O’Connor, at para. 73; Brunelle, at para. 28).
[85] However, the common law abuse of process doctrine and s. 24(1) of the Charter each have their own remedial framework. A claimant whose Charter rights have been violated need not establish an abuse of process before obtaining a remedy under s. 24(1) (R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at para. 20). The appellant did not need to establish an abuse of process to obtain a Charter remedy in this case. Every Charter violation merits a remedy, even if that remedy is merely a judicial declaration recognizing the violation (Ward, at para. 37).
[86] It may be appropriate and just for a court to make an order under s. 24(1) that affects an exercise of core prosecutorial discretion, even absent an abuse of process. As our Court said in Jordan, “Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused’s s. 11(b) right” (para. 79; see also para. 138; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 5; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 110; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413, at para. 5). . R. v. Tavares [criminal stay]
In R. v. Tavares (Ont CA, 2025) the Ontario Court of Appeal considers the rare Charter s.24(1) criminal 'stay' remedy:[4] A stay of proceedings under s. 24(1) of the Charter, a drastic remedy in criminal law, is warranted only in the “clearest of cases”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-31. State conduct justifies a stay of proceedings in only two situations: 1) when it compromises trial fairness; or 2) when it risks undermining the integrity of the judicial process. This matter was decided under the trial fairness prong.
[5] There are three requirements that must be considered:1) there must be prejudice to the accused’s right to a fair trial interest or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Babos, at para. 32);
2) there must be no alternative remedy capable of redressing the prejudice (Babos, at para. 32); and
3) where there is still uncertainty over whether a stay of proceedings is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Babos, at para. 32). [6] This court has repeatedly said that this type of motion should not be ruled on at the outset of trial, except where the remedy sought is manifest at the outset of the proceedings: R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 18. There is good reason for this general rule, which is clear on the face of this record.
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