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Charter - s.24(1) Remedies (4). R. v. Diakoloukas [Charter s.24(1) sentence reduction remedy]
In R. v. Diakoloukas (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against conviction for "one count of possession of child sexual abuse and exploitation material (“CSAEM”)".
The court considered the Charter s.24(1) remedy of a sentence reduction, here for Charter s.8 and s.9 violations:ii. A sentence reduction is appropriate
[178] Having concluded that a stay is not necessary to achieve the forward-looking purpose of the Babos framework under the residual category, I now consider which lesser remedy best responds to the breaches of the appellant’s ss. 8 and 9 Charter rights.
[179] Indeed, the fact that the abuse of process claim in this case rested on an accumulation of Charter violations means that the appellant does “not need to establish an abuse of process to obtain a Charter remedy”: R. v. Varennes, 2025 SCC 22, 504 D.L.R. (4th) 583, at para. 85. Although the test for a stay under the residual category has not been made out, the ss. 8 and 9 breaches that occurred in this case still require a remedy under s. 24(1) of the Charter. I pause here to note that an “appropriate and just” remedy under s. 24(1) accounts not just for the integrity of the justice system as a whole, but also for the harm suffered by the claimant personally as a result of the breaches. In other words, although Babos makes clear that a stay under the residual category is not aimed at compensating the claimant’s loss, such compensation may well be a relevant factor in selecting a lesser remedy: Babos, at para. 39; Varennes, at para. 76. The only remaining question is whether that remedy should be a declaration or a sentence reduction.
[180] In my view, a sentence reduction is more appropriate. Although the breaches largely arose out of misunderstandings, the problem was compounded by Maplehurst’s casual approach after learning that this court had granted bail hours before. Such an approach by an institution tasked with ensuring lawful detentions and lawful releases from those detentions cannot be condoned. Maplehurst was long on notice that there was a release order in this case and specifically instructed Brampton to send the appellant to Maplehurst for release. Charged with knowledge of the release order, and having received at least a copy of the release order from counsel prior to the appellant’s arrival at Maplehurst, the institution failed to implement its own policy when it needlessly strip searched the appellant upon arrival. While there was no bad faith exercised by those responsible for conducting the search, as it appears that they were not aware of the release order, the fact remains that the Maplehurst Records Department did know about it. Finally, this was not an isolated incident, as nearly identical state misconduct befell Z.C. and Mr. McKenzie.
[181] While the appellant asks that his sentence be converted to a conditional sentence, in my view, such a conversion would overshoot the mark in terms of a remedy commensurate to what occurred. He committed a very serious crime. In my view, a more appropriate remedy is to reduce the sentence by one month, leaving eleven months to serve. . Société de l’Acadie du Nouveau-Brunswick v. Canada (Prime Minister)
In Société de l’Acadie du Nouveau-Brunswick v. Canada (Prime Minister) (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a NB Court of Appeal ruling that allowed a Crown appeal, this from a NB Queen's Bench ruling that held that "ss. 16(2), 16.1 and 20(2) of the Charter impose an obligation of personal bilingualism on the holder of the position of Lieutenant Governor of New Brunswick".
The court considers the appropriate Charter remedy, here a Charter s.24(1) declaration:V. Remedy
[119] An order in council is a legal instrument that results from a decision made by the Governor in Council. When it formalizes an appointment, an order in council has [translation] “a more specific, non-statutory scope” (Brun, Tremblay and Brouillet, at para. I.109). An order in council making an appointment is therefore not a law, because it does not establish “binding rules of general application” relating to “the rights and obligations of the individuals to whom they apply” (Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 64). It is simply a manifestation of the exercise of a particular power of appointment codified in the Constitution, and it grants the appointed person specific powers and privileges associated with the office of Lieutenant Governor.
[120] In the case of a government act and not a law, the appropriate remedy for an infringement of Charter rights is in theory based on s. 24(1) (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61; R. v. Albashir, 2021 SCC 48, [2021] 3 S.C.R. 531, at para. 62; see also R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 14; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 67; K. Roach, “Enforcement of the Charter — Sections 24(1) and 52(1)”, in E. Mendes and S. Beaulac, eds., Canadian Charter of Rights and Freedoms (6th ed. 2025), 1221, at § 22.04[1]). Section 24(1) allows anyone whose rights have been infringed to obtain such remedy as the court considers appropriate and just in the circumstances. The court’s determination of an appropriate and just remedy is based on its “careful perception of the nature of the right and of the infringement, the facts of the case, and the application of the relevant legal principles” (Doucet-Boudreau, at para. 52).
[121] The appellant has shown that the appointment of a unilingual Lieutenant Governor in New Brunswick infringes the rights guaranteed to it by s. 16(2) of the Charter. However, the appellant has not established, or even argued, that the federal government’s decision reflected an unreasonable balancing of the rights or freedoms protected by the Charter and the legitimate objectives pursued by the Governor in Council in appointing Lieutenant Governor Murphy (Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395). As described above, the appellant chose instead to argue its case from the standpoint of a declaration dealing with the pure question of law of the interaction between ss. 16 to 20 of the Charter and s. 58 of the Constitution Act, 1867. In these circumstances, the specific remedy of quashing the order in council making the appointment is not appropriate.
[122] The appropriate remedy is a declaration. The jurisprudence recognizes the special value of a declaration in constitutional cases. In Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, this Court noted that such a remedy, even without a coercive order, is an effective measure because it clarifies the legal situation and requires the authorities to comply with the law, while leaving them the measure of discretion they need to determine the most appropriate means of implementation (para. 46). This flexibility is of particular importance where the remedy affects the functioning of a constitutional institution whose responsibilities are closely linked to the continuity of the state, as is the case here.
[123] For these reasons, the appeal is allowed. The judgment of the New Brunswick Court of Appeal is set aside, and the judgment of the New Brunswick Court of Queen’s Bench is restored in part. The Court declares that the appointment of a Lieutenant Governor in New Brunswick who does not have the ability to understand both official languages and to communicate in these languages when performing their functions infringes s. 16(2) of the Charter. It is understood that neither the order in council making the appointment nor the acts of Lieutenant Governor Murphy are invalidated by this decision. . Fatema v. Higa
In Fatema v. Higa (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, that brought against a dismissal of a Federal Court appeal, that brought against an Associate Judge order which "struck out the appellant’s statement of claim without leave to amend because it was "“plain and obvious”" that the Federal Court lacked jurisdiction, the claim disclosed no reasonable cause of action and the claim constituted an abuse of process".
Here the court considers the Federal Court's jurisdiction, and whether the Charter extends jurisdiction:[5] The Federal Court lacks jurisdiction over the appellant’s proposed action. The Federal Court’s jurisdiction is limited to what is assigned to it by federal statutes: Canada (Prime Minister) v. Hameed, 2025 FCA 118 at paras. 25–27, citing ITO-Int’l Terminal Operators v. Miida Electronics, 1986 CanLII 91 (SCC), [1986] 1 S.C.R. 752 at p. 766 (S.C.C.). In Crowe, this Court held that no statute grants the Federal Court jurisdiction over claims based on the alleged misconduct of federally appointed judges (at para. 18; see also Feeney v. Canada, 2022 FCA 190 at paras. 10–13). Also true, but even more evident, is that the Federal Court does not have jurisdiction over the appellant’s claims against the respondent, a provincially appointed judge.
[6] Nor does the Charter empower the Federal Court to grant the relief sought by the appellant. By itself, the Charter does not grant jurisdiction to the Federal Court: Windsor (City) v. Canadian Transit Co., 2016 SCC 54 at paras. 59–65. Rather, the Federal Court may only award remedies under the Charter where it has jurisdiction over the underlying claim: Kaur v. Canada (Citizenship and Immigration), 2020 FCA 136 at para. 11, citing Mahabir v. Canada (Minister of Employment & Immigration), [1992] F.C. 133 at p. 138 (F.C.A.); see also R. v. 974649 Ontario Inc., 2001 SCC 81 at para. 15, citing Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 at p. 890 (per Lamer J., dissenting, but not on this point) (S.C.C.). Lacking jurisdiction over the wrongs alleged by the appellant, the Federal Court could not order Charter damages or other remedies.
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