Charter Remedies: Overview
Part I of the Constitution Act, 1982 — the Canadian Charter of Rights and Freedoms — contains two principal remedial provisions: s.24, which empowers courts to grant individual remedies for Charter violations, and s.52(1) of the Constitution Act, 1982, which authorizes structural remedies (declarations of invalidity of unconstitutional legislation). Understanding which provision applies to a given situation is a threshold question in any Charter litigation.
Section 24(1): Appropriate and Just Remedies
Section 24(1) provides that anyone whose Charter rights or freedoms 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. Section 24(1) is a broad and flexible provision — it empowers courts to fashion remedies tailored to the specific violation.
Constitutional Damages
The Supreme Court of Canada confirmed in Vancouver (City) v Ward, 2010 SCC 27 that courts may award damages for Charter violations under s.24(1). The Ward test for constitutional damages has four steps:
- Has a Charter right been infringed? The claimant must establish a breach of a specific Charter right or freedom.
- Are damages appropriate and just? Damages are appropriate where they would (a) vindicate the right, (b) compensate the claimant, or (c) deter future violations.
- Is there a sufficient reason not to award damages? Good governance concerns, the availability of other adequate remedies, or the chilling effect on legitimate law enforcement may militate against damages.
- Are there countervailing considerations? The court may reduce or deny damages where awarding them would not serve the purposes of the Charter remedy.
Constitutional damages are assessed functionally — the quantum should vindicate the right in a meaningful way, not merely serve as nominal recognition of the breach. Courts have awarded substantial damages for serious violations of liberty interests and arbitrary detention.
Stay of Proceedings
A stay of proceedings under s.24(1) is available as a remedy for the most serious Charter violations — where proceeding with the case would be unfair to the accused or would bring the administration of justice into disrepute. The Supreme Court in R v O'Connor [1995] 4 SCR 411 recognized a stay as an exceptional remedy, available only where:
- The prejudice caused by the abuse is likely to taint the fairness of the trial, or continue to appear in the proceedings; and
- No other remedy is reasonably capable of removing that prejudice.
Common grounds for stays include: unreasonable delay under s.11(b) where the delay ceiling has been exceeded (R v Jordan, 2016 SCC 27 — 18 months in provincial court, 30 months in superior court); deliberate destruction of evidence by the Crown; and entrapment by state agents.
Other Section 24(1) Remedies
- Mandamus: An order requiring a government actor to perform a legal duty — available where the Charter requires positive action by the state;
- Prohibition: An order preventing a government actor from acting in a Charter-infringing manner;
- Declaration: A declaration that the claimant's Charter rights have been violated (available under s.24(1) where individual, not systemic, relief is sought).
Section 24(2): Exclusion of Evidence
Section 24(2) provides that where evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.
The Grant Test: Three-Step Balancing
The Supreme Court of Canada replaced the former Collins/Stillmanframework with the three-step balancing test in R v Grant, 2009 SCC 32. The court must weigh three sets of considerations:
- Seriousness of the Charter-infringing state conduct: The court asks whether admitting the evidence would send a message that state misconduct is condoned. Deliberate, systematic, or egregious Charter violations favour exclusion; good faith errors or minor technical violations favour admission.
- Impact of the breach on the Charter-protected interests of the accused:The court asks how seriously the breach affected the accused's Charter-protected interests. A significant intrusion on a core privacy interest (such as a strip search or seizure of bodily samples) weighs heavily in favour of exclusion.
- Society's interest in adjudication on the merits: The court considers the reliability of the evidence and the seriousness of the offence. Reliable evidence of a serious violent or sexual offence creates stronger pressure for admission; unreliable evidence (such as conscriptive evidence obtained through a Charter breach) favours exclusion.
The three factors are balanced to determine whether a reasonable person, fully informed of the circumstances, would conclude that admitting the evidence would bring the administration of justice into disrepute.
Application: Common Scenarios
- Arbitrary detention (s.9) and failure to inform of right to counsel (s.10(b)):If police detain an accused without reasonable grounds and fail to inform them of the right to counsel, evidence obtained (such as a statement or breathalyzer sample) may be excluded if the Grant balancing weighs in favour of exclusion.
- Unreasonable search or seizure (s.8): Evidence obtained in a warrantless search of a home or private communications will likely be excluded given the serious impact on privacy interests and the strong social message required to deter state overreach.
- Right to silence (s.7): A statement taken in breach of the accused's right to silence or the right against self-incrimination may be excluded where the breach was deliberate or the statement was conscripted.
Section 52(1): Declarations of Invalidity
Section 52(1) of the Constitution Act, 1982 provides that the Constitution 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. Where a court finds that legislation infringes the Charter and is not saved by s.1, the legislation is declared invalid under s.52(1).
Suspended Declarations of Invalidity
Courts have jurisdiction to suspend a declaration of invalidity for a period to allow the legislature to enact compliant legislation without the immediate harm of a legal vacuum. The power to suspend was confirmed inR v Schachter [1992] 2 SCR 679. Courts consider:
- Whether immediate invalidity would pose a danger to the public or the rule of law;
- Whether the legislature requires time to design a constitutionally compliant scheme;
- The balance between the right to remediation and the public interest in the continued operation of the law.
The Supreme Court has suspended declarations of invalidity in contexts as varied as criminal law provisions, electoral laws, and health care regulation.
Practice Points for Ontario Criminal and Constitutional Lawyers
- In criminal matters, identify the specific Charter breach and the evidence at issue before framing the s.24(2) application — the Grant analysis is highly fact-specific and requires a thorough record of the circumstances of the breach.
- For s.24(1) damages claims arising from police misconduct, structure the claim under the Ward four-part test and quantify the damages that would meaningfully vindicate the right — symbolic awards are unlikely to deter future violations.
- In administrative and civil Charter matters, consider whether s.52(1) invalidity is the appropriate remedy or whether individual declaratory relief under s.24(1) is sufficient — only s.52(1) can render legislation invalid for everyone.
- A stay of proceedings is an exceptional remedy — reserve it for cases of deliberate state misconduct, irreparable prejudice to a fair trial, or clear delay in excess of the Jordan ceilings.
- The Ontario Court of Appeal hears Charter appeals in criminal matters from the Superior Court of Justice; constitutional questions of broad public importance may be referred to the Supreme Court of Canada.