Subsection 24(1) – Remedies

Provision

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.

Similar provisions

The Charter contains three provisions that govern the granting of remedies where there is a finding of unconstitutionality. Subsection 24(1) provides remedies against unconstitutional government action; subsection 24(2) provides for the exclusion of evidence obtained in violation of the Charter; and subsection 52(1) of the Constitution Act, 1982 provides that a law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect.

Similar or related provisions are found in the following international instruments binding on Canada: article 2(3) of the International Covenant on Civil and Political Rights; article 2(c) of the Convention on the Elimination of All Forms of Discrimination Against Women; and articles 2(1) and 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

See also the following regional and comparative law instruments that are not legally binding on Canada but include similar provisions: article 25 of the American Convention on Human Rights and article 13 of the European Convention on Human Rights.

Purpose

This section permits a person whose rights have been infringed to apply to a “court of competent jurisdiction” for “such remedy as the court considers appropriate and just in the circumstances”. Within certain jurisdictional limits, the court’s exercise of its remedial power is discretionary.

Analysis

1. What is the relationship between subsection 24(1), subsection 24(2) and subsection 52(1) of the Constitution Act, 1982?

Where a Charter violation occurs as a result of government action or decision, subsection 24(1) is available to provide a remedy (R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 [hereinafterDunedin”] at paragraph 14). On the other hand, where the violation is the result of legislation, and not a discretionary action, the proper remedial authority is subsection 52(1) of the Constitution Act, 1982. This means that where subsection 52(1) is not engaged because the relevant statute or legislative provision is not in itself unconstitutional, subsection 24(1) of the Charter may be available to provide an individual remedy for a person whose rights have been infringed by government action (Schachter v. Canada, [1992] 2 S.C.R. 679 at pages 719-720; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 at paragraph 144).

An individual remedy under subsection 24(1) for the enactment of unconstitutional legislation will “rarely be available in conjunction with an action under subsection 52(1)” (Schachter, supra at page 720). The courts generally do not award, e.g., retroactive damages where a subsection 52(1) remedy is required to remedy unconstitutional legislation (Québec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, [2004] 1 S.C.R. 789 at paragraph 19; Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405 at paragraphs 78-79; Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347 at paragraph 18; Miron v. Trudel, [1995] 2 S.C.R. 418 at page 510). A court should only consider granting a retroactive personal subsection 24(1) remedy in conjunction with a subsection 52(1) declaration of invalidity when the claimant can demonstrate that the government’s conduct was “clearly wrong, in bad faith or an abuse of power” (Mackin, supra at paragraphs 79-83; R.v. Demers, [2004] 2 S.C.R. 489 at paragraph 62; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 at paragraph 39; Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214 at paragraph 42) or perhaps in “unusual cases where additional subsection 24(1) relief is necessary to provide the claimant with an effective remedy” (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paragraph 63). Courts can award individual prospective subsection 24(1) remedies to take effect following the expiry of a suspended declaration of invalidity if the government has not acted to address the claimant’s circumstances (Demers, supra, at paragraph 63). See also the discussion in subsection 52(1) under the heading “Temporary suspension”.

The words of section 24 indicate that subsection 24(2) was intended to be the primary basis for the exclusion of evidence because of a Charter violation. It should not be circumvented by resort to subsection 24(1) (R. v. Collins, [1987] 1 S.C.R. 265 at page 276; R. v. Therens, [1985] 1 S.C.R. 613 at pages 620-621). However evidence may be excluded pursuant to subsection 24(1) in rare cases “where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system” (R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651 at paragraph 19; Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33 at paragraph 95). Where another remedy can ensure trial fairness and the integrity of the justice system, exclusion of evidence is not “appropriate and just” (Bjelland, supra, at paragraph 24). Also, where evidence was not obtained through a breach of the Charter but use of it at trial may infringe the Charter, the remedy of exclusion is available by resort to subsection 24(1) (R. v. White, [1999] 2 S.C.R. 417 at paragraph 89).

2. Standing — Who may apply for a remedy under subsection 24(1)?

Anyone whose rights or freedoms have been directly infringed or denied may apply for a remedy. Despite the plain wording of the section ("Anyone whose rights have been violated…") indicating the contrary, subsection 24(1) applies not only in the case of actual interference with Charter guarantees, but also where an apprehension of a future interference can be established on a balance of probabilities (New Brunswick (Minister of Health & Community Services) v. G.(J.), [1999] 3 S.C.R. 46 at paragraph 51; United States of America v. Kwok, [2001] 1 S.C.R. 532 at paragraph 66).

A subsection 24(1) remedy is not generally available to a claimant who only asserts that the Charter rights of a third party have been infringed (R. v. Edwards, [1996] 1 S.C.R. 128 at paragraphs 54-55, citing Rahey v. R., [1987] 1 S.C.R. 588 at page 619 (Wilson, J. concurring); R. v. Ferguson, supra, at paragraph 61). However, a party who otherwise has standing to apply for judicial review, may apparently invoke the Charter to challenge the reasonableness of a decision whether or not their own Charter rights or freedoms are at stake and whether or not they are even capable of enjoying the right or freedom pleaded (Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 at paragraphs 33-35).

To obtain a Charter remedy, the applicant must: (1) establish an adequate factual foundation; (2) bring his or her claim at the correct stage of litigation; and (3) persuade the court that, on a balance of probabilities, his or her Charter rights have been violated (Collins, supra, at page 277).

3. What constitutes a court of competent jurisdiction to grant remedies under subsection 24(1)?

The application for a subsection 24(1) remedy must be made to “a court of competent jurisdiction.”

Section 24(1) does not extend the basic jurisdiction of the courts and tribunals; its applicability depends on a jurisdictional basis external to the Charter itself (Singh v. Canada (Minister of Employment & Immigration), [1985] 1 S.C.R. 177 at page 222).

The superior courts of each province have constant and concurrent jurisdiction to hear subsection 24(1) applications to ensure that there is always a court of competent jurisdiction (Rahey, supra, at pages 603-604; R. v. Mills, [1986] 1 S.C.R. 863, at page 956; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at page 962; Canada (Attorney General) v. McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626 at paragraph 14). They are the “default” courts of competent jurisdiction (Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at paragraph 45). However, a superior court should exercise its discretion not to hear a Charter claim where the legislature has provided other more specific and effective means to have it determined (Okwuobi v. Lester B. Pearson School Board, [2005] 1 S.C.R. 257 at paragraphs 52 and 54), or if relief is sought as a substitute for obtaining a ruling in a criminal case (Kourtessis v. Minister of National Revenue, [1993] 2 S.C.R. 53 at pages 85-90).

Whether another court or a tribunal has the requisite jurisdiction is generally a question of legislative intent. A statutory tribunal is a “court of competent jurisdiction” to apply the Charter and provide section 24 remedies in respect of Charter issues arising in matters properly before it, if it has been granted the explicit or implicit power to decide questions of law and if the legislature has not clearly withheld authority to adjudicate the Charter (R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at paragraph 22; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 at paragraph 30).

A “competent” court or tribunal will have the further jurisdiction to grant a particular remedy sought under subsection 24(1) only if to do so accords with its mandate, function and structure (Dunedin, supra, at paragraphs 41-46; R. v. Conway, supra, at paragraph 82). Even where an administrative tribunal lacks jurisdiction to grant the precise remedy sought, if it nonetheless has sufficient authority to appropriately remedy the alleged breach, it is a court of competent jurisdiction and a claimant will be required to proceed before it (Okwuobi, supra, at paragraphs 45-48). In criminal cases, the trial court is considered competent and appropriate to deal with applications for Charter remedies, unless it is necessary to have a remedy prior to trial to prevent a continuing violation (R. v. Smith, [1989] 2 S.C.R. 1120 at pages 1129-1130; Mills, supra, at page 958). A justice presiding over a preliminary inquiry does not have the jurisdiction to grant a remedy under subsection 24(1) of the Charter because a preliminary inquiry is not a "court of competent jurisdiction" (R. v. Seaboyer, [1991] 2 S.C.R. 577 at page 637; Mills, supra, at pages 954-955; R. v. Hynes, [2001] 3 S.C.R. 623 at paragraph 49; M.M. v. United States of America, 2015 SCC 62 at paragraph 40). Provincial courts of criminal jurisdiction do not have jurisdiction to grant damages as a remedy for a Charter violation (Ward, supra, at paragraph 58).

A labour arbitrator authorized by statute to make a declaration that a provision of a collective agreement has been breached and to award damages for such breach, also has jurisdiction to grant these remedies pursuant to subsection 24(1) to redress Charter violations (Weber, supra, at pages 963-964).

An extradition judge is a court of competent jurisdiction to grant Charter remedies on matters relevant to the committal stage of extradition proceedings (United States of America v. Kwok, supra, at paragraph 44). A Minister deciding whether to surrender a fugitive in the extradition process is not a court of competent jurisdiction. She or he must respect the Charter rights of the fugitive in the decision-making process, but cannot decide whether a breach of the Charter has occurred; this is a judicial function (United States of America v. Kwok, supra, at paragraph 80).

The Charter does not create routes of appeal where no statutory route exists (R. v. Meltzer, [1989] 1 S.C.R. 1764 at pages 1773-1774).

General statutes of limitation apply to bar claims for personal Charter remedies pursuant to subsection 24(1), but do not bar claims for subsection 52(1) Constitution Act, 1982 declarations in relation to challenged legislation (Ravndahl v. Saskatchewan, [2009] 1 S.C.R. 181).

It remains unclear whether a statutory immunity clause can bar claims for Charter damages under subsection 24(1). In Ernst v. Alberta Regulator, 2017 SCC 1, a majority of judges held that the claim for damages should be struck because it was barred by a statutory immunity clause. However, a different majority declined to rule on the constitutionality of the immunity clause either because of the inadequacy of the record or the failure to provide notice to the Attorney General.

4. What remedies are available under subsection 24(1)?

(i) Generally

It is “difficult to imagine language which could give the court a wider and less fettered discretion” in crafting remedies than subsection 24(1) (Mills, supra, at page 181). Nonetheless, the discretion is not unfettered: “[w]hat is appropriate and just will depend on the facts and circumstances of the particular case” (Ward, supra, at paragraph 19). Courts are to approach Charter remedies purposively and give vitality to the maxim, “where there is a right, there must be a remedy” (Doucet-Boudreau, supra, at paragraph 25). This purposive approach consists of two specific requirements: 1) the remedy must be “responsive” and promote “the purpose of the right being protected”; 2) the remedy must be effective (ibid.: PHS Community Services Society, supra, at paragraph 142).

A remedy that is “appropriate and just” fulfils the following requirements:

Because courts should expect evolution in the understanding of what is required to appropriately remedy Charter violations, the approach to Charter remedies must “remain flexible and responsive to the needs of a given case,” and they should remain open to employing remedies with “novel and creative features when compared to traditional and historical remedial practice” (at paragraph 59).

“[C]osts and practicalities” may be relevant in a court’s selection of an appropriate and just remedy (Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139 at paragraph 49).

The standards of deference applicable in reviewing the decisions of trial judges generally apply equally to their decisions in relation to the remedial provisions of section 24 (Doucet-Boudreau, supra, at paragraph 86; R. v. Carosella, [1997] 1 S.C.R. 80 at paragraphs 48-51). Appellate intervention is warranted only if the trial judge misdirected him or herself in law, committed a reviewable error of fact, or rendered a decision that is “so clearly wrong as to amount to an injustice” (R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at paragraph 48).

(ii) Civil/administrative remedies

Damages are available in appropriate cases where they would serve a “functional” purpose in remedying a Charter violation. This requires a claimant to demonstrate that damages would further one or more of the general objects of the Charter, including those of subsection 24(1), namely: compensation (remedying any personal loss the claimant has suffered); vindication (importance of upholding Charter rights); and/or deterrence (of further breaches by state actors) (Ward, supra, at paragraphs 25-31). In response to a Charter damages claim, the government may establish that other considerations render a pecuniary award inappropriate or unjust in the circumstances, e.g., double compensation or duplicative remedies; or concerns that an award of damages would interfere with “good governance” and the rule of law (Ward, supra, at paragraphs 32-45). The quantum will be determined based on evidence of pecuniary or non-pecuniary loss, as well as in light of the other functional purposes of subsection 24(1), i.e., vindication and deterrence (at paragraphs 46-57).

Where a claimant seeks Charter damages in a civil suit alleging that a Crown prosecutor breached the Charter in respect of disclosure obligations, damages are available if harm was suffered by the accused and the Crown intentionally withheld information when it knew, or would reasonably be expected to have known, that the information was material and that the failure to disclose would likely affect the accused’s ability to make full answer and defence (Henry, supra, at paragraph 82).

Declaratory relief is available under subsection 24(1), in particular where the factual record is inadequate to justify a more directive remedy that would interfere with the prerogative powers of the executive (e.g., Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44 at paragraphs 46-47). Declaratory relief can be effective and therefore sufficient because there is a tradition in Canada of state actors taking Charter declarations seriously (Association des parents de l’école Rose-des-vents, supra, at paragraph 62). On the other hand, declaratory relief was held to be inadequate in PHS Community Services Society, supra, at paragraph 148, presumably because of the urgency of the situation and perhaps the record of the Minister’s approach to the matter.

A stay of proceedings could potentially be available as a measure of last resort (see explanation below under “criminal remedies” for more detail as to when) in the civil or administrative context (e.g., security certificates) where there is a failure to disclose evidence in circumstances giving rise to a section 7 violation (Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326, at paragraphs 74-77; Harkat, supra, at paragraph 106).

Mandamus is available in exceptional circumstances, where a specific action by the executive is the only response capable of remedying the unconstitutionality (PHS Community Services Society, supra, at paragraph 150).

Injunctive relief is available, as the “power of courts to issue injunctions against the executive is central to subsection 24(1) of the Charter” (Doucet-Boudreau, supra, at paragraph 70). Interlocutory injunctive relief is also a possible subsection 24(1) remedy (RJR-MacDonald Inc. v. Canada, [1994] 1 S.C.R. 311 at pages 333-334). The 3-part American Cyanamid test should be applied in applications for interlocutory injunctions and interim stays in Charter cases: serious question to be tried; irreparable harm; balance of inconvenience (Metropolitan Stores Ltd. v. Manitoba Food & Commercial Workers, Local 832, [1987] 1 S.C.R. 110 at page 127, citing American Cyanamid v. Ethicon Ltd., [1975] A.C. 396; Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764 at paragraph 4).

The remedial power under subsection 24(1) authorizes courts to order “structural injunctions” that require ongoing judicial supervision (Doucet-Boudreau, supra, at paragraphs 72-74). The granting of such a remedy requires good evidence as to the current state of affairs (Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120 at paragraphs 157-158).

Criminal remedies

A stay of proceedings is appropriate as a last resort in the “clearest of cases,” where an abuse of process (at common law or under the Charter) either irremediably prejudices the integrity of the justice system or the accused's ability to make full answer and defence or obtain a fair trial (R. v. O'Connor, [1995] 4 S.C.R. 411 at paragraphs 68, 82; Carosella, supra, at paragraphs 52-56). The test for whether a stay is warranted is the same for both categories and consists of three requirements: (i) the prejudice must be manifested, perpetuated or aggravated through the conduct of a trial or by its outcome; (ii) no other remedy can redress the prejudice, and (iii) where the first two inquiries leave uncertainty, a balancing of the interests in favour of granting a stay against the interest that society has in having a final decision on the merits weighs in favour of a stay (Babos, supra, at paragraph 32). The seriousness of the charges will be a consideration in deciding whether to grant a stay, with more serious charges requiring a greater demonstration of prejudice (O'Connor, supra, at paragraph 78).

A stay of proceedings will be ordered as the only appropriate and just remedy for a violation of the paragraph 11(b) right to trial within a reasonable time, because a trial court effectively loses jurisdiction as a result of an unconstitutional delay (Rahey, supra, at pages 614, 617; R. v. Askov, [1990] 2 S.C.R. 1199 at page 1250; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 at paragraphs 35, 76 and 114).

Stays can be granted for serious violations of the disclosure obligation, but will typically only occur in those exceptional situations where, due to the advanced state of the proceedings, a disclosure order would be insufficient to remedy the prejudice resulting from the violation (O'Connor, supra, at paragraphs 76-77; Carosella, supra, at paragraphs 52-56). Also, if the executive is withholding relevant evidence (e.g., for national security reasons) and the judge cannot be satisfied that trial fairness is not affected and no lesser remedy can assure it, then a stay “must issue” (R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110 at paragraph 52).

A stay may be appropriate to remedy mistreatment of the accused by law enforcement officials (R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509 at paragraph 31; R. v. Paterson, 2017 SCC 15 at paragraph 22).

A stay is appropriate when a court has found a constitutional violation sufficient to quash a conviction, and a conviction in a new trial on an applicable equal or lesser alternative charge would result in a penalty of incarceration (taking into account the possibility of parole) not likely to be significantly greater than the period of time the petitioner will have already served by the new trial’s conclusion (R. v. Taillefer, [2003] 3 S.C.R. 307 at paragraph 128). (The remedy of ordering a new trial on a more serious charge would be facially unjust, as it would punish the petitioner for prevailing in his or her constitutional challenge.)

Other remedies for violations of an accused’s Charter rights include disclosure orders, permitting the accused to recall certain witnesses for examination or cross-examination, adjournments to permit the accused to subpoena additional witnesses or even, in extreme cases, declarations of mistrial (O'Connor, supra, at paragraph 57).

Where the applicable legislation does not preclude it, subsection 24(1) is available in appropriate cases to override the general rule that in criminal cases the Crown neither pays nor receives costs unless the case is governed by statute or there exist exceptional circumstances. A provincial offences court can grant legal costs against the Crown for conduct in a criminal or regulatory prosecution that constitutes, at a minimum, “a marked and unacceptable departure from the reasonable standards expected of the prosecution” in violation of the Charter (Dunedin, supra, at paragraph 87). An award of costs against the Crown in criminal and regulatory matters for violating an individual’s Charter rights is appropriate when the Crown’s conduct threatens trial fairness but may not warrant a stay of proceedings (Dunedin, supra, at paragraphs 80-89).

It is open to a court under subsection 24(1) to fix a rate of remuneration for state-funded counsel where a Charter right is at stake (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 at paragraph 67).

The issue of damages awarded during criminal trials is more complicated. As issuing declaratory relief and awarding damages do not traditionally fall within the power of criminal courts, and as such courts are not typically staffed to make the determinations necessary to award such remedies, the superior courts’ use of their inherent subsection 24(1) power to consider damage remedies for Charter violations in the context of criminal proceedings is heavily disfavoured (Mills, supra, at page 894).

Habeas corpus in the Charter context must be administered in a liberal, flexible manner (R. v. Gamble, [1988] 2 S.C.R. 595 at page 646). Where an applicant is able to demonstrate that his or her detention fails to accord with the principles of fundamental justice or otherwise offends the Charter, a court may use its subsection 24(1) powers to adjust or suspend technical rules that might otherwise defeat a petition for habeas corpus, so long as doing so would not “circumvent the appropriate appeal process” normally employed for challenging the conviction (ibid. at pages 646-649). A subsection 24(1) habeas claim cannot be used as a collateral attack on the merits of a conviction (R. v. Sarson, [1996] 2 S.C.R. 223 at paragraphs 32, 35-36). A habeas corpus claim should not substitute for judicial review of the National Parole Board (Steele v. Mountain Institution, [1990] 2 S.C.R. 1385 at page 1418). On the other hand, a subsection 24(1) claim could be used to review an alleged violation of the Charter by the National Review Board in cases in which habeas corpus might not apply (Dumas v. Leclerc Inst. of Laval, [1986] 2 S.C.R. 459 at page 465).

Habeas corpus under subsection 24(1) is not normally available to remedy denial of bail, as review of bail is normally conducted through statutory procedures that require the submission of evidence relating to the circumstances surrounding the bail decision, which is not normally presented to the court in a habeas petition (R. v. Pearson, [1992] 3 S.C.R. 665 at pages 680-681). An exception to this rule exists when a petitioner couples his or her request for habeas corpus relief under subsection 24(1) with a claim under section 52 that the law giving rise to the bail decision should be invalidated. As a judicial decision in such a context only requires consideration of the challenged law and not evidence pertaining to the petitioner’s particular circumstances, a court can adjudicate it through a habeas petition (at pages 681-682). If the claim is successful, the court can order a new bail hearing (at pages. 679, 681-682).

Section 24(1) generally should not be used to reduce a sentence in order to remedy the violation of a convicted person’s rights, as any such alleged violations can be considered in the judge’s exercise of discretion in sentencing without relying on subsection 24(1), provided that they bear the necessary connection to the sentencing exercise (R. v. Nasogaluak, 2010 SCC 6 at paragraphs 48-49 and 63-64). Resort to a subsection 24(1) remedy might be possible if “sentence reduction outside statutory limits” would be “the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and to the offender” (R. v. Nasogaluak, supra, at paragraph 64). However, it is unclear whether such an approach can be reconciled with R. v. Ferguson, supra, which may have “eliminated” (in the words of the Court in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 at paragraph 37;but see also paragraph 125 reintroducing ambiguity on the issue) constitutional exemptions, if not generally at least from legislated sentencing limits. Nonetheless, the Court in Nasogaluak implies the possibility of remedying law enforcement’s unconstitutional conduct by somehow not applying binding law (i.e., “sentence reduction outside statutory limits”) the constitutional validity of which is not itself impugned.

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