DCC Final 2119 - Week 10: Penalties and Remedies

  • Provision:

    • Section 24: Anyone whose rights or freedoms guaranteed by the Charter have been infringed may seek appropriate and just remedies from a court of competent jurisdiction

    • section 24(2) If evidence is obtained in a manner that violates Charter rights, it shall be excluded if its admission would bring the administration of justice into disrepute.

Case Example: Vancouver City v Ward

  • Facts:

    • W was mistakenly identified as a potential threat as a pie thrower during an event with the Prime Minister

    • Police chased, and detained him, leading to a strip search and seizure of his car.

    • The Supreme Court found the strip search and car seizure violated W's rights.

    • The Court found that

  • Outcome:

    • Damages were awarded under Section 24(1) of the Charter for both the seizure of car ($100) and strip search ($5,000)

    • The Supreme Court outlined a four-step process for awarding damages:

      1. Was there a Charter breach?

      2. Demonstrating how damages serve the objectives of the Charter.

      3. Considering any factors against awarding damages

      4. Determining an appropriate and just remedy based on 1, 2, and 3

  • Purpose of Compensation: to restore the claimant as closely as possible to their pre-violation condition.

    • It includes compensating for both actual and potential losses, such as vindication, protection of Charter rights, and repair of breaches.

  • Deterrent Effect:

    • Awarding damages serves to deter future breaches by governmental actors.

    • It upholds the integrity of the Charter and ensures its application in good faith.

Charter Remedies:

  • Section 24(1): Provides remedies for Charter breaches.

  • Section 24(2): Excludes evidence obtained unconstitutionally.

  • Section 52: Establishes the supremacy of the Constitution, rendering inconsistent laws void.

Relationship between Section 24 and Section 52(1) of the Constitution Act, 1982

  • Section 24: Applies when a Charter violation occurs due to governmental actions and provides remedies or challenges for governmental actions violating rights guaranteed by the Charter.

  • Section 52(1): Applies when a violation results from legislation, not discretionary actions, and declares legislation void if it is inconsistent with the Constitution of Canada.

Distinguishing Section 24 and Section 52(1):

  • Remedies:

    • Section 24 allows for personal retroactive remedies or challenges for past violations.

    • Section 52(1) typically declares legislation void, without compensation

  • Scope:

    • Section 24 applies to individuals directly or indirectly affected by Charter violations (you cant do it for a third party)

    • Section 52(1) applies to challenges against legislation, even if the claimant is not directly involved.

Burden of Proof for section 24:

  1. Claimant must establish a factual foundation for their claim.

  2. Must bring the claim at the correct stage of litigation and in a court of competent jurisdiction.

  3. Must persuade the court, on a balance of probabilities, that their Charter rights were violated.

Competent Court or Jurisdiction:

  • Section 24:

    • Superior courts of each province have concurrent jurisdiction to hear Section 24(1) applications.

    • Jurisdiction depends on external factors related to the subject matter of the claim.

Remedies Available under Section 24(1):

  • Discretionary Powers:

    • Courts have discretion to determine appropriate remedies, guided by Charter principles.

    • Purposive Approach Remedies must be

      1. responsive and promote the protection of the right granted by the charter

      2. effective, meaningful, and fair to all parties involved.

    • What is an approaote remedy

      1. Meaningful: It addresses the circumstances in which the right was violated, relevant to the claimant's experience.

      2. Respect for Constitutional Principles and may touch on executive functions if necessary for Charter protection.

      3. Within Judicial Competence and power

      4. Fairness: Doesn't impose undue hardships unrelated to securing the right and freedom.

    • Courts should remain open to innovative remedies and adapt to evolving circumstances; avoiding rigid past precedent (living tree doctrine)

Civil/Administrative Remedies under Section 24:

Damages:

  • Available if they serve a functional purpose in remedying a Charter violation.

  • Claimant must demonstrate that damages would further one or more of the general objectives:

    1. Remedying personal losses.

    2. Vindicating Charter rights.

    3. Deterring future violations.

  • Government may argue against particular awards if they are inappropriate or unjust, such as concerns over double compensation or interference with good governance.

    • For example: In a civil suit where the claimant seeks damages for breach of disclosure by the Crown, compensation is available if the victim suffered harm due to intentional withholding of information, making it difficult to provide a full defense.

Stay of Proceedings: A legal term used for a trial is stopped temporarily by the Crown or ended by a judge.

  • Used when circumstances warrant halting legal proceedings.

Mandamus: Extraordinary remedy where a superior court orders a subordinate court to perform or refrain from a specific act

  • Applicant must demonstrate entitlement to compel the government.

  • Typically applies to matters of public or comparative nature.

Injunctive Relief:

  • Restrains a party from certain actions or requires specific behavior.

  • Available when other remedies are not suitable or may cause prejudice to the victim.