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Enforcement of Rights Enforcement and charter rights correspond with step 4 of the charter analysis framework. Introduction  Framework: Schachter  Application: Vriend, M v H Temporary suspension of declaration of invalidity Constitutional exemptions  Carter v Canada (Attorney General), 2015 SCC 5  Carter v. Canada (AG), 2016 SCC 4 Section 24 (of the Charter) 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.

Section 52 (of the Constitution 1982) 52 (1) The Constitution of Canada 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.

[24(2) provides for the exclusion of evidence in certain circumstances – you dealt with that in criminal law]

Section 52 (of the Constitution 1982) 52 (1) The Constitution of Canada 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. - S.52 is about striking down legislation - Fits in with constitutional supremacy: courts are called upon to uphold const values and if a law isn’t consistent with the constitution, then it will be struck down. - We have moved away from an era of parliamentary supremacy to constitutional supremacy but we respect the role of the legislature. An implication of the availability of relief for Charter violations under s.52 is that standing to raise Charter issues may be extended beyond those whose rights have been directly infringed - S 52 relief – available only where laws are being challenged - S. 24 relief – available where the Charter infringement is a result of the actions of public officials, including police who are operating outside their legitimate scope of authority - individual s24 remedy won’t be available when a declaration of invalidity has been granted under s.52(1) The Charter contains three provisions that govern the granting of remedies where there is a finding of unconstitutionality. Section 24(1) provides remedies against unconstitutional government action; section 24(2) provides for the exclusion of evidence obtained in violation of the Charter; and section 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.

What is the relationship between section 24(1), section 24(2) and section 52(1) of the Constitution Act, 1982? https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art241.html

Where a Charter violation occurs as a result of government action or decision, section 24(1) is available to provide a remedy (R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 [hereinafter “ Dunedin”] 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 section 52(1) of the Constitution Act, 1982. This means that where section 52(1) is not engaged because the relevant statute or legislative provision is not in itself unconstitutional, section 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 719720; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 at paragraph 144). An individual remedy under section 24(1) for the enactment of unconstitutional legislation will “rarely be available in conjunction with an action under section 52(1)” (Schachter, supra at page 720). The courts generally do not award, e.g., retroactive damages where a section 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 section 24(1) remedy in conjunction with a section 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 section 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 section 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 section 52(1) under the heading “Temporary suspension”. The words of section 24 indicate that section 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 section 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 section 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 section 24(1) (R. v. White, [1999] 2 S.C.R. 417 at paragraph 89).

Purpose of Constitutional Remedies (K. Roach) - The main purpose of constitutional remedies are the correction of constitutional violations and the regulation of government behavior - the needs to balance the interests affected by remedies and to respect institutional roles - Corrective theory – judges are only justified and competent to order remedies to the extent that they repair harms caused by a govts violation. And when violation is proved they should insist on full correction w/o attempting either to balance the affected interests or change govt behavior in the future - Const remedies that attempt to regulate govt behavior are associated with a public model of adjudication which stressed that remedial decision-making is a more instrumental and contingent process than determining violations of const rights - Judges don’t attempt to deduce remedies from the nature of the violation but rather fashion them to achieve compliance with the const and regulate government behavior (highest law in the country to control executive)

Limits the role of the judiciary - Inclination to strike down rather than read down so not to invade legislative role - Preference for general forms of declaratory relief rather than specific or mandatory remedies - Fashion remedies to ensure compliance with constitution - Dialogue between the judiciary and the legislature

Constitutional Remedies:  Main purpose: correct constitutional breaches

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Regulate government behavior (highest law in the country to control executive) Limits on role of the judiciary Inclination to strike down rather than read down so not to invade legislative role Remedies restore victims to position they were in before Judiciary can balance interests Fashion remedies to ensure compliance with constitution Dialogue between the judiciary and the legislature

Remedies under Section 52(1) - Many ways to structure more limited remedies that will save the permissible applications of the law and preclude the impermissible. - There are a number of variations on a simple declaration of invalidity: 1. Severance: Severance of constitutionally inconsistent provisions (and strike down), inconsistency defined as something improperly included in the statute which can be severed and struck down (Schacter v Canada) 2. Reading down: (choosing the interpretation of the statute that is consistent with the constitution) 3. Reading in - (add words to the act to make it consistent with constitution) (Vriend/Schachter), Ex: Statute 2 – Reading in A [and B] benefits  same remedy for both = B included, inconsistency is defined as what the statute wrongly excludes rather than what it wrongly includes (Schacter) 4. Constitutional exemptions, declaration of invalidity (nullification) 5. Temporary suspension of a declaration of invalidity -- may fail to provide adequate redress (remedy for a wrong) for a violation of Charter rights because it allows for a state of affairs that has been found to violate the Charter to persist for a period of time despite the violation (M v H) 6. Other remedies can be fashioned by courts Two Guiding Principles: (will be discussed again in Schacter) Respect for the role of the legislature  Avoid undue interference with legislative sphere (when reading in, be faithful to scheme enacted by legislature)  Degree to which a remedy intrudes in legislative sphere can only be determined by carefully looking at objective in legislation Respect for the purposes of the Charter  Remedies key to maintaining/protecting Charter rights  Courts might have to weigh competing Charter values  Take into account interests of majority and minority alike  Cases where government may defer the issue to the courts

There are a number of variations on a simple declaration of invalidity under s.52: i. Declaration of Invalidity (Nullification): striking down a law entirely. Could be taking away benefits from others ii. Severance of constitutionally inconsistent provision (and strike down): where only part of the statute is inconsistent with the constitution, then we can remove it without striking down the whole statute. Only valid when valid part can survive without invalid part. iii. Reading in: Adding words to make the act consistent with the constitution. Therefore, when it is inconsistent, and we can add something that has been improperly excluded. Reading down: Choosing the interpretation of the statute that is consistent with the constitution and therefore taking out the part that is inconsistent. iv. Temporary suspension of invalidity: giving legislature chance to remedy situation. Cons: may poses danger to public, allow for disorder of conduct, result denial of benefits to deserving people, may be seen as interfering with priorities of legislature. v. Other remedies: can be fashioned by the courts

Schachter v Canada (1992) Leading case on constitutional remedies; framework for deciding remedies Facts: Unemployment Insurance Act provided mothers with 15 weeks of maternity benefits and adoptive parents with 15 weeks of parenting leave following child placement. Father of natural child claimed “paternity benefits” but dismissed as not within provisions of Act. Schacter challenged decision arguing violation of s. 15 equality rights under Charter (s.32 discriminated between natural parents and adoptive parents). TJ agreed and trial found violation and read in granting relief under s. 24(1) extending same benefits of adoptive parents to natural.

Simplified: The plaintiff, the father of a newborn child, was denied benefits under Section 30 of the Canadian Unemployment Insurance Act, which provides up to 15 weeks of benefits for the mother, but not the father, of a newborn child. He claimed that, since Section 32 of the Act gives benefits to a claimant of either sex in the case of newly adopted children, the denial of benefits to him under Section 30 contravened Section 15 of the Charter of Rights and Freedoms, which mandates equality of treatment. The Court upheld his claim and ruled that, as long as Section 32 remains in its current form, both mothers and fathers of newborns should be entitled to benefits under Section 30. Issue: Did the trial judge have the jurisdiction to grant a remedy under s. 24(1) of the Charter? – NO, appeal allowed, no remedy needs, legislature corrected the issue. Rule: Test for Severance (AG for Alberta v AG for Canada) The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether

on a fair review of the whole matter, it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all.

Analysis: The Remedial Options Appropriate to this case The nature of the right involved: - A positive right was violated here: right to equal benefit of the law Positive rights by their very nature tend to carry with them special considerations in the remedial context - Cases involving positive rights are more likely to fall into the remedial classifications of reading down/reading in or striking down and suspending the operation of the declaration of invalidity than to mandate an immediate striking down - The benefit here is a monetary benefit for parents under the Unemployment Insurance Act, not one which Parliament is constitutionally obliged to provide to the included group or the excluded group. What Parliament is obliged to do, by virtue of the conceded s. 15 violation, is equalize the provision of that benefit. The benefit itself is not constitutionally prohibited; it is simply underinclusive. - Striking down the provision immediately would be inappropriate as such a course of action would deprive eligible persons of a benefit without providing any relief to the respondent. - BUT It’s not clear on the text of the provision alone that the purpose of it is to extend benefits to parents of newborns. So without a mandate based on a clear legislative objective, it would be imprudent for judge to take the course of reading in the excluded group into the legislation. BECAUSE this intrusion would be substantial enough to change potentially the nature of the scheme as a whole” Conclusion: Decide to read in the excluded group (biological father) General Notes relevant to the case: “This situation provides a valuable illustration of the dangers associated with reading in when legislative intention with respect to budgetary issues is not clear. In this case, reading in would not necessarily further the legislative objective and it would definitely interfere with budgetary decisions in that it would mandate the expenditure of a greater sum of money than Parliament is willing or able to allocate to the program in question.

Reading In as a remedial option under s.52 (Schacter) A court has flexibility in determining what course of action to take following a violation of the Charter which does not survive s. 1 scrutiny. S. 52 (Const 1982) mandates the striking down of any law that is inconsistent with the provisions of the Const, but only "to the extent of the inconsistency" In choosing how to apply s. 52 or s. 24 a court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration.

The Doctrine of Severance (Schacter) The courts have always struck down laws only to the extent of the inconsistency using the doctrine of severance or "reading down". Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. - When only a part of a statute or provision violates the Const, it is common sense that only the offending portion should be declared to be of no force or effect, and the rest should be spared.

- Where the offending portion of a statute can be defined in a limited manner it is consistent with legal principles to declare inoperative only that limited portion. - Test for severance recognizes that the seemingly laudable purpose of retaining the parts of the legislative scheme which don’t offend the Constitution rests on an assumption that the legislation would’ve passed the constitutionally sound part of the scheme without the unsound part.

Twin Guiding Principles (Schacter) The purposes of Reading In and Severance -- “twin guiding principles” in determining whether the remedy of reading in is appropriate 1) Respect for the role of the legislature  purpose of severance is to avoid undue intrusion/interference into the legislative sphere. - Purpose of reading in is to be faithful to scheme enacted by legislature - Degree to which a remedy intrudes in legislative sphere can only be determined by carefully looking at objective in legislation - Reading in allows the court to act in a manner more consistent with the basic purposes of the Charter  better remedy than severance 2) Respect for the purposes of the Charter - Remedies key to maintaining/protecting Charter rights - Courts might have to weigh competing Charter values - Take into account interests of majority and minority alike - Cases where government may defer the issue to the courts The twin guiding principles can only be fulfilled if due consideration is given to several additional criteria which further inform the determination as to whether the remedy of reading in is appropriate. These include remedial precision, budgetary implications, effects on the thrust of the legislation, and interference with legislative objectives. (Vriend v Albert)

Choice of Remedial Options Under s.52 – TEST (Schacter) STEP 1: Defining the Extent of the Inconsistency which must be struck down - The manner in which the law violates the Charter and the manner in which is fails to be justified under s.1 will be critical to this determination - Rational connection Test: - Where legislation is not pressing and substantial = define inconsistency broadly when striking it down - Where means to achieve objective is NOT rationally connected = inconsistency to be struck down will generally be whole portion of legislation that fails rational connection test. - Where not minimally impairing or not proportionate, more flexibility in defining extent of inconsistency = strike down, read in or severe (i.e. make more minimally impairing) STEP 2: Determine whether the inconsistency should be dealt with by severance, reading in, or whether the impugned provision must be struck down entirely:

i. Remedial Precision – important difference between severance and reading in is: In the case of severance, the inconsistent part of the statutory provision can be defined with some precision on the basis of the requirements of the Constitution. This will not always be so in the case of reading in - Not same with “reading in” as difficult to know how to extend the legislation - It is legislature’s role to fill gaps not courts ii. Interference with legislative objective – budgetary consideration cannot be used to justify a violation under s.1 - Is “reading in” appropriate? Look at to what degree the courts can make decisions that intrude on budgetary policy - If intrusion is substantial enough to change nature of scheme, then it is inappropriate Positive obligations (telling the govt what to do) that if they have budgetary co...