Section Twenty-four of The Canadian Charter of Rights and Freedoms - Remedies

Remedies

Subsection 24(1) must be distinguished from subsection 52(1) of the Constitution Act, 1982. Whereas section 52 allows the courts to invalidate laws or parts of laws for breaches of the constitution (including the Charter), section 24 has broader capabilities (hindered only by the "appropriate and just" requirement) and can only be invoked when a claimant's rights are violated. Among other things, section 24 seems to give judges the power to place positive obligations upon a government, as well as to enforce more imaginative remedies.

An example of an imaginative remedy can be found in the landmark case Doucet-Boudreau, (2003) 3 S.C.R. 3, as the claimants challenged the Nova Scotia government's delay in building French language schools as a breach of their section 23 rights. A lower-court judge had ruled in the claimants' favour, and then demanded the government report to him as construction progressed. Despite the Supreme Court minority's objections that this use of section 24 violated "fundamental justice" and the "functus officio" rule, in which a judge makes a ruling and afterwards has no role to play, the majority upheld the earlier decision. As the majority argued, section 24 is "responsive to the needs of a given case," and as such "novel remedies" may not only be permissible, but also required. The "appropriate and just" limit was defined in this case as giving the courts themselves the right to determine what is appropriate and just (although they should keep in mind traditional common law limits on judicial power; in this case it was denied that functus officio was violated), and also as requiring courts to remember that section 24 is itself a part of the constitution and allows judges to carry out their function of enforcing rights.