What remedy can I get if I prove my Charter case?
When you are making a Charter argument, you must specify what remedy you are seeking. There are a wide variety of remedies you can seek.
Challenges to Legislation
If you are challenging a statute or by-law, it must, in purpose and effect, comply with the Charter. If it does not, it is of “no force or effect” and the Court can:
Strike down the law -- the law is struck in its entirety;
Read Down -- If a law is over-inclusive, while the core of the law does not breach the Charter, it may also capture activities that violate the Charter. A law can be read down to limit its scope to only those actions which do not breach the Charter.
Reading In -- In other situations, the law was drafted in an under-inclusive way that it fails to include all individuals and actions. In these cases, the Court can insert an interpretation into the law to make it Charter compliant.
Constitutional Exemption -- In these cases, the law stands, but a specific individual is exempted from its application.
Severance – The Court can remove the portion of the law that offends the Charter, and keep the rest of the law intact.
The Court has the choice of making its order effective immediately, or may postpone its effectiveness for a specific duration (for example, one year). This permits the government to fix the breach and enact a new law that does not offend the Charter.
Once the order takes effect, it is effective from the date the invalid law was passed, or, if prior to the creation of the Charter, on the date the Charter came into effect (April 17, 1982)
Challenges to Government Action
If you are challenging a government action, the Court has a wide discretion to award a remedy that it “considers appropriate and just in the circumstances” (see: s. 24 of the Charter).
In civil cases, Courts typically make the following Orders:
Declaratory Relief -- The Court declares what your rights are, and then lets the government determine how to accommodate you on a go-forward basis.
Compensation -- Charter rights are often intangible and cannot be quantified with money. For this reason, Courts do not typically award money damages for Charter breaches. Compensation case be ordered, especially in cases where the government’s actions are clearly wrong or made in bad faith.
Most Charter arguments arise in criminal cases. For example, evidence may have been gathered against an accused in an illegal search. In these cases, the Court’s remedy is often closely linked to the infringed right. For example, the Court has the power to:
exclude illegally obtained evidence. It will only do so where inclusion “would bring the administration of justice into disrepute” (see more discussion on this right here)
Order that a lawyer be appointed for the accused.
Order that charges be “stayed” against the accused (in other words, the proceedings against the accused are stopped).