Section Twenty-four of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter
rights are shown to be violated. Some scholars have argued that it was actually section 24 that ensured that the Charter would not have the primary flaw of the 1960 Canadian Bill of Rights
: Namely, Canadian judges would be reassured that they could indeed strike down statute
s on the basis that they contradicted a bill of rights
.
. 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
school
s 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.
(1987), it was found that in any case, provincial superior and appellate courts, and courts created by the federal government, will qualify as a court of competent jurisdiction and may award remedies where it is considered "appropriate and just". An inferior provincial court may qualify as a court of competent jurisdiction where the remedy sought relates to trial procedure.
An administrative tribunal may qualify as a court of competent jurisdiction where it has been granted statutory jurisdiction over the parties, subject matter, and remedy sought. It is important to note that the jurisdiction over "remedy sought" means the jurisdiction as granted by statute, irrespective of the total remedies available under section 24(1) that may be applied by other courts. Even where a tribunal is not found to be a court of competent jurisdiction it is still nonetheless capable of applying the Charter. Where a tribunal has been given the power to decide questions of law it must conform to the Constitution in all of its application of law and so invalid laws must be treated as having no force or effect. However, even if the tribunal is a court of competent jurisdiction it cannot make a declaration of invalidity for any invalid law, it can only treat it as no force or effect.
Overall, section 24's "competent jurisdiction" limit on which courts may award remedies, in R. v. 974649 Ontario Inc. (2001), was taken as meaning that while Charter rights are generous, they exist within a framework set up by Parliament and the provincial governments. These elected governments have the authority to grant varying degrees of powers to courts and tribunals, and deference should be shown to the governments' decisions. Reviewing courts may, however, have to exercise interpretation regarding whether lower courts have powers to award certain remedies if it is not explicit in the laws. This involves examining whether the lower court can consider Charter arguments and if allowing the lower court to dispense section 24(1) remedies would disrupt its general operations or be too much of a work burden for the court staff.
are addressed by section 24(2). When evidence is obtained through the violation of a Charter right, the claimant is able to apply to have the evidence excluded from the trial under this section.
At common law, all evidence, regardless of how it was obtained, can be submitted in a trial. The US
exclusionary rule
excludes all evidence acquired through the violation of the Bill of Rights
. Canada has taken a middle ground, sometimes allowing for the exclusion of evidence, whenever its use threatens to bring the "administration of justice" into "disrepute."
In the 2009 case R. v. Grant
, the Supreme Court of Canada created a new test to determine when the administration of justice has been brought into disrepute (replacing the 1987 test in R. v. Collins
). The Grant test lists three factors the courts must consider: (1) the seriousness of the Charter-infringing conduct (focusing on a review of how society would view the actions of the state), (2) the impact of the breach on the Charter-protected interests of the accused (focusing on a review of how the state's actions affected the accused), and (3) society's interests in the adjudication of the case on its merits (focusing on a review of the importance and reliability of the evidence).
had established three factors to consider when determining whether to exclude evidence. First, the courts would look at whether the admission of the evidence would affect the fairness of the trial. Second, they would look at the seriousness of the Charter violation, and third, they would look at the effect of excluding the evidence on the administration of justice. Typically, evidence obtained through violating an accused's right to have counsel (section 10(b)
) or the right to security from unreasonable search and seizure (section 8
) was excluded by this section.
After Collins and other such decisions, by 2000 the Supreme Court of Canada had used the Charter to exclude evidence in 45% of section 24(2) cases that come before the Court.
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
rights are shown to be violated. Some scholars have argued that it was actually section 24 that ensured that the Charter would not have the primary flaw of the 1960 Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
: Namely, Canadian judges would be reassured that they could indeed strike down statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s on the basis that they contradicted a bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
.
Text
Under the heading "Enforcement," the section states:Remedies
Subsection 24(1) must be distinguished from subsection 52(1) of the Constitution Act, 1982Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
. 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
Doucet-Boudreau v. Nova Scotia (Minister of Education)
Doucet-Boudreau v. Nova Scotia [2003] 3 S.C.R. 3, 2003 SCC 62, was a decision of the Supreme Court of Canada which followed the Nova Scotia Supreme Court's finding that a delay in building French language schools in Nova Scotia violated the claimants' minority language educational rights under...
, (2003) 3 S.C.R. 3, as the claimants challenged the Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...
government's delay in building French language
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
school
School
A school is an institution designed for the teaching of students under the direction of teachers. Most countries have systems of formal education, which is commonly compulsory. In these systems, students progress through a series of schools...
s as a breach of their section 23
Section Twenty-three of the Canadian Charter of Rights and Freedoms
Section Twenty-three of the Canadian Charter of Rights and Freedoms is the section of the Charter that constitutionally guarantees minority language educational rights to French-speaking communities outside Quebec, and, to a lesser extent, English-speaking minorities in Quebec...
rights. A lower-court judge had ruled in the claimants' favour, and then demanded the government report to him as construction
Construction
In the fields of architecture and civil engineering, construction is a process that consists of the building or assembling of infrastructure. Far from being a single activity, large scale construction is a feat of human multitasking...
progressed. Despite the Supreme Court
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
minority's objections that this use of section 24 violated "fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
" and the "functus officio
Functus officio
Functus officio, Latin for "having performed his office," is a legal term used to describe a public official, court, governing body, statute, or other legal instrument that retains no legal authority because his or its duties and functions have been completed...
" 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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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.
Courts of competent jurisdiction
These section 24(1) remedies may only be dispensed by a "court of competent jurisdiction". In R. v. RaheyR. v. Rahey
R. v. Rahey, [1987] 1 S.C.R. 588 is a leading constitutional decision of the Supreme Court of Canada. The accused challenged a delay of over eleven months on an application for a directed verdict as violation of the right to a trial within a reasonable time under section 11 of the Charter...
(1987), it was found that in any case, provincial superior and appellate courts, and courts created by the federal government, will qualify as a court of competent jurisdiction and may award remedies where it is considered "appropriate and just". An inferior provincial court may qualify as a court of competent jurisdiction where the remedy sought relates to trial procedure.
An administrative tribunal may qualify as a court of competent jurisdiction where it has been granted statutory jurisdiction over the parties, subject matter, and remedy sought. It is important to note that the jurisdiction over "remedy sought" means the jurisdiction as granted by statute, irrespective of the total remedies available under section 24(1) that may be applied by other courts. Even where a tribunal is not found to be a court of competent jurisdiction it is still nonetheless capable of applying the Charter. Where a tribunal has been given the power to decide questions of law it must conform to the Constitution in all of its application of law and so invalid laws must be treated as having no force or effect. However, even if the tribunal is a court of competent jurisdiction it cannot make a declaration of invalidity for any invalid law, it can only treat it as no force or effect.
Overall, section 24's "competent jurisdiction" limit on which courts may award remedies, in R. v. 974649 Ontario Inc. (2001), was taken as meaning that while Charter rights are generous, they exist within a framework set up by Parliament and the provincial governments. These elected governments have the authority to grant varying degrees of powers to courts and tribunals, and deference should be shown to the governments' decisions. Reviewing courts may, however, have to exercise interpretation regarding whether lower courts have powers to award certain remedies if it is not explicit in the laws. This involves examining whether the lower court can consider Charter arguments and if allowing the lower court to dispense section 24(1) remedies would disrupt its general operations or be too much of a work burden for the court staff.
Exclusion of evidence
Practices regarding what evidence may be brought against an individual in trialsTrial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
are addressed by section 24(2). When evidence is obtained through the violation of a Charter right, the claimant is able to apply to have the evidence excluded from the trial under this section.
At common law, all evidence, regardless of how it was obtained, can be submitted in a trial. The US
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
exclusionary rule
Exclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
excludes all evidence acquired through the violation of the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. Canada has taken a middle ground, sometimes allowing for the exclusion of evidence, whenever its use threatens to bring the "administration of justice" into "disrepute."
In the 2009 case R. v. Grant
R. v. Grant
R. v. Grant is a leading decision of the Supreme Court of Canada on section 9, section 10, and section 24 of the Canadian Charter of Rights and Freedoms. The Court created a number of factors to consider when determining whether a person had been detained for the purpose of sections 9 and 10 of...
, the Supreme Court of Canada created a new test to determine when the administration of justice has been brought into disrepute (replacing the 1987 test in R. v. Collins
R. v. Collins
R. v. Collins [1987] 1 S.C.R. 265 is a leading decision of the Supreme Court of Canada on section 8 and was a leading case on section 24 of the Constitution Act, 1982 which allowed for the exclusion of evidence upon infringing the Charter...
). The Grant test lists three factors the courts must consider: (1) the seriousness of the Charter-infringing conduct (focusing on a review of how society would view the actions of the state), (2) the impact of the breach on the Charter-protected interests of the accused (focusing on a review of how the state's actions affected the accused), and (3) society's interests in the adjudication of the case on its merits (focusing on a review of the importance and reliability of the evidence).
Past interpretations
The 1987 case R. v. CollinsR. v. Collins
R. v. Collins [1987] 1 S.C.R. 265 is a leading decision of the Supreme Court of Canada on section 8 and was a leading case on section 24 of the Constitution Act, 1982 which allowed for the exclusion of evidence upon infringing the Charter...
had established three factors to consider when determining whether to exclude evidence. First, the courts would look at whether the admission of the evidence would affect the fairness of the trial. Second, they would look at the seriousness of the Charter violation, and third, they would look at the effect of excluding the evidence on the administration of justice. Typically, evidence obtained through violating an accused's right to have counsel (section 10(b)
Section Ten of the Canadian Charter of Rights and Freedoms
Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test...
) or the right to security from unreasonable search and seizure (section 8
Section Eight of the Canadian Charter of Rights and Freedoms
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...
) was excluded by this section.
After Collins and other such decisions, by 2000 the Supreme Court of Canada had used the Charter to exclude evidence in 45% of section 24(2) cases that come before the Court.
External links
- section24(2) digest by Gerard Mitchell
- section 24(2) digest at Canlii
- Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages