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Charter - s.52(1) Declarations of Invalidity (3). Ontario (Attorney General) v. G. [current s.52(1) declaration doctrine]
In Ontario (Attorney General) v. G. (SCC, 2020) the Supreme Court of Canada updates Schachter after 3 decades, here regarding the use of 'tailored remedies' (reading-in, reading-down and severance) and general issues of respect for the legislature that should govern remedial decisions:[112] The second step is determining the form that a declaration should take. In doing so, Schachter explained that remedies other than full declarations of invalidity should be granted when the nature of the violation and the intention of the legislature allows for them. Full statutory schemes or Acts are rarely struck down in their entirety — to my knowledge, this Court has only done so on eight occasions.[3] To ensure the public has the benefit of enacted legislation, remedies of reading down, reading in, and severance, tailored to the breadth of the violation, should be employed when possible so that the constitutional aspects of legislation are preserved (Schachter, at p. 700; Vriend, at paras. 149‑50). Crucially, in Canada, the declaration issued cures the law’s unconstitutionality. A declaration that fails to do so, like the kind suggested by my colleagues, Justice Côté and Justice Brown, at para. 248 of their reasons, is more akin to the declaration of “inconsistency” or “incompatibility” made in jurisdictions where courts do not have the authority to strike down unconstitutional legislation (see, e.g., Attorney-General v. Taylor, [2018] NZSC 104, [2019] 1 N.Z.L.R. 213; Human Rights Act 1998 (U.K.), 1998, c. 42, s. 4(4) and (6)).
[113] Reading down is when a court limits the reach of legislation by declaring it to be of no force and effect to a precisely defined extent. Reading down is an appropriate remedy when “the offending portion of a statute can be defined in a limited manner” (Schachter, at p. 697). Inversely, reading in is when a court broadens the grasp of legislation by declaring an implied limitation on its scope to be without force or effect. Reading in is an appropriate remedy when the inconsistency with the Constitution can be defined as “what the statute wrongly excludes rather than what it wrongly includes” (Schachter, at p. 698 (emphasis in original)). Severance is when a court declares certain words to be of no force or effect, thereby achieving the same effects as reading down or reading in, depending on whether the severed portion serves to limit or broaden the legislation’s reach. Severance is appropriate where the offending portion is set out explicitly in the words of the legislation. These forms of remedy illustrate a court’s flexibility in responding to a constitutional violation.
[114] However, if granted in the wrong circumstances, tailored remedies can intrude on the legislative sphere. Schachter cautioned that tailored remedies should only be granted where it can be fairly assumed that “the legislature would have passed the constitutionally sound part of the scheme without the unsound part” and where it is possible to precisely define the unconstitutional aspect of the law (p. 697, citing Attorney‑General for Alberta v. Attorney‑General for Canada, 1947 CanLII 347 (UK JCPC), [1947] A.C. 503 (P.C.), at p. 518). If it appears unlikely that the legislature would have enacted the tailored version of the statute, tailoring the remedy would not conform to its policy choice and would therefore undermine parliamentary sovereignty (Schachter, at pp. 705‑6; Hunter, at p. 169). The significance of the remaining portion of the statute must be considered, and tailored remedies should not be granted when they would interfere with the legislative objective of the law as a whole (Schachter, at pp. 705‑15). For example, in Vriend, Iacobucci J. read “sexual orientation” into the Individual’s Rights Protection Act, R.S.A. 1980, c. I-2, because the term was sufficiently precise and because the legislature would rather have included that protection than sacrificed the entire scheme (paras. 155‑60 and 167‑69). In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, McLachlin C.J. severed part of the tertiary ground for denying bail because the rest of the provision “is capable of standing alone without doing damage to Parliament’s intention” (para. 44). This Court has granted a remedy short of full invalidity of a statutory provision at least 24 times.[4] Nonetheless, a tailored remedy will frequently not be appropriate. This Court has opted to fully invalidate a provision at least 55 times.[5] These include the cases dealing with mandatory minimum penalties referenced above — the goal of a mandatory minimum sentence is to remove judicial discretion, so tailoring the declaration to reintroduce that discretion would distort the provision so that it no longer conformed to its legislative purpose (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 50 and 53).
[115] Lamer C.J. was also conscious of the limitation of the judicial role, explaining in Schachter that tailored remedies should not be granted when they do not “flo[w] with sufficient precision from the requirements of the Constitution”, because although courts are capable of determining what the Constitution requires, they are not well‑suited to making “ad hoc choices from a variety of options” (p. 707).
[116] In sum, consistent with the principle of constitutional supremacy embodied in s. 52(1) and the importance of safeguarding rights, courts must identify and remedy the full extent of the unconstitutionality by looking at the precise nature and scope of the Charter violation. To ensure the public retains the benefit of legislation enacted in accordance with our democratic system, remedies of reading down, reading in, and severance, tailored to the breadth of the violation, should be employed when possible so that the constitutional aspects of legislation are preserved (Schachter, at p. 700; Vriend, at paras. 149‑50). To respect the differing roles of courts and legislatures foundational to our constitutional architecture, determining whether to strike down legislation in its entirety or to instead grant a tailored remedy of reading in, reading down, or severance, depends on whether the legislature’s intention was such that a court can fairly conclude it would have enacted the law as modified by the court. This requires the court to determine whether the law’s overall purpose can be achieved without violating rights. If a tailored remedy can be granted without the court intruding on the role of the legislature, such a remedy will preserve a law’s constitutionally compliant effects along with the benefit that law provides to the public. The rule of law is thus served both by ensuring that legislation complies with the Constitution and by securing the public benefits of laws where possible.
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(6) General Remedial Principles for Legislation That Violates the Charter
[153] As I have explained, running through this Court’s remedial practice — from determining the form and breadth of remedies involving legislation, to suspending the effect of those remedies, to exempting litigants from suspensions — are recurring touchstones. These guide the principled discretion that this Court exercises when granting remedies for legislation that violates the Charter.
[154] Safeguarding rights lies at the core of that remedial approach. Section 52(1) calls for courts to invalidate any legislation to the extent it violates the Charter. The Charter “constrain[s] government action in conformity with certain individual rights and freedoms, the preservation of which [is] essential to the continuation of a democratic, functioning society in which the basic dignity of all is recognized” (Richardson, at para. 57). The fundamental principle that courts should provide meaningful remedies for the violation of constitutional rights (Doucet‑Boudreau, at para. 25) shapes the form and breadth of the declaration, acts as a strong counterweight against suspending the effect of such a declaration, and weighs in favour of granting an individual remedy in tandem with a suspension.
[155] It is a defining feature of our society, reflected in s. 52(1) and required by the rule of law, that state laws and state action must comply with the Constitution (SWUAV, at para. 31; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC), [1992] 1 S.C.R. 236, at p. 250; Secession Reference, at para. 72). That the public has an interest in the constitutional compliance of the laws that govern it can be seen throughout this Court’s remedial decisions. Courts ensure that a remedy covers the full scope of Charter violations; while this plays an important rights‑protecting function, it also serves the public interest, ensuring that the government acts in accordance with the law — “[c]ompliance with Charter standards is a foundational principle of good governance” (Ward, at para. 38). The importance of constitutional compliance weighs against suspension of the declaration, and in favour of an individual exemption from any suspension.
[156] Another aspect of the rule of law, reflected in s. 52(1)’s caution that laws are of no force or effect only “to the extent of the inconsistency” with the Constitution, is the entitlement to a positive order of laws that organizes society and protects it from harm. The public has an interest in preserving legislation duly enacted by its democratically elected legislatures, to the extent it is not unconstitutional. This is why courts will tailor remedies to retain constitutional aspects of an unconstitutional law where possible and will temporarily suspend the effect of a declaration when an immediate order would undermine the public interest by depriving the public of laws passed for its benefit. In contrast, concerns about legal instability may weigh against suspension.
[157] Finally, running through this Court’s remedial practice for unconstitutional legislation is respect for the role of the legislature coupled with an understanding of the duties of the judicial role. When determining the form and breadth of remedies, courts will preserve as much of the law as possible to respect the legislature’s policy choices, following its discernible intention when doing so. But courts will not shrink from performing their duty to protect rights through s. 52(1) remedies, determining the full extent of inconsistencies with the Constitution and declaring legislation to be of no force or effect when necessary. Suspensions can be granted when the legislature’s democratic role as policymaker would be so seriously undermined by an immediately effective declaration that it outweighs important countervailing principles. In such circumstances, if an exemption would undermine that role, it will weigh against an individual remedy.
[158] As I have explained, these constitutional considerations, drawn from our constitutional text and the broader architecture of our constitutional order and the rule of law, have repeatedly arisen in this Court’s decisions on s. 52(1) remedies for Charter violations and give rise to four foundational principles:A. Charter rights should be safeguarded through effective remedies.
B. The public has an interest in the constitutional compliance of legislation.
C. The public is entitled to the benefit of legislation.
D. Courts and legislatures play different institutional roles. [159] In my view, these remedial principles provide the groundwork for meaningful remedies in different contexts. They provide guidance to courts and encourage them to transparently explain remedial results. They will not always lead to agreement on the correct outcome; their value is in transparency, helping those who disagree articulate their specific points of disagreement. . Ontario (Attorney General) v. G. [three decades of Schachter reviewed]
In Ontario (Attorney General) v. G. (SCC, 2020) the Supreme Court of Canada critically reviews Schachter v Canada (SCC, 1992) and three decades of subsequent doctrinal developments, here as a prelude to updating Charter s.52(1) remedy law [which starts at para 108, not extracted here]:[81] In recent years, academic commentators have urged that remedies for unconstitutional laws be determined in a more principled, coherent, and transparent way. In particular, our jurisprudence dealing with suspensions of declarations of invalidity, and the exemption of individuals from those suspensions, has been criticized for unduly compromising the protection of rights by failing to grant meaningful remedies (see, e.g., R. Leckey, “The harms of remedial discretion” (2016), 14 I CON 584, at pp. 591‑93), and for diminishing the quality of decision making by failing to transparently explain the basis for a suspension (see, e.g., G. R. Hoole, “Proportionality as a Remedial Principle: A Framework for Suspended Declarations of Invalidity in Canadian Constitutional Law” (2011), 49 Alta. L. Rev. 107, at pp. 118 and 123). I would accept the Asper Centre’s invitation to articulate a principled approach to remedies for legislation that violates the Charter.
[82] As I shall explain, this Court’s leading decision on remedies for laws that violate the Charter, Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, has provided helpful guidance on how to craft a responsive and effective remedy for unconstitutional laws for nearly three decades. But, in some respects, this Court’s remedial jurisprudence has moved beyond Schachter. By employing and building on Schachter’s guidance in determining the form and breadth of declarations of invalidity, suspending the effect of those declarations, and exempting individuals from suspensions, this Court’s remedial practice has come to coalesce around a group of core remedial principles. Recognizing those remedial principles and explicitly identifying approaches that strike the right balance between them will encourage greater consistency and transparency in remedial decision making.
[83] As I will explain, I conclude that suspensions of declarations of invalidity should be rare, granted only when an identifiable public interest, grounded in the Constitution, is endangered by an immediate declaration to such an extent that it outweighs the harmful impacts of delaying the declaration’s effect. And when declarations are suspended, granting individual exemptions pursuant to s. 24(1) of the Charter will often balance the interests of the litigant, the broader public, and the legislature in a manner that is “appropriate and just”.
(1) Principled Remedial Discretion
[84] Section 52(1) of the Constitution Act, 1982, reads: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.
[85] Section 52(1) of the Constitution Act, 1982, provides in absolute terms that laws inconsistent with the Constitution are of no force or effect to the extent of the inconsistency. Although it states the legal result where there is conflict between a law and the Constitution, s. 52(1) does not explicitly provide courts with a grant of remedial jurisdiction.[2] A general declaration pursuant to courts’ statutory or inherent jurisdiction is the means by which they give full effect to the broad terms of s. 52(1).
[86] That a law is “of no force or effect” only “to the extent of the inconsistency” with the Constitution means that a court faced with a constitutional challenge to a law must determine to what extent it is unconstitutional and declare it to be so. Our jurisprudence teaches us that a measure of discretion is inevitable in determining how to respond to an inconsistency between legislation and the Constitution.
[87] There is a theory, consonant with the Blackstonian declaratory theory of the law, that “judges never make law, but merely discover it” (Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, at para. 79). On this view, when a law is unconstitutional, courts and other decision‑makers have no remedial discretion — s. 52(1) renders unconstitutional laws of no force or effect from the moment of their enactment (see, e.g., Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 28).
[88] However, while s. 52(1) is the substantive basis of constitutional invalidity, the public and the state will often disagree about whether a given law is unconstitutional and, if so, to what extent. Our legal order, grounded in related principles of constitutional supremacy and the rule of law, requires that there be an institution empowered to finally determine a law’s constitutionality; s. 52(1) confirms “[t]he existence of an impartial and authoritative judicial arbiter” to determine whether the law is of no force and effect (Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, at para. 89). Even in the absence of a formal declaration, s. 52(1) operates to prevent the application of unconstitutional laws. For example, because of the limits of its statutory jurisdiction, a tribunal or a provincial court’s determination that legislation is unconstitutional has no legal effect beyond the decision itself; nevertheless, it must refuse to give effect to legislation it considers unconstitutional (see, e.g., Martin, at para. 31; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 15). Thus, the reach of a judicial determination of the unconstitutionality of a law will be limited in the absence of statutory or inherent jurisdiction to issue a general declaration of invalidity.
[89] As I will explain, while s. 52(1) recognizes the primacy of the Constitution, including the fundamental rights and freedoms of individuals and groups guaranteed by the Charter, fashioning constitutional remedies inevitably implicates other — at times, competing — constitutional principles (K. Roach, “Principled Remedial Discretion Under the Charter” (2004), 25 S.C.L.R. (2d) 101, at pp. 112‑13). Courts must strike an appropriate balance between these principles in determining how to give effect to s. 52(1) in a manner that best aligns with our broader constitutional order.
[90] Kent Roach argues, and the intervener the Asper Centre submits, that Charter remedies should be granted in accordance with “principled discretion”: a middle ground between “strong” or “pure” discretion, which would give judges free rein to fashion remedies as they see fit, and “rule‑based” discretion, which would tightly constrain judges with hard‑and‑fast rules (Roach (2004), at pp. 102 and 107‑13). I agree.
[91] Pure discretion has the benefit of being endlessly adaptable to any factual context, but has the clear downside of permitting results based on “the wills and whims of a person or a group of people” (Roach (2004), at p. 107, quoting P. Birks, “Three Kinds of Objections to Discretionary Remedialism” (2000), 20 Uwa. L. Rev. 1, at p. 15). It also fails to encourage transparent reasoning — if the decision‑maker can do anything, there is less incentive to explain the basis for the decision. Rule‑based discretion, by contrast, has the benefit of being applicable in different contexts in a predictable way. However, it does not encourage courts to engage with the purposes behind the rules and tends to lead to mechanical application of those rules, which can produce unfair results in individual cases (Roach (2004), at pp. 109‑10 and 140).
[92] A review of this Court’s jurisprudence shows that it favours principled discretion, which requires judges to consider multiple, competing remedial principles and resolve conflicts between them while justifying their prioritization of certain considerations over others.
[93] “Remedial principles”, in this sense, are more general than rules and, unlike rules, may conflict and be weighed differently (Roach (2004), at pp. 111‑13, citing R. Dworkin, Taking Rights Seriously (1977)). Articulating the core general principles that structure the exercise of principled remedial discretion will assist in promoting principled, transparent, and consistent approaches to s. 52(1) remedies.
[94] Schachter provided remedial principles of this kind, identifying twin principles of respect for the purposes of the Charter and respect for the legislature, and thereby guiding the discretion of Canadian courts for nearly three decades. But in the process of applying that approach, this Court has sometimes articulated additional relevant or analogous principles. As I will explain, when legislation violates the Charter, courts have been guided by the following fundamental remedial principles, grounded in the Constitution, in determining the appropriate remedy, applying them at every stage:A. Charter rights should be safeguarded through effective remedies.
B. The public has an interest in the constitutional compliance of legislation.
C. The public is entitled to the benefit of legislation.
D. Courts and legislatures play different institutional roles. [95] Safeguarding rights lies at the core of granting Charter remedies because the Charter exists to protect rights, freedoms, and inherent dignity; this purpose inheres in the Charter as a whole (see Vriend, at para. 153; Canadian Egg Marketing Agency v. Richardson, 1997 CanLII 17020 (SCC), [1998] 3 S.C.R. 157, at para. 57). The Court’s purposive approach to constitutional remedies ensures that the effective vindication and protection of rights is at the core of the remedies it grants for legislation that violates the Charter (Osborne v. Canada (Treasury Board), 1991 CanLII 60 (SCC), [1991] 2 S.C.R. 69, at p. 104).
[96] The rule of law is explicitly recognized in the preamble to the Charter, which says that “Canada is founded upon principles that recognize . . . the rule of law”. It is also implicitly recognized in the preamble to the Constitution Act, 1867, which says Canada has “a Constitution similar in Principle to that of the United Kingdom” (see Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, at p. 750). Two facets of the rule of law are foundational here: the government must act within the law and there must be positive laws to preserve order in society. This Court has recognized that adherence to the principle of the rule of law means that the impact of legislation, even unconstitutional legislation, extends beyond those whose rights are violated — it is bad for all of society for unconstitutional legislation to “remain on the books” (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 51; see also Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524 (SWUAV), at para. 31). But the public interest cuts both ways — the public is also entitled to the benefit of legislation, which individuals rely upon to organize their lives and protect them from harm (Manitoba Language Rights, at pp. 748‑49 and 757). Laws validly enacted by democratically elected legislatures “are generally passed for the common good” and there is accordingly a “public interest” in legislation that “weighs heavily in the balance” of remedial discretion (Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, at p. 135; see also Harper v. Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764, at para. 9).
[97] Legislation is enacted by the legislature, which is sovereign in the sense that, within its constitutional ambit, it has “exclusive authority to enact, amend, and repeal any law as it sees fit” (Reference re pan-Canadian securities regulation, 2018 SCC 48, [2018] 3 S.C.R. 189, at para. 54 (emphasis in original); Constitution Act, 1867, ss. 91 to 95; Constitution Act, 1982, ss. 44 and 45). This fact serves as an important constraint on courts’ exercise of their remedial authority. Parliamentary sovereignty is an expression of democracy, because it accords exclusive legislative authority to Parliament and the provincial legislatures, each of which includes an elected chamber without whose consent no law can be made (Constitution Act, 1867, ss. 17, 40, 48, 55 and 91; Charter, ss. 3 and 4; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at paras. 62‑65).
[98] Even so, the courts remain “guardians of the Constitution and of individuals’ rights under it” (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 169) — “[d]eference ends . . . where the constitutional rights that the courts are charged with protecting begin” (Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 36). This is because “[i]t is emphatically the province and duty of [the courts] to say what the law is” (Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), at p. 177).
[99] These remedial principles — fundamental aspects of our constitutional order, including democracy and the rule of law — are reflected in the Court’s remedial decisions since the Charter came into force.
(2) Schachter
[100] In Schachter, this Court set out a general approach to granting remedies for legislation that violates the Charter. Schachter endorsed remedies tailored to the breadth of rights violations, thereby allowing constitutionally compliant aspects of unconstitutional legislation to be preserved. Schachter also recognized that, in rare circumstances, the effect of a declaration of invalidity could be suspended for a period of time to protect the public interest.
[101] At the core of Schachter was its recognition that flexibility is necessary to arrive at appropriate remedies involving legislation, and its endorsement of remedies short of a full declaration of invalidity. Lamer C.J. made clear that “[d]epending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in” (p. 695).
[102] Different types of remedy can be granted because the circumstances may implicate general remedial principles in different ways. Schachter recognized the “twin guiding principles” of “respect for the role of the legislature and the purposes of the Charter” (p. 715) that play a key role in determining the type of remedy that would be ordered.
[103] Schachter held that the first step in choosing the appropriate remedy is defining the extent of the inconsistency between the legislation and the Charter. The second step is determining the form of the declaration. Beyond the extent of the inconsistency, Schachter said that the form of a remedy would be influenced by courts’ respect for the role of the legislature. The general rule is that tailored remedies should only be granted when a court can fairly conclude that the legislature would have enacted the law as it would be modified by the court (pp. 697 and 700).
[104] Schachter also endorsed the use of suspended declarations — declarations that legislation is unconstitutional, but whose effect is suspended for some period of time. Lamer C.J. reasoned that a delayed order could be justified based on the effect of an immediate declaration on the public and that, by contrast, the roles of courts and legislatures should not enter into the question of whether to suspend a declaration (p. 717).
[105] Finally, Schachter considered how s. 52(1) remedies could be combined with individual remedies for Charter violations. Lamer C.J. concluded that individual remedies under s. 24(1) of the Charter “will rarely be available in conjunction with” remedies involving legislation (p. 720).
[106] Much of Schachter remains good guidance three decades later. However, as I will explain, the jurisprudence on Charter remedies has built upon the foundation of Schachter and moved beyond it in some ways. While Schachter wisely advised courts to consider the principled basis for their remedial decisions, those remedial principles have since been further developed. In part, the guidelines Schachter endorsed for determining the extent of rights violations were tied to an articulation of the Oakes test that has since been overtaken. Aspects of its discussion of suspended declarations have been overlooked by courts and criticized in academic commentary for their failure to rely on coherent principles and encourage transparent application. Finally, its admonition against combining s. 52(1) and individual remedies has frequently not been followed.
[107] Since Schachter, this Court has granted at least 60 s. 52(1) remedies for Charter breaches. In my view, the guidelines given in Schachter should be clarified and updated in light of those decisions.
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