Understanding charter remedies: A dialectical and contextual approach to charter ajudication and remediation.

摘要

Charter remedies, such as striking down legislation or redrafting it to conform to Charter standards, extending benefits or striking them down, reading down legislation or granting constitutional exemptions, staying proceedings or dismissing charges, excluding evidence, ordering damage awards or requiring funded counsel to be provided at state expense, present litigators and the courts with the most difficult challenges. There is considerable uncertainty about what is appropriate and just in a given case, and whether the courts are going too far in taking over the role of legislatures or not far enough in enforcing constitutional rights.;This thesis examines the legitimacy dilemma posed by Charter remedies: in a constitutional democracy, how far should courts go in enforcing entrenched human rights standards? It concludes that the adjudication of constitutional rights and freedoms involves a continual debate between courts and legislatures and citizens about the meaning of constitutional principles and the way to transform principles into practical reality.;Depending on the kind of constitutional obligation that a particular Charter right imposes on government actors, we find that different kinds of remedies will be most appropriate and just. There is a continuum of remedial intrusiveness that ranges from the most ordinary, case specific Charter remedy to the most elaborate, structural injunction applying to a whole field of activity. What remedy fits a particular violation depends on whether the Charter imposes on government (1) an obligation of non interference with individual rights, (2) an obligation of compliance with applicable constitutional standards, or (3) a positive duty to implement certain Charter rights.;This thesis explains that the Charter remedies question can thus be understood by having regard first, to the context of the particular Charter right and governmental obligation that is in issue, and second, to the ongoing institutional dialogue between courts, legislators and the people about how to make rights real.