DAMAGES AS A REMEDY FOR INFRINGEMENT OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

  • MARILYN L PILKINGTON
Keywords: Constitutional Law

Abstract

Section 24(1) of the Canadian Charter of Rights and Freedoms confers on the courts the power to award to anyone whose rights or freedoms under the Charter have been infringed "such remedy as the court considers appropriate and just in the circumstances". This article discusses the issues with which the courts will have to deal if they are asked to award damages for infringement of constitutional rights. It considers, inter alias the purposes which the award of damages may serve; the elements of a constitutional damage claim; the defendants against whom such a claim may be made; and the appropriate measure of damages. In exercising this jurisdiction Canadian courts will no doubt find it useful to refer to the common law of damages and to the experience in the United States in the awarding of damages in constitutional cases. However the author concludes that the courts should not be constrained by common law principles and that the Charter confers on them a much broader jurisdiction than that of the United States courts. Canadian courts should therefore fashion a remedy in damages which will effectively redress contraventions of the rights and freedoms guaranteed by the Charter.

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Published
1984-12-01
Section
Legal Commentary