LES OBSTACLES CONSTITUTIONNELS A LA JURIDICTION DE LA COUR FEDERALE EN MATIERE DE RESPONSABILITE PUBLIQUE POUR VIOLATION DE LA CHARTE CANADIENNE
AbstractUntil now the Federal Court has generally taken for granted that it is a competent tribunal for the purposes of awarding against federal authorities appropriate and just remedies under section 24(1) of the Canadian Charter of Rights and Freedoms. In this article the author examines to what extent the jurisdiction of the Federal Court to award damages for violation of the Charter is limited by section 101 of the Constitution Act, 1867. The author emphasizes that section 24(1) of the Charter does not confer on the court any new jurisdiction and, as a result, the criteria for jurisdiction established by the Supreme Court of Canada in light of article 101 of the Constitution Act, 1867 still apply in the context of the implementation of the Charter. The Federal Court can therefore act only on the basis of extracontractual responsibility which finds its formal source in federal law. Having concluded that section 24(1) of the Charter gives rises to an obligation that is purely constitutional in origin, the author concludes that only the provincial courts have jurisdiction to deal with an action for monetary recompense founded on the Charter.
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