Non-destructive Charter Responses to Legislative Inequalities


  • Dale Gibson



S. 24 of the Charter bestows wide remedial discretion on the courts in the adjudication of Charter claims. Professor Gibson argues that this discretion must not be employed in a manner destructive of existing rights because s. 26 requires the preservation of such rights. He explains how non-destructive methods of Charter enforcement fall into two categories: interpretative and remedial. Non-destructive remedies would include mechanisms such as: selective striking out, utilizing s. 52(1), the imposing of a trust condition on a statutory beneficiary, reducing disruptive judicial intervention into the legislative domain through a positive 'reading in' of sufficient context to allow compliance with the Charter, the temporary application of s. 1 to justify a Charter violation until there is a reasonable opportunity to remedy the defect, conceivably the use of an order for the amendment of legislation violating the Charter, and finally, the employment of declaratory judgments to exert political pressure on the government to bring its legislation into compliance with the Charter.