David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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The Supreme Court of Canada decided a number of cases in 2003 that confirmed the importance of remedial discretion under the Charter. The most well-known and controversial was Doucet-Boudreau v. Nova Scotia (Minister of Education). In that case, the Court upheld the discretion of a trial judge under section 24(1) of the Canadian Charter of Rights and Freedoms to order that the government make best efforts to provide French language schools by certain times in various parts of Nova Scotia, and require the government to report back to the trial judge on its compliance with the order. The Court, however, was closely and firmly divided with four judges arguing in dissent that the trial judge had abused his discretion by violating the separation of powers; by acting after his jurisdiction had been exhausted; and by issuing a vague remedial order. Doucet-Boudreau may encourage trial judges to exercise supervisory jurisdiction in Charter cases and to order Charter remedies that are more specific than the general declarations that have generally been used in the past. But much will depend on how trial judges exercise this discretion in the future. The remedial cases decided by the Court this year provide a good vehicle for discussing the importance of remedial discretion under the Charter and the variety of approaches that can be taken to conceptualizing and governing the exercise of remedial discretion. In the first part of this paper, I will address the issue of remedial discretion at a general and conceptual level. I will argue that the remedial discretion of trial judges is a fundamental feature of the Charter and one that distinguishes it from the Canadian Bill of Rights. I will then outline three different types of discretion that can be exercised by trial judges. The first is strong discretion, in the sense that it is or appears not to be governed either by rules or principles, especially those that are articulated and applied by appellate courts. A second kind of discretion is in part a reaction to the unconstrained freedom of pure discretion. It is a regime of ruled-based discretion in which the remedial discretion of trial judges is cabined by rules or pigeon holes enumerated by the appellate courts. A third form of discretion is principled remedial discretion which is not under-governed by law in the way of pure discretion or over-governed by self-executing categories and rules. Principled remedial discretion involves a judge applying general principles, such as the need for effective remedies and respect for institutional role, to the context of a particular violation. In the remaining parts of the paper, I will examine recent remedial decisions of the Supreme Court with the above categories in mind. My analysis of each case will attempt to recognize the range of debate about how the exercise of remedial discretion fits into the three categories of strong, rule-based, and principled discretion. At the same time, I will suggest some techniques that the courts might use to improve and sharpen their remedial decisions.
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