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Law 2101 (688)
Lecture

Canadian charter4

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Department
Law
Course
Law 2101
Professor
Mysty Sybil Clapton
Semester
Winter

Description
Enforcing the Charter: Rights and Remedies Lecture #4 October 10, 2013 Who uses the charter?  Persons charged with violating the law are free to contest the constitutionality of the law  But Charter litigation may also be brought by those opposed to legislation even if it does not affect them; someone who wants to challenge, usually not someone formally charged Groups seeking social reform  Political interest groups - LEAF - Civil liberties groups:ACLU - Gay rights groups Parties to a charter case  “Party” refers to the two sides of a case  Party bringing case (the plaintiff or applicant): person bringing the case  Party replying to case (the defendant or respondent) – the Government whose legislations or actions are impugned Charter Challenges Traditionally “standing” was required to bring suit: You had to be connected to the case in some way, directly affected Supreme Court relaxes standing requirements to allow more Charter challenges  Does case raise a justiciable issue  Does applicant have a real stake in proceedings or is engaged in the issues the case raises  Is proposed litigation reasonable and effective means of bringing case to court in the circumstances  Parties controls of litigation strategy  Time consuming  Expensive; The Plaintiff has to pay for everything with their own money  Legal costs and potential requirement to pay costs of winning party  Court may order state to pay costs in advance to allow litigation to be brought if party needs money (If they think it’s a legit case), case meritorious, and in public interest to allow case to be heard. Law could be declared invalid. Money will be given to support Intervening in Charter Litigation  Interveners (help represent party, participate in almost all of charter cases). Once case gets into court system, other groups may want to participate in the case now, not as a party, just want to make an argument, no evidence or witness, maybe some written work, can participate in litigation without being a party  Less expensive  Intervener does not control litigation strategy  Intervener may be make written and oral submissions to the Court at Court’s discretion Charter Remedies  Distinguish remedies for legislation (challenging act of federal government, devoid law; just want court to stop law) and actions that violate Charter (violating your rights) difference is usually money  Legislation may be invalidated in whole or part – of no force or effect to the extent of its inconsistency  Ex: The ManitobaAct  Legislation may be reinterpreted/revised  Section 24 remedies for state actions that violate the Charter Interpreting remedies- Schacter  Flow from section 52 of Constitution Act 1982  Court’s remedial options include: - Declaration of partial invalidity and severance: declare it as void, or just take out certain sections - Reading-down- laws are ok, you just have to interpret it properly - Reading-in- If they are too broad - Suspension of invalidity Partial Invalidity- severance  If whole statute is not inconsistent, sever the offending provision or provisions; take out one provision, sometimes if you take out one, it all collapses, depends on nature of the law)  Court eliminates the words that give rise to the Charter inconsistency, leaving the rest of the statute intact  Appropriate where severance is consistent with purpose of legislation, and has minimal fiscal consequences Reading- Down  Court may choose an interpretation of legislation that makes it consistent with the Charter  May be appropriate if legislation is overinclusive and can be interpreted narrowly  Avoids finding of Charter violation  Alaw that has vague terminiology; can interpret in many ways, if can pick more than one, Pick the one that doesn’t violate Reading-In  May be appropriate where legislation is underinclusive; ie, omits something that ought to be included in order to be consistent with Charter  Eg, benefit provisions that should apply to a greater class of persons given the equality right  Court “reads-in” words that extend the application of the legislation to make it consistent with the Charter  If you have a law that says men may receive insurance if laid off: doesn’t mention women, court may see it as containing both men and women. If you just h
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