Constitutional Remedies as "Constitutional Hints": A Comment on R. V. Schachter

Abstract

Recent Canadian Charter of Rights and Freedoms cases including R. v. Schachter, A.G. Nova Scotia v. Phillips, R. v. Hebb and R. v. Morgentaler in which courts have made controversial remedial choices are examined. The authors argue that the choice of whether to extend or nullify an unconstitutionally underinclusive statute cannot be deduced either from the conclusion that the statute is underinclusive or from constitutional provisions such as sections 24(1) and 26 of the Charter and 52(1) of the Constitution Act, 1982. In difficult remedial cases, courts must exercise remedial discretion. Three current approaches include: courts always striking out underinclusive legislation, courts ordering the remedy the legislature would have wanted and courts ordering the least disruptive remedy. The authors reject the first approach because it erroneously dictates invalidation as the only remedial choice when that conclusion cannot be defended on textual, functional or procedural grounds. They reject the latter two approaches because they force courts to speculate on matters best left to legislatures. The authors suggest that any satisfactory approach to the exercise of remedial discretion should attempt to avoid regressive outcomes and not to supplant the political process. One such approach, they argue, is to have courts look to the values and purposes that they see in the Constitution for "hints" about how to exercise remedial discretion. Parts of the Constitution that protect the disadvantaged, such as s.15 of the Charter, are important sources for progressive "constitutional hints." The "constitutional hints" approach allows the courts to defend one remedial choice over another as preferred, but not necessarily required, by their interpretation of the Constitution. In turn, legislatures may opt not to "take the hint" and move to amend the court's remedy.