Charter Remedies — Section 24 of the Canadian Charter of Rights and Freedoms

1. Introduction

Section 24 of the Canadian Charter of Rights and Freedoms is the principal remedial provision allowing individuals whose Charter rights have been infringed to obtain a remedy from a court.

It is therefore a crucial component of Canadian constitutional law.

Section 24 has two distinct parts:

Section 24(1) — provides a broad remedial power where a person's Charter rights or freedoms have been infringed or denied.

Section 24(2) — permits exclusion of evidence obtained in a manner that infringed or denied Charter rights where admitting the evidence would bring the administration of justice into disrepute.

The provision is particularly important because a constitutional right without an effective remedy may be practically meaningless.

The Supreme Court of Canada has repeatedly emphasised that Charter remedies should be designed to vindicate the right, deter future violations, and provide meaningful relief, while respecting the institutional role of courts and other branches of government.

2. Constitutional Text

Section 24 provides, in substance:

Section 24(1)

Anyone whose rights or freedoms guaranteed by the Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain a remedy that the court considers appropriate and just in the circumstances.

Section 24(2)

Where a court concludes that evidence was obtained in a manner that infringed or denied Charter rights, the evidence must be excluded if, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

The two subsections perform very different functions.

3. Purpose of Section 24

Section 24 serves several constitutional purposes.

1. Vindication

The remedy recognises that a constitutional right has been violated.

2. Deterrence

A remedy may discourage governments and state actors from repeating unconstitutional conduct.

3. Compensation

In appropriate circumstances, monetary compensation may be awarded.

4. Restoration

The court may attempt to restore the claimant to the position that should have existed had the Charter violation not occurred.

5. Protection of judicial integrity

Section 24(2) protects the integrity of the justice system by preventing courts from relying upon improperly obtained evidence in circumstances where doing so would damage public confidence in the administration of justice.

4. Section 24(1): General Charter Remedies

Section 24(1) is deliberately broad.

The phrase:

"such remedy as the court considers appropriate and just in the circumstances"

gives courts substantial remedial discretion.

The remedy is not limited to traditional common-law damages.

Depending upon the circumstances, a court may grant:

declarations;

injunctions;

constitutional damages;

orders requiring governmental action;

stays of proceedings;

exclusionary or procedural remedies;

mandamus-type relief;

structural remedies;

supervisory orders;

other appropriate relief.

5. Who Can Apply?

Section 24(1) is available to a person whose Charter rights have been infringed or denied.

The applicant generally must establish:

that a Charter right or freedom applies;

that the applicant's right was infringed or denied;

that the respondent is subject to the Charter in the relevant circumstances;

that the requested remedy is appropriate and just.

Section 24(1) therefore operates after a Charter violation has been established.

6. Court of Competent Jurisdiction

The applicant must seek relief from a court of competent jurisdiction.

The concept ensures that the court granting the remedy has:

jurisdiction over the subject matter;

jurisdiction over the parties;

authority to grant the particular form of relief.

The remedial jurisdiction of courts is therefore not unlimited merely because section 24 uses broad language.

7. "Appropriate and Just in the Circumstances"

This is the central phrase in section 24(1).

It gives Canadian courts flexibility to formulate remedies appropriate to the particular violation.

The Supreme Court has rejected the idea that every Charter breach requires the same remedy.

For example:

a declaration may be sufficient in one case;

damages may be appropriate in another;

an injunction may be necessary in another;

a mandatory order may be justified where governmental inaction has caused the violation.

8. Section 24(1) and Section 52(1)

One of the most important distinctions in Canadian constitutional remedies is between section 24(1) and section 52(1) of the Constitution Act, 1982.

Section 24(1)

Provides personal remedies to persons whose Charter rights have been infringed.

Section 52(1)

Provides a constitutional remedy against laws that are inconsistent with the Constitution.

Section 52(1) establishes constitutional supremacy:

Any law inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect.

Therefore:

Section 24(1) = personal remedy

Section 52(1) = constitutional invalidity/remedy against unconstitutional laws

The two provisions may sometimes operate together.

9. Why the Distinction Matters

Suppose legislation violates freedom of expression.

A court may conclude that:

the legislation is unconstitutional under section 52(1); and

the particular claimant is entitled to an individual remedy under section 24(1).

However, the two provisions have different constitutional functions.

Section 24 is primarily concerned with remedying violations suffered by individuals.

Section 52 is concerned with the constitutional status of laws.

10. Types of Section 24(1) Remedies

A. Declaration

A court may formally declare that a government action violated the Charter.

This may be appropriate where the violation is established but no further coercive relief is necessary.

B. Injunction

An injunction may prohibit the government or another state actor from continuing unconstitutional conduct.

For example, an injunction might prevent continued enforcement of a policy that violates a protected Charter right.

C. Mandatory Order

A court may require a government institution to take particular action where necessary to remedy a Charter violation.

This is especially important in cases involving:

minority-language rights;

access to public services;

detention conditions;

discriminatory government practices.

D. Constitutional Damages

Section 24(1) can support an award of damages in appropriate circumstances.

The Supreme Court has recognised that constitutional damages may serve several functions:

compensation;

vindication;

deterrence.

The leading authority is Vancouver (City) v Ward.

E. Stay of Proceedings

In appropriate circumstances, a serious Charter violation may justify staying criminal proceedings.

A stay is an exceptional remedy because it terminates the prosecution without determining guilt or innocence.

Courts therefore require particularly serious circumstances before granting one.

F. Structural or Supervisory Remedies

In exceptional cases, courts may impose remedies requiring continuing governmental compliance.

These remedies can involve:

reporting requirements;

deadlines;

supervisory jurisdiction;

institutional reforms.

They are particularly relevant where a systemic constitutional violation cannot be adequately remedied through an individual declaration.

11. Section 24(2): Exclusion of Evidence

Section 24(2) is fundamentally different from section 24(1).

It concerns evidence obtained through a Charter violation.

The basic sequence is:

A Charter right is violated.

Evidence is obtained as a consequence.

The accused applies for exclusion.

The court asks whether admitting the evidence would bring the administration of justice into disrepute.

If so, the evidence must be excluded.

12. Purpose of Section 24(2)

Section 24(2) is not simply designed to punish police officers.

Its principal concern is the administration of justice as a whole.

The court considers whether admitting the evidence would undermine public confidence in the justice system.

The Supreme Court has developed a structured approach to this question.

13. R v Collins — Foundational Section 24(2) Authority

R v Collins, [1987] 1 SCR 265

This was one of the first major Supreme Court decisions interpreting section 24(2).

The Court developed an early framework focusing upon factors such as:

seriousness of the Charter violation;

effect of admitting the evidence;

seriousness of the offence.

Importance

Collins established the foundational principle that evidence exclusion is not automatic merely because a Charter violation occurred.

There must be an assessment of whether admission would bring the administration of justice into disrepute.

14. R v Stillman

R v Stillman, [1997] 1 SCR 607

The Supreme Court addressed evidence obtained through violations of an accused's rights, particularly concerning compelled evidence.

The Court developed a sophisticated framework concerning:

conscriptive evidence;

derivative evidence;

the relationship between Charter violations and evidentiary use.

Importance

Stillman became a major authority on the operation of section 24(2), although its analytical framework was subsequently modified by later jurisprudence.

15. R v Grant — Modern Section 24(2) Test

R v Grant, 2009 SCC 32

This is one of the most important modern authorities.

The Supreme Court reformulated the section 24(2) analysis.

The Court identified three major considerations:

1. Seriousness of the Charter-infringing state conduct

The court asks how serious the police or governmental misconduct was.

2. Impact of the breach on the accused's Charter-protected interests

The court examines how seriously the violation affected the individual's rights.

3. Society's interest in adjudication on the merits

The court considers the importance of deciding the case based upon reliable evidence.

The overall question remains whether admission would bring the administration of justice into disrepute.

16. Example Under Grant

Imagine police conduct an unconstitutional search.

The search:

seriously violates privacy;

is undertaken deliberately;

produces highly reliable evidence.

Even though the evidence is reliable and relevant, the seriousness of the police misconduct may justify exclusion.

Conversely, a minor, technical Charter violation may not necessarily require exclusion.

17. R v Harrison

R v Harrison, 2009 SCC 34

This case was decided alongside the modern section 24(2) jurisprudence.

The Supreme Court applied the Grant framework to a serious Charter breach.

Importance

Harrison illustrates that:

Reliable evidence is not automatically admissible merely because it is important to the prosecution.

The court must consider the broader constitutional consequences of admitting it.

18. R v Shepherd

R v Shepherd, 2009 SCC 35

The Court examined police powers and the consequences of investigative conduct in the Charter context.

Importance

The decision reinforces the importance of carefully identifying:

the scope of police authority;

the nature of the Charter breach;

the connection between the breach and the evidence.

19. R v Paterson

R v Paterson, 2017 SCC 15

The Supreme Court considered the section 24(2) framework in relation to a warrantless search and police conduct.

The Court examined the seriousness of the Charter-infringing conduct and its consequences for the accused's interests.

Importance

Paterson demonstrates that courts must assess the circumstances of the violation rather than mechanically applying an exclusionary rule.

20. R v Le

R v Le, 2019 SCC 34

This case involved detention and the circumstances in which police interaction with individuals can amount to detention.

The Supreme Court also considered the consequences of the Charter violations under section 24(2).

Importance

The case demonstrates that social and contextual circumstances can matter when assessing:

detention;

police authority;

reasonable perception of compulsion;

Charter-protected interests.

21. Vancouver (City) v Ward — Constitutional Damages

Vancouver (City) v Ward, 2010 SCC 27

This is the leading Canadian authority concerning constitutional damages under section 24(1).

Facts

Mr. Ward was subjected to unconstitutional conduct by Vancouver police and brought a claim for damages.

Supreme Court's approach

The Court established a framework for determining when damages may be awarded as a Charter remedy.

The Court identified three general functions of constitutional damages:

compensation;

vindication;

deterrence.

Importance

Ward is fundamental because it confirmed that section 24(1) can provide a basis for monetary constitutional remedies.

22. The Ward Test

The analysis can broadly be understood as follows.

Step 1 — Establish the Charter breach

The claimant must establish that a Charter right was infringed.

Step 2 — Determine whether damages would serve a function

The court considers whether damages would:

compensate;

vindicate;

deter.

Step 3 — Consider countervailing factors

Damages may not be appropriate where alternative remedies or governmental considerations make them inappropriate.

Step 4 — Determine quantum

If damages are appropriate, the court assesses an amount proportionate to the constitutional injury and remedial objectives.

23. Doucet-Boudreau v Nova Scotia

Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62

This is a major authority concerning structural and supervisory remedies.

Facts

The case concerned minority-language education rights under section 23 of the Charter.

The Court considered whether a trial judge could retain jurisdiction to supervise compliance with the constitutional remedy.

Decision

The Supreme Court upheld a remedial order involving continuing judicial supervision.

Importance

The case establishes that courts are not necessarily limited to one-time declarations.

Where necessary, they may fashion innovative remedies to ensure effective constitutional compliance.

24. Schachter v Canada

Schachter v Canada, [1992] 2 SCR 679

The Supreme Court considered remedies for unconstitutional legislation.

The Court discussed:

striking down legislation;

severance;

reading down;

reading in;

suspended declarations of invalidity.

Importance

Schachter is especially important for understanding the relationship between section 24 remedies and section 52 remedies.

It demonstrates that constitutional remedies must be carefully tailored to the nature of the defect.

25. R v 974649 Ontario Inc

R v 974649 Ontario Inc, 2001 SCC 81

The Supreme Court addressed the relationship between section 24(2) and evidence obtained through Charter violations.

Importance

The case demonstrates that section 24(2) requires courts to consider the constitutional significance of admitting evidence rather than treating exclusion as a mechanical consequence.

26. R v Ferguson

R v Ferguson, 2008 SCC 6

The case concerned mandatory minimum sentencing and constitutional remedies.

Principle

The Supreme Court discussed the limits of judicial remedies and the circumstances in which courts should use remedies such as reading down.

Importance

Ferguson demonstrates the importance of distinguishing:

individual constitutional remedies;

remedies affecting legislation generally.

27. R v 974649 Ontario Inc and the Evidentiary Remedy

Section 24(2) is not a punishment for the police.

Its focus is the long-term integrity of the administration of justice.

Thus, the court must consider:

Would admitting this evidence undermine public confidence in the justice system?

This is why even reliable evidence can sometimes be excluded.

28. Section 24(1) vs Section 24(2)

29. Section 24(1) and Constitutional Damages

Constitutional damages deserve particular attention.

A claimant does not automatically receive damages whenever a Charter breach is established.

The court must ask:

What injury occurred?

Is compensation required?

Would damages vindicate the right?

Would damages deter future violations?

Is there another adequate remedy?

Would damages be inappropriate because of governmental considerations?

30. Compensation vs Vindication vs Deterrence

Compensation

Compensates the claimant for actual constitutional harm.

Vindication

Recognises the importance of the constitutional right independently of financial loss.

Deterrence

Encourages state actors to respect Charter rights in the future.

A damages award may serve one, two or all three functions.

31. Declaratory Relief

A declaration may state that:

The governmental action was inconsistent with the claimant's Charter rights.

A declaration can be powerful even where no financial compensation is awarded.

It can:

clarify constitutional obligations;

invalidate a particular decision;

guide future government conduct;

formally vindicate the claimant's rights.

32. Injunctive Relief

An injunction may be appropriate where the Charter violation is:

continuing;

threatened;

repetitive.

For example, where a government body repeatedly applies an unconstitutional policy, a court may restrain the continued conduct.

33. Mandatory Remedies

Sometimes merely prohibiting unconstitutional conduct is inadequate.

A court may instead require positive governmental action.

Examples include:

providing constitutionally required services;

correcting discriminatory procedures;

implementing legally required accommodation;

establishing compliant systems.

Doucet-Boudreau demonstrates that constitutional remedies can be innovative where necessary.

34. Stays of Proceedings

A stay of criminal proceedings is among the most powerful remedies available under section 24(1).

However, courts generally treat it as exceptional.

A stay may be considered where:

the Charter breach is extremely serious;

continuing the prosecution would abuse the court's process;

no lesser remedy would adequately protect the Charter;

the integrity of the justice system requires termination.

The remedy must not be granted merely because some constitutional violation occurred.

35. Exclusion of Evidence

Section 24(2) applies only where there is:

a Charter breach;

evidence obtained in a manner that infringed or denied the Charter right;

a question concerning whether admission would bring the administration of justice into disrepute.

The court must therefore establish a causal or contextual connection between the Charter breach and the evidence.

36. Seriousness of State Misconduct

Under Grant, courts examine the seriousness of the state conduct.

Factors may include:

deliberate violations;

reckless disregard for Charter rights;

good-faith mistakes;

systemic problems;

urgency;

availability of lawful alternatives.

A deliberate constitutional violation is generally more serious than an inadvertent technical mistake.

37. Impact on the Accused

The court also examines the effect of the violation.

For example:

High impact

intrusive bodily search;

prolonged arbitrary detention;

serious privacy invasion;

compelled self-incrimination.

Lower impact

minor procedural irregularity;

limited interference;

technical violation with minimal practical impact.

The more seriously the accused's protected interests were affected, the stronger the case for exclusion may become.

38. Society's Interest in Adjudication on the Merits

The court also considers society's interest in having criminal cases decided using reliable evidence.

Factors include:

reliability of evidence;

importance of evidence to the prosecution;

seriousness of the offence.

However, serious criminal allegations do not automatically override Charter protections.

39. The Three-Part Grant Framework

A useful examination framework is:

Stage 1

How serious was the state misconduct?

Stage 2

How seriously did the breach affect the accused's protected interests?

Stage 3

What is society's interest in having the case decided on its merits?

The court then balances these considerations to determine whether admission would bring the administration of justice into disrepute.

40. Charter Remedies and Police Misconduct

Police conduct is a frequent context for section 24 litigation.

Examples include:

unlawful searches;

arbitrary detention;

unreasonable seizure;

denial of counsel;

compelled statements;

excessive investigative techniques;

warrant violations.

However, section 24 applies more broadly to government conduct generally.

41. Charter Remedies Against Administrative Bodies

Section 24 remedies can also become relevant where administrative decision-makers violate Charter rights.

Examples include:

discriminatory licensing decisions;

unconstitutional regulatory policies;

improper detention;

denial of procedural rights;

government service restrictions.

The availability of a remedy depends upon the nature of the Charter breach and the statutory framework.

42. Government Liability

The government may potentially be exposed to constitutional remedies where governmental actors violate Charter rights.

However, courts carefully distinguish:

ordinary negligence;

statutory liability;

constitutional liability;

individual misconduct;

institutional responsibility.

Ward is particularly important because it recognises constitutional damages as a distinct remedial possibility.

43. Limitation and Alternative Remedies

A court considering section 24 relief may examine whether another remedy is available.

Relevant considerations can include:

statutory remedies;

judicial review;

ordinary civil actions;

administrative appeals;

declaratory relief;

internal government procedures.

However, the existence of another remedy does not automatically eliminate section 24 jurisdiction.

The constitutional remedy must remain effective and appropriate.

44. Standing

A claimant generally must have a sufficient connection to the Charter violation.

The person seeking relief under section 24(1) must ordinarily demonstrate that their own Charter rights or freedoms have been infringed or denied.

This differs from certain forms of public-interest constitutional litigation where different standing rules may apply.

45. Section 24 Remedies and Minors

Charter remedies can be particularly important for:

detained young persons;

students;

children receiving government services;

vulnerable individuals.

Courts may take into account the claimant's circumstances when determining an appropriate remedy.

46. Section 24 and Equality Rights

Section 24 can provide remedies for violations of section 15 equality rights.

For example, if a government programme discriminates against a protected group, possible remedies may include:

declaration;

injunction;

mandatory corrective action;

damages in appropriate circumstances;

constitutional invalidity under section 52.

47. Section 24 and Freedom of Expression

Where government action improperly restricts expression under section 2(b), remedies can include:

declaration;

injunction;

invalidation of enforcement action;

damages;

other appropriate relief.

The appropriate remedy depends on whether the violation arises from:

legislation;

government policy;

administrative action;

police conduct.

48. Section 24 and Search and Seizure

Section 8 cases are among the most frequent section 24(2) applications.

An unreasonable search may result in evidence being excluded if the Grant factors support exclusion.

Examples include:

warrantless searches;

unlawful vehicle searches;

unreasonable home searches;

unlawful digital searches;

improper seizure of electronic information.

49. Section 24 and Section 10(b) — Right to Counsel

Where police breach the right to counsel, courts may consider:

whether the accused was properly informed of the right;

whether access to counsel was actually facilitated;

whether police interfered with consultation;

whether evidence was obtained following the breach.

Section 24(2) may then become relevant to evidence obtained through the violation.

50. Relationship Between Sections 24(1) and 24(2)

The two provisions should not be confused.

Section 24(1)

Answers:

What remedy should this person receive for the Charter violation?

Section 24(2)

Answers:

Should evidence obtained through the Charter violation be excluded because admitting it would bring the administration of justice into disrepute?

Thus, section 24 is both:

individual-remedial, and

system-protective.

51. Major Case Law Summary

52. Practical Problem Question

Suppose police stop A without lawful grounds.

They detain A, fail to properly facilitate access to counsel and search A's phone without sufficient legal authority.

The search reveals incriminating messages.

A brings a Charter application.

Step 1 — Identify the rights

Potential violations could include:

section 9 — arbitrary detention;

section 10(b) — right to counsel;

section 8 — unreasonable search and seizure.

Step 2 — Section 24(1)

A may seek an appropriate remedy for the violations.

Step 3 — Section 24(2)

A may seek exclusion of the messages.

Step 4 — Apply Grant

The court asks:

How serious was the police misconduct?

How seriously did the conduct affect A's Charter interests?

What is society's interest in adjudicating the case on its merits?

Step 5 — Result

If admission would bring the administration of justice into disrepute, the evidence should be excluded.

53. Key Principles from the Supreme Court

The jurisprudence establishes several important propositions.

First

A Charter right should generally have an effective remedy.

Second

Section 24(1) gives courts significant remedial flexibility.

Third

Damages are available in appropriate circumstances.

Fourth

Constitutional remedies must be tailored to the nature of the violation.

Fifth

Section 24(2) does not create an automatic exclusionary rule.

Sixth

Evidence exclusion focuses on the repute of the administration of justice.

Seventh

Serious state misconduct weighs strongly in favour of exclusion.

Eighth

The impact of the violation upon the claimant is independently important.

Ninth

Society's interest in adjudicating cases on their merits must also be considered.

Tenth

Courts may sometimes issue innovative and continuing remedies where ordinary remedies are inadequate.

54. Conclusion

Section 24 of the Canadian Charter of Rights and Freedoms is the principal constitutional remedial mechanism for individual Charter violations.

Its two subsections have distinct functions:

Section 24(1) provides an individual whose Charter rights have been infringed with whatever remedy a court considers appropriate and just in the circumstances.

Section 24(2) addresses evidence obtained through Charter violations and requires exclusion where admitting the evidence would bring the administration of justice into disrepute.

The leading authorities establish a comprehensive remedial framework:

R v Collins — foundational exclusion principles;

R v Stillman — conscriptive evidence;

Doucet-Boudreau v Nova Scotia — innovative and supervisory remedies;

R v Ferguson — constitutional remedial limits;

R v Grant — modern section 24(2) framework;

R v Harrison — application of Grant;

Vancouver (City) v Ward — constitutional damages;

R v Paterson — modern exclusion analysis;

R v Le — detention and contextual Charter analysis.

The most important conceptual distinction is between individual relief under section 24(1) and constitutional invalidity under section 52(1). Section 52 addresses laws that are inconsistent with the Constitution, whereas section 24 focuses on providing an effective remedy to the person whose Charter rights have been violated.

Ultimately, Canadian Charter remedies are based on the principle that constitutional rights must be practically enforceable. The courts therefore possess substantial—but not unlimited—authority to design remedies that vindicate rights, compensate constitutional injury, deter unconstitutional government conduct, and preserve public confidence in the administration of justice.