The Enforcement of the Canadian Charter of Rights and Freedoms: An Analysis of Section 24 21 Alberta Law Review 1983

21 Alta. L. Rev. 205 (1983)
The Enforcement of the Canadian Charter of Rights and Freedoms: An Analysis of Section 24

handle is hein.journals/alblr21 and id is 219 raw text is: ENFORCEMENT OF THE CHARTER

THE ENFORCEMENT OF THE CANADIAN CHARTER
OF RIGHTS AND FREEDOMS: AN ANALYSIS OF SECTION 24*
A. ANNE McLELLAN AND
BRUCE P. ELMAN**
I. INTRODUCTION
Grand-sounding and often abstract principles declaring the existence of
fundamental human freedoms are meaningless absent effective means for
their enforcement. In discussing his third element of the rule of law,1
Dicey points out the absolute necessity of providing adequate remedies to
secure the right to individual liberty. He states:2
... the question whether the right to personal freedom ... is likely to be secure depends a good
deal upon the answer to the inquiry whether the persons who consciously or unconsciously build
up the constitution of their country begin with definitions or declarations of rights, or with the
contrivance of remedies by which rights may be enforced or secured. Now, most foreign constitu-
tion-makers have begun with declarations of rights.. . . But any knowledge of history suffices to
show that foreign constitutionalists have, while occupied in defining rights, given insufficient
attention to the absolute necessity for the provision of adequate remedies by which the rights
they proclaimed might be enforced.
H.W. Jones in an article on The Rule of Law and the Welfare State has
restated Dicey's third element of the rule of law as follows:3
... effective judicial remedies are more important than abstract constitutional declarations in
securing the rights of the individual against encroachment by the state.
Section 24 of the Canadian Charter of Rights and Freedoms provides
the means whereby anyone who has suffered an alleged violation of his or
her rights may apply to a court of competent jurisdiction for a remedy.
Section 24 states:4
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as the court
considers appropriate and just in the circumstances.
(2) Where in proceedings under subsection (1), a court concludes that evidence was obtained in a
manner that infringed or denied any rights or freedoms guaranteed by this Charter, the
evidence shall be excluded if it is established that, having regard to all the circumstances, the
admission of it in the proceedings would bring the administration of justice into disrepute.
* This article was originally prepared for presentation at a series of seminars on the
Charter of Rights and Freedoms held in December, 1982, and sponsored by the Friends
of the Faculty of Law of the University of Alberta. The authors would like to thank
Professor Paul Bender of the University of Pennsylvania and Professor Gerald L. Gall
of the University of Alberta for their extensive comments on an earlier draft of this
paper.
** Both authors are of the Faculty of Law, University of Alberta.
1. Dicey, Introduction to the Study of the Law of the Constitution, (10th ed., by E.C.S.
Wade). Dicey's third element of the rule of law states: the law of the constitution is
not the source but the consequence of the rights of individuals as defined and enforced
by the courts (at 203).
2. Id., at 198.
3. Jones, The Rule of Law and the Welfare State (1958) 58 Colum. L. Rev. 143 at 150.
4. Constitution Act, 1982.

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