Charter Damage Claims: New Dawn or Mirage
![handle is hein.journals/aqrty39 and id is 436 raw text is: CHARTER DAMAGE CLAIMS: NEW DAWN
OR MIRAGE?
Allen M Linden
1. Introduction
The right to claim civil redress for a violation of the Canadian
Charter ofHuman Rights and Freedoms has slumbered largely out of
sight since 1982, the birthdate of the Charter. Despite a superb book
on the subject, Charter Damages Claims, by Ken Cooper-
Stephenson' and a seminal article by Marilyn Pilkington in 1984,2
the alluring s. 24(1) bait did not entice many judges in Canada,
although, over the years, a few brave pioneers have nibbled at the
concept.3 True, both before and after 1982, civil actions in tort were
always potentially available to aggrieved individuals who were killed,
assaulted or imprisoned unconstitutionally, but not on the basis of a
Charter violation alone. Following 1982, precedent was amazingly
sparse, to use Chief Justice McLachlin s adjective. This reluctance
to embrace s. 24(l) was surprising because the United States had
statutorily granted individuals the right to sue state officials for
violation of their federal constitutional rights as early as 18714 and
this right is widely, even excessively, exercised south of the border.
Further, by common law decision, the U.S. Supreme Court in Bivens
* Q.C. (Ontario), J.S.D. (California), B.A. (Toronto), LL.B. (Osgoode),
LL.M. (California), retired Justice of the Federal Court of Appeal (Canada),
Adjunct Professor, Pepperdine University School of Law, Malibu, Califor-
nia, Adjunct Professor, University of Ottawa. Faculty of Law. This article is
based on a paper presented at a Federal Court Annual Meeting, Mont
Tremblant, Quebec, September 14, 2011.
1. Ken Cooper-Stephenson, Charter Damages Claims (Toronto, Ont.: Carswell,
1990).
2. M. Pilkington, Damages as a Remedy for Infringement of the Canadian
Charter of Rights and Freedoms (1984), 62 Can. Bar Rev. 517.
3. For example in the Federal Court, R. v. Crossman (1984), 9 D.L.R. (4th) 588,
12 C.C.C. (3d) 547, [1984] I F.C. 681 (T.D.); Maldoon J. in Rollinson v.
Canada (1994), 20 C.C.L.T. (2d) 92, 73 F.T.R. 16. 47 A.C.W.S. (3d) 68
(T.D.).
4. Now 42 U.S.C. 1983 and 1343(3). Originally called the Ku Klux Klan Act of
1871, enacted to interpose the federal courts to protect litigants from abuse
of their rights by state officials. This statute was not used widely either until
Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), per
Douglas J.
426](ViewImageLocal?handle=hein.journals/aqrty39&div=30&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Charter Damage Claims: New Dawn or Mirage
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most