Can Charter damages be an appropriate remedy?

Underlying the question of whether Charter damages could be an appropriate remedy is a broader issue. It concerns how to strike an appropriate balance so as to best protect two important pillars of our democracy: constitutional rights and effective government; see, e.g., Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13 (CanLII), [2002] 1 S.C.R. 405, at para. 79. Granting Charter damages may vindicate Charter rights, provide compensation and deter future violations. But awarding damages may also inhibit effective government, and remedies other than damages may provide substantial redress for the claimant without having that sort of broader adverse impact. Thus there is a need for balance with respect to the choice of remedies. This concern for balance was emphasized recently in Henry v. British Columbia (Attorney General) in words that are especially apt in this case: “Courts should endeavour, as much as possible, to rectify Charter breaches with appropriate and just remedies. Nevertheless, when it comes to awarding Charter damages, courts must be careful not to extend their availability too far” (2015 SCC 24 (CanLII), [2015] 2 S.C.R. 214, at para. 91).