Can an individual remedy under s. 24(1) of the Charter be made retroactive if the provision has been suspended?

British Columbia, Canada


The following excerpt is from McIvor v. Canada (Registrar of Indian and Northern Affairs), 2010 BCCA 168 (CanLII):

In Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679 at 720, 93 D.L.R. (4th) 1, Lamer C.J.C. indicated that individual remedies will rarely be available where legislation is struck down under s. 52 of the Constitution Act, 1982: An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with action under s. 52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52, that will be the end of the matter. No retroactive s. 24 remedy will be available. It follows that where the declaration of invalidity is temporarily suspended, a s. 24 remedy will not often be available either. To allow for s. 24 remedies during the period of suspension would be tantamount to giving the declaration of invalidity retroactive effect. Finally, if a court takes the course of reading down or in, a s. 24 remedy would probably only duplicate the relief flowing from the action that court has already taken.

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