What are the two remedies to a constitutional challenge to legislation?
Ontario, Canada
The following excerpt is from Law Society of Upper Canada v. Jodi Lynne Feldman, 2012 ONLSHP 168 (CanLII):
The Society explains the two remedies in the context of there being two aspects to a constitutional challenge to legislation. As set out in Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624 at para. 20, the panel may find the legislation unconstitutional on its face because it violates a Charter right and is not saved by s. 1 of the Charter. This would be a circumstance where disregarding the offending provisions would be an appropriate remedy. Alternatively, the panel may find that the Charter is infringed, not by the legislation, but by the delegated decision-maker in applying it. It is in the second case that s. 24 (1) may provide a remedy.
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