Section 24(1) of the Charter : Strategy and Structure

The bottom line for those who raise Charter issues when faced with criminal charges is the ability to obtain an effective remedy. The Canadian Bill of Rights was inadequate in part because it did not contain explicit enforcement provisions and s. 24 of the Charter is an attempt to prevent the recurrence of cases such as Hogan in which a right was infringed but no remedy provided. Section 24 departs from broader visions of constitutional standing and imposes the stricter requirement that people who apply to obtain an appropriate and just remedy must have had their rights violated. The enforcement of the new rights and freedoms in the Charter is reconciled with existing legal structures by requiring that applications for remedies under s. 24(1) be made to "a court of competent jurisdiction". By giving courts the discretion to provide the remedy they consider appropriate and just in the circumstances, the Charter provides judges with only vague guidelines for making remedial choices. The courts have felt comfortable in dealing with s. 24 remedies such as exclusion of evidence, return of evidence, stays of proceedings, reductions of sentence, costs, and the granting of interlocutory appeals. The temptation to retain common law approaches is most compelling in such familiar areas. In the criminal law context, concerns about crime control, an efficient trial process, control of the police and public outrage at the accused going free will often seem compelling. If these considerations override the need to vindicate rights and provide full compensation for their violation, the Charter's promise of legal rights as a crucial restraint on state activity will be hollow and illusionary. People who are accused of crimes and come to courts for Charter remedies are among the least popular or powerful of those who may be subjected to Charter violations; care must be taken that they are not denied remedies for unarticulated or unjustified reasons