A unique feature of the Charter is s39(1), which governs the remedies available for breaches of the conduct mandate:
39 (1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
Elsewhere, I’ve argued that this provision is quite restrictive in a criminal law context, as many familiar criminal law ‘remedies’ are activated by broad problems such as unfairness, factual error, harm or disproportion, rather than illegality.
In his article in the Jan/Feb 2008 LIJ, Oscar Roos lists the following criminal justice remedies as potentially triggered by a breach of the conduct mandate:
- The substantive criminal law defence of unlawfulness (e.g. if someone is charged with resisting arrest, or escaping custody, and argues that the arrest or custody was unlawful)
- Quashing warrants for failure to strictly comply with applicable regulations
- Quashing committals for failure to strictly comply with applicable regulations. (Roos admits that there’s no strong authority for this remedy, but draws an analogy with warrants. I’m dubious about that, and also about whether committals are administrative functions.)
- Evidence law’s public policy discretion
- Stay of proceedings because of unreasonable delay
Apart from committals, the only other one on this list I’m doubtful about is the stay of proceedings for delay. As I see things, that isn’t a remedy ‘on a ground of unlawfulness’, but rather on a ground of injustice. So, on my view, s. 39(1) doesn’t permit a stay to be used as a remedy for any Charter breach. (I know this is a narrow view, but I’d ask: is a stay automatic once there’s Charter delay? If not, what governs its exercise and how are Charter breaches meant to be calibrated against other sorts of illegality and any other factors that would have to be considered? I think s. 39(1)’s purpose – which is to avoid litigation – includes avoiding the kind of uncertain and creative judicial reasoning that complex remedies like stays call for in Charter cases. I’m not saying I like that purpose or outcome, though.) [EDIT: And I’ve now come across a UK case that ruled that a breach of the UK equivalent to Charter. s25(2)(c) doesn’t mean that trials must be stayed (absent the unusual provisions that apply in Scotland.]