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Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies
Supreme Court Law Review (2d) (2003)
  • Sujit Choudhry, Berkeley Law
  • Kent Roach
Cited by Hislop v. Canada, 2007 SCC 10 at paras. 86, 138, 158, 159; 2004 CanLII 43774 (ON C.A.) at para. 85. Before the advent of the Charter, the Canadian legal system contained settled understandings regarding judicial and legislative approaches to law-making. In brief, legislatures generally made new legal rules with prospective effect, while courts recognized and applied pre-existing legal rules with retroactive effect. This traditional approach allocated issues of distributive justice to the legislature, and assigned courts the role of achieving corrective justice in the particular case at hand. However, this simple dichotomy - between prospective legislation and retroactive adjudication - has recently come under severe strain. First, the Charter has given the courts new and onerous responsibilities to make decisions that are laden with distributive consequences for a wide range of interests other than those of the parties, and which may disrupt a range of legitimate expectations. We will examine a number of examples where there has been an embarrassing amount of confusion about the implications of the Supreme Court's rulings. There is a desperate need for legal principles to guide courts about when and why they should depart from their traditions of immediate and retroactive remedies. Second, legislatures have entered into the domain traditionally reserved to courts, and now provide remedies for the violation of constitutional rights. But prospective legislation, coupled with new remedial techniques such as delayed declarations of invalidity and prospective ruling, raises concerns that successful Charter rights claimants will have a right, but no remedy.
Publication Date
Citation Information
Sujit Choudhry and Kent Roach. "Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies" Supreme Court Law Review (2d) Vol. 21 (2003)
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