No Right Without a Remedy

Nelles v. Ontario, 1989 CanLII 77 (SCC), (1989) 2 SCR 170

3. Policy Considerations

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Regard must also be had for the victim of the malicious prosecution. The fundamental flaw with an absolute immunity for prosecutors is that the wrongdoer cannot be held accountable by the victim through the legal process. As I have stated earlier, the plaintiff in a malicious prosecution suit bears a formidable burden of proof and in those cases where a case can be made out, the plaintiff's Charter rights may have been infringed as well. Granting an absolute immunity to prosecutors is akin to granting a license to subvert individual rights. Not only does absolute immunity negate a private right of action, but in addition, it seems to me, it may be that it would effectively bar the seeking of a remedy pursuant to s. 24(1) of the Charter. It seems clear that in using his office to maliciously prosecute an accused, the prosecutor would be depriving an individual of the right to liberty and security of the person in a manner that does not accord with the principles of fundamental justice. Such an individual would normally have the right under s. 24(1) of the Charter to apply to a court of competent jurisdiction to obtain a remedy that the court considers appropriate and just if he can establish that one of his Charter rights has been infringed. The question arises then, whether s. 24(1) of the Charter confers a right to an individual to seek a remedy from a competent court. In my view it does. When a person can demonstrate that one of his Charter rights has been infringed, access to a court of competent jurisdiction to seek a remedy is essential for the vindication of a constitutional wrong. To create a right without a remedy is antithetical to one of the purposes of the Charter which surely is to allow courts to fashion remedies when constitutional infringements occur. Whether or not a common law or statutory rule can constitutionally have the effect of excluding the courts from granting the just and appropriate remedy, their most meaningful function under the Charter, does not have to be decided in this appeal. It is, in any case, clear that such a result is undesirable and provides a compelling underlying reason for finding that the common law itself does not mandate absolute immunity.

Back v. Canada (Citizenship and Immigration), 2016 FC 257 (CanLII)]

[22] Noting the vast jurisprudence which has confirmed the maxim that there is no right without a remedy, the Applicants submit that to deny them the right to argue the appropriate remedy is to deny their constitutional right to judicial review, for which leave has been granted: R v Mills, 1986 CanLII 17 (SCC), (1986) 1 SCR 863; Nelles v Ontario, 1989 CanLII 77 (SCC), (1989) 2 SCR 170.

R. v. Kokopenace, 2015 SCC 28 (CanLII), (2015) 2 SCR 398

[81] First, my colleague’s solution is problematic. An accused who does not know that his constitutional right to a representative jury is being breached, and who has no meaningful way of finding out, is left in the unsatisfactory position of having a right without a remedy.

[82] With respect, I find it incongruous to tell an accused in one breath that he has an important constitutional right and, in the next, render it virtually impossible for him to establish that the right has been infringed. My colleague’s approach to jury representativeness rises and falls with the actual makeup of the jury roll: the characteristics of the individuals on the jury roll would determine whether the accused’s right has been respected. And yet, the data that bears on this crucial question is information that the state cannot legitimately seek out without obliterating our long-held commitment to juror privacy — a principle that my colleague agrees should be maintained. Any test that contains such an inherent contradiction is one that should be rejected.

Canada (Royal Canadian Mounted Police) v. Canada (Attorney General), 2005 FCA 213 (CanLII)

[58] Without a legal means of ensuring compliance with the Act by the Commissioner, the Commission becomes, for all practical purposes, hindered to the point of uselessness. I entirely agree with the following comments made by the learned Judge when discussing the respondent's argument that the Commission has no power to initiate legal proceedings. At paragraphs 163 and 164 of his decision, he wrote:

If the Respondent is correct in this regard it would mean that, under ss. 45.41 of the RCMP Act, the Complaints Commission has no right to compel the RCMP Commissioner to provide either a copy of the complaint or any material relevant to that complaint. Just as a right without a remedy is no right at all, so an obligation without the means to compel it is no obligation at all. It would mean, in effect, that the RCMP Commissioner would have a complete discretion, not only as regards what is and what is not relevant, but also as to whether any material is provided at all under ss. 45.41 even if it is relevant.

In my opinion, this is an extraordinary argument to make for anyone concerned with the integrity and reputation of the RCMP because its ultimate effect is to deprive the Force of a significant means of vindication in the face of Complaints against its members. If the Complaints Commissioner cannot compel the RCMP Commissioner to provide materials related to a Complaint, and it is all a matter of discretion on the part of the RCMP, then the whole concept of civilian supervision is severely undermined and a Complainant and the public will never know whether a Complaint has been truly investigated. It renders the Complaints Commission a token investigative agency. [Emphasis added.]

Bell Canada v. Canada (Human Rights Commission), 2000 CanLII 16451 (FC), (2001) 2 FC 392

[130] In MacBain v. Lederman the Federal Court of Appeal determined that, although the Canadian Bill of Rights does not expressly address the issue of remedies for failure to comply with its provisions, there can be no right without a remedy. In MacBain the Court declared the offending provisions to be inoperative with regard to the complaint against the appellant.

Lavoie v. Canada (Attorney General), 2007 FC 1251 (CanLII)

[39] The question that arises here is whether the effect of section 77 of the OLA is to exclude actions under section 18.1 of the Federal Court Act. The Federal Court of Appeal has already ruled on this point in Devinat v. Canada (Immigration and Refugee Board), (1999) F.C.J. No. 1774 (F.C.A.)(QL) (hereinafter Devinat). At that time it held that actions under section 18.1 of the Federal Courts Act could be brought for breaches of the provisions of the OLA not covered by subsection 77(1) of the OLA, in view of the fact that subsection 77(5) of the OLA states that nothing in the section “abrogates or derogates from any right of action a person might have other than the right of action set out in this section”. The Federal Court of Appeal’s analysis on the point was as follows:

The complaint made by the appellant falls under Part III of the OLA, which contains s. 20. Section 77(5) is linked to s. 77, as the first words in that subsection indicate. In the respondent’s submission, s. 77 does not preclude any other right of action in respect of complaints relating to ss. 4 to 7 and 10 to 13 or Parts IV or V, or based on s. 91. However, the situation is different with complaints coming under Part III of the OLA. In the respondent’s submission, s. 77(5) is of no assistance to the appellant and complaints covered by Part III may only be dealt with in accordance with the investigation procedure laid down in ss. 56 et seq. of the OLA. The Commissioner of Official Languages may, after investigation, report to the President of the Treasury Board (ss. 62(2) and 63(1)) at the same time as he communicates his conclusions to the complainant (s. 64). He may also elect to inform the Governor in Council (s. 65(1)) or Parliament, either in his annual report or in a special report (ss. 66 and 67). However, in the respondent’s submission, a court action may not be brought by the appellant.

The respondent said that the OLA contains a complete code. In the cases mentioned in Part X of the OLA, a complainant may bring an action in the courts. In other cases, it is for the Treasury Board, the Governor in Council or Parliament to take action on the report by the Commissioner of Official Languages. In the case at bar, the respondent submitted, the complainant does not have the right to go to the courts.

The appellant submitted, for his part, that the application of s. 77(5) is not limited to s. 77 and he retains his right to bring a court action for any other complaint not covered by the procedure laid down in s. 77.

Regardless of the meaning to be given to s. 77(5), on which it is not necessary for the Court to rule, the respondent’s argument in my opinion is not justified. For such a strict interpretation to be accepted, the exclusion would have to be made expressly. It clearly cannot be presumed.

English law is clear on this point. In Ashby v. White et al., Holt C.J. laid down the now well-known rule:

If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.

In Board v. Board, the Judicial Committee of the Privy Council also noted:

If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King's Courts of justice. In order to oust jurisdiction, it is necessary, in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court.

This statement by the Judicial Committee of the Privy Council in Board v. Board also refers to the theory of “inherent jurisdiction”, which has been reiterated by the Supreme Court of Canada on several occasions. In Canada (Canadian Human Rights Commission) v. Canadian Liberty Net, Bastarache J. indicated for the majority that the theory in question “arises from the presumption that if there is a justiciable right, then there must be a court competent to vindicate the right”.

It is true that this Court is not a successor to the royal courts: but both s. 18.1 of the FCA and Canadian Liberty Net recognized that it has clear and complete jurisdiction in matters of judicial review.

However, the respondent submitted that in Canada (Attorney General) v. Viola [see note 19 below], this Court stated that the OLA [TRANSLATION] “did not create new powers other than those conferred on the Commissioner of Official Languages and the Federal Court Trial Division, which it laid down expressly”. It argued that, apart from this express jurisdiction, the Federal Court of Canada is not empowered to hear a case like the one at bar.

The issue in Viola concerned the jurisdiction of an appeal board acting under the Public Service Employment Act [see note 21 below] to consider the legality or validity of the language requirements for a position. Noting that the jurisdiction of an appeal board was itself the outcome of a compromise arrived at by the legislature to accommodate the responsibilities assigned to the Treasury Board, the Department concerned and the Public Service Commission, Décary J.A., speaking for the Court, describes as follows his hesitation about augmenting or expanding the appeal board’s jurisdiction:

Just as I would hesitate to diminish it, for fear of putting at risk the balance which was sought and has probably been attained, so I would hesitate to augment it in the absence of any clear invitation to do so by the legislature . . .

Using the language of Fauteux J. in Goodyear Tire and Rubber Company of Canada, this Court clearly cannot, in the absence of any such express provision, exclude a “federal board, commission or other tribunal” such as the Board from the application of the general system of the law, such as s. 18.1 of the FCA.

Finally, we should note what Décary J.A. did not decide. Accordingly, in concluding his reasons he wrote:

The intervener, the Commissioner of Official Languages, put forward an additional argument in response to those of the respondent: he suggested that under the 1988 Official Languages Act, he alone has jurisdiction to see that the Act is properly administered. At the hearing, his counsel qualified this to say the least bold proposition and argued that as a consequence of Gariépy (supra, note 4), and I would add Kelso (supra, note 3), and in view of the very wording of subsections 77(5) and 78(3), the exclusive jurisdiction claimed by the Commissioner ousted only the jurisdiction of “administrative” tribunals and did not preclude that of “judicial” tribunals. Since I conclude that the 1988 Official Languages Act has not given the appeal board the power to decide on the validity or legality of the language requirements made by a department, I do not have to decide whether recourse to the Commissioner pursuant to that Act is necessarily the only recourse available in terms of “administrative” tribunals, in every case where a breach of the 1988 Official Languages Act is alleged.

[My emphasis.]

It goes without saying that Décary J.A. did not rule on the jurisdiction of “judicial” tribunals under the OLA, and did not preclude it.

We accordingly conclude that, with respect, the motions judge wrongly concluded that the OLA did not allow the appellant to bring the action covered by s. 18.1 of the FCA for an alleged breach of s. 20 of the OLA.

Devinat, at paragraphs 25 to 38.