No Right Without a Remedy

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.]