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.