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February 23, 2015

Rights often without legal remedies

Reuel S. Amdur

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The Canadian judiciary is responsible for an original and important development in provision of remedies. Remedies for wrongs are provided in the courts, in legislation, and in executive branch regulations.

In Canada, the Supreme Court has been desirous of avoiding a legislative role, and so in some cases it has struck down provisions but has given government a period of time to bring in legislation to meet the judicial requirements.  That is the innovation, one that University of Toronto law professor Kent Roach finds to be positive. 

On February 2, he spoke at a Parliamentary breakfast under the auspices of the Federation for the Humanities and Social Sciences and the Pierre Elliott Trudeau Foundation.  The lecture was entitled “Judicial Activism and the Role of the Courts in Providing Remedies.”

With regard to the use of this innovation, he cited the case taken by Canadian Doctors for Refugee Health, in which the Federal Court threw out the government’s severe restrictions on health care benefits for refugees. 

The judge gave the government four months to bring in new regulations that meet the standards set by the court.  A few days after his lecture, the Supreme Court ruled to allow assisted suicide.  It gave the government a year to bring in appropriate legislation.

Roach sees two problems with the Supreme Court decision on refugee health care.

In the first place, claimant Hanif Ayubi is a diabetic and requires insulin.  He could die without his medication.  The judgment, he argued, should have made immediate provision for him. 

On the other hand, he argued that four months is too short a time for the government to revise the regulations.  But Roach did not take into consideration the fact that there are other Auyubis in Canada, making a one year delay potentially very harmful for them.  The judge called the government’s policy “cruel.”  Roach contended that a court must give the legislature or executive branch a chance to fix the problem but needs also to provide effective remedies. 

Supreme Court Chief Justice Beverley McLachlin has commented that remedies tend to be neglected.  This leaves the paradoxical situation of rights without a remedy when they are violated. 

Roach observed that even when remedies exist, they are often financially inaccessible.  To undertake court action when rights are violated is so expensive that either damages need to be “catastrophic,” as in the Maher Arar case, or the suit needs to be part of a class action.  It can, he said, cost $180,000 just to certify class action.  For an individual to go to court for damages because of a violation of his rights would be “economically insane.” 

Arar was successful in Canada but not in the United States, where courts accepted the government argument that the suit could harm national security.

In some cases, courts may retain jurisdiction to see that orders are carried out appropriately, especially since situations may change.  They always retain jurisdiction in family law and bankruptcy. 

American courts have retained jurisdiction in cases relating to prisons, relating to health care and overcrowding.  He believes that Canadian courts are unlikely to do the same as, he argued, “Courts are unsuited for resolving complex situations.”  They need to avoid micro-managing institutions. 

In his view, courts can set general standards and let the executive branch decide on implementation.  On the other hand, he cited the case of the Little Sisters gay bookstore, which faced ongoing problems with government interference, where retaining jurisdiction might have been called for. 

Roach discussed the Chaoulli case, in which the Supreme Court ruled against Quebec on the issue of private health care. 

Dr. Chaoulli’s patient required a hip replacement and the court found that the delay facing him was indefensible, thus justifying resort to the private sector.  The court did not set out a detailed implementation program, leaving the matter instead to the Quebec government.  Quebec responded in two ways.  It provided limited access to private medical insurance and it acted to cut wait times for hip replacements. 

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