Remedial Consensus and Dialogue Under the Charter: General Declarations and Delayed Declarations of Invalidity

Abstract

A consensus in Canadian Charter litigation has emerged in the 1990's under which Courts, cognizant of the separation of the executive and judiciary, have preferred the issuance of general declarations as opposed to specific injunctions and have begun to make increasing use of delayed declarations of invalidity. By examining Little Sisters, Eldridge and Auton, this paper critically evaluates the challenges that general declarations pose for governments and Charter applicants, while an analysis of Eldridge and Corbiere does the same for the use of delayed declarations of invalidity. Building upon the deficiencies of these developments, this article charts a path forward based on the use of declarations coupled with the retention of jurisdiction. In so doing, it criticizes the majority of the Court of Appeal in Doucet-Boudreau for their antipathy towards retention of jurisdiction and argues that retaining jurisdiction has the potential to make remedial dialogue more democratic and accessible for minorities and Charter applicants.

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