Principled Remedial Discretion Under the Charter

The first part of this paper outlines three different approaches to the exercise of remedial discretion under the Charter, namely the exercise of strong discretion, rule-based discretion and principled discretion. The Supreme Court’s decision in Doucet-Boudreau v. Nova Scotia is next examined as an example of how remedial discretion can be guided by general principles such as the need for an effective remedy and respect for institutional roles. The Court’s advance costs decision in British Columbia v. Okanagan Indian Band is examined from the perspective of all three models of discretion with an emphasis on the dangers of strong discretion that is not guided by law. Finally, decisions on suspended declarations of invalidity, in particular Schachter v. Canada, are examined with an emphasis on the dangers of rule-based discretion that reduces remedial discretion to self-executing categories