Ontario (Attorney General) v G and ?Principled' Remedial Discretion: Lessons For Ireland

• Author: Davy Lalor
• Position: B.C.L (Dublin City University), B.C.L (University of Oxford), Ph.D Researcher at Dublin City University
• Pages: 55-66

IRISH JUDICIAL STUDIES JOURNAL

55

[2021] Irish Judicial Studies Journal Vol 5(2)

55

ONTARIO (ATTORNEY GENERAL) V G

AND

‘PRINCIPLED’ REMEDIAL DISCRETION:

LESSONS FOR IRELAND

Abstract: This article provides an overview and critical analysis of the Supreme Court of Canada’s recent

decision in Ontario (Attorney General) v G [2020] SCC 38 (‘G’). In G, the Supreme Court of Canada

purported to ‘clarify’ and ‘update’ the principles governing its remedial practice in cases where it finds a

violation of the Canadian Charter of Rights and Freedoms has occurred. The Court held that rather than

adopt on overly rigid remedial approach, or an approach which afforded unrestrained remedial discretion to

judges, courts should instead exercise a ‘principled’ approach to remedial discretion. Mindful of judicial and

academic criticism that their use had become ‘unprincipled’, the Court attempted to narrow the grounds on

which suspended declarations of invalidity could be granted. The Court also appeared to create something

approaching a presumption for the use of ‘tailored’ remedies such as reading in, reading down, and severance

where Charter violations are found. This article argues that Irish courts should consider greater use of tailored

remedies for laws which violate constitutional rights, and that while it is not without its difficulties, there is

helpful analysis in the judgment of G regarding both the circumstances in which tailored remedies should be

deployed and the circumstances in which suspended declarations are an appropriate remedy.

Author: Davy Lalor B.C.L (Dublin City University), B.C.L (University of Oxford), Ph.D Researcher at

Dublin City University, and Barrister-at-Law Degree Candidate at the Honorable Society of the King’s

Inns.

1

Introduction

In its recent decision in Ontario (Attorney General) v G, the Supreme Court of Canada (the

“Court”) purported to ‘clarify’ and ‘update’ the principles governing the remedies available

for laws which violate the Canadian Charter of Fundamental Rights and Freedoms (the

“Charter”).

2

In particular, the Court considered the principles applicable to the use of

suspended declarations of invalidity and attempted to narrow the basis on which suspensions

can be granted when the Court declares legislation which conflicts with the Charter to be of

no force or effect.

Having conducted a comprehensive review of its remedial jurisprudence, the Court

concluded that four foundational principles govern its remedial practice for Charter

violations: (1) Charter rights should be safeguarded through effective remedies; (2) the public

has an interest in the constitutional compliance of legislation; (3) the public is entitled to the

benefit of legislation; and (4) courts and legislatures play different institutional roles. The

Court held that these principles, and the language of the Charter itself, suggested that, where

the separation of powers allowed and where the rule of law so required, ‘tailored’ remedies

for Charter violations - such as reading in, reading down, and severance - should be used

instead of traditional invalidation.

3

On suspended declarations specifically, the Court concluded that they should be granted

rarely, and where an identifiable public interest grounded in the Constitution is endangered.

The Court further held that a suspension should only be granted where that constitutionally

1

Many thanks to Tom Hickey and Sorcha Montgomery for their comments on previous versions of this article. All errors or

omissions are the author’s alone.

2

Ontario (Attorney General) v G [2020] SCC 38 [107].

3

Reading in is when courts read in words to a statute to fix a constitutional flaw. Reading down is when courts

limit a law’s reach to a precisely defined extent to cure its unconstitutionality. Severance is when courts remove

words from a statute to make what remains constitutionally compliant.