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

AuthorDavy Lalor
PositionB.C.L (Dublin City University), B.C.L (University of Oxford), Ph.D Researcher at Dublin City University
[2021] Irish Judicial Studies Journal Vol 5(2)
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
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
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.
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
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.
Ontario (Attorney General) v G [2020] SCC 38 [107].
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.

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