Nancy Sarmento Barkhordari (University of Toronto) has posted Palpable and Enforceable: A Normative Framework for a Stronger Damages Remedy under Section 24(1) of the Charter (Queen's Law Journal, Forthcoming) on SSRN. Here is the abstract:
Since Ward, claims for Charter damages remain wanting. This may be because claims for Charter damages are under-pursued, and, leaving the case of Henry aside, the few claims pursued have not yielded significant awards notwithstanding the cost of litigation. The result is a feed-back loop that suppresses legitimate claims for Charter damages by making them economically unreasonable to pursue. The modest awards -- I assert -- are too modest to serve the objectives of vindication, compensation and deterrence required by Ward, undermining the value of constitutionally protected rights. In this work, I explore the many consequences of such modest awards. Turning to tort law, I propose the functional theory underpinning the Charter damages remedy, and having regard to said theory, the manner by which clams for Charter damages should be quantified so as to provide a palpable and enforceable remedy. Particularly, I turn to Varuhas and Hill, to assert that like intentional torts actional per se where damages are presumed, so too should damages for Charter breaches be presumed. Finally, I show that my framework for a stronger damages remedy under the Charter improves the prospects for higher damages awards in a way that incentives victim litigants, deters government non-compliance with Charter rights, protects against tyranny and levels the playing field between state and citizen and those who have resources versus those who do not.
