de la Charte Clause Samples
de la Charte. Or, l’immunité restreinte accordée à l’État constitue justement un moyen d’établir un équilibre entre la protection des droits constitutionnels et la nécessité d’avoir un gouvernement efficace. Autrement dit, cette doctrine permet de déterminer si une réparation est convenable et juste dans les circonstances. Par conséquent les raisons qui sous- tendent le principe général de droit public sont également pertinentes dans le contexte de la Charte. Ainsi, l’État et ses représentants sont tenus d’exercer the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and effi- ciency of government action would be excessively constrained. Laws must be given their full force and effect as long as they are not declared invalid. Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that dam- ages may be awarded (Crown Trust Co. v. The Queen in Right of Ontario (1986), 26 D.L.R. (4th) 41 (Ont. Div. Ct.)). Thus, it is against this backdrop that we must read the following comments made by ▇▇▇▇▇ ▇.▇. in ▇▇▇▇▇▇▇▇▇, supra, at p. 720: An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with an action under s. 52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and imme- diately struck down pursuant to s. 52, ṯḵaṯ_?ill_be_ṯḵe_eṉď qf_ṯḵe_иaṯṯer. No retroactive s. 24 remedy will be avail- able. [Emphasis added.] In short, although it cannot be asserted that damages may never be obtained following a dec- laration of unconstitutionality, it is true that, as a rule, an action for damages brought under s. 24(1) of the Charter cannot be combined with an action for a declaration of invalidity based on s. 52 of the Constitution Act, 1982. Applying these principles to the situation before us, it is clear that the respondents are not entitled to damages merely because the enactment of Bill 7 was unconstitutional. On the other hand, I do not find any evidence that might suggest that the gov- ernment of New Brunswick acted negligently, in bad faith or by abusing its powers. Its knowledge of the unconstitutionality of eliminating the office of supernumerary judge has never been estab- lished. On the contrary, Bill 7 came into force on April 1, 1995, more than two years before this ...
de la Charte. La Cour ne peut ▇▇▇▇- ▇▇▇▇ la loi en tenant pour incluses des expectatives, 133 134 135 136 137 138 139 shared (as in the anticipation of a 40 percent work- load of supernumerary judges in New Brunswick) or expectation based on longstanding tradition (as in the tenure of post-retirement appointees to the Ontario provincial bench). I do not underestimate the importance of the unwritten customs and traditions that support the institutional independence of the courts. I say only that a particular workload benefit, which never rose to the level of being specified let alone guaranteed in law, does not constitute part of the “objective guar- antees” that define the status of judicial independ- ence and which thereby attract constitutional protec- tion. If the legislative provision is so imprecise as not to be capable of constituting part of the guarantee of financial security (or, more broadly, of judicial inde- pendence), its existence is not essential to the consti- tutionality of the court, and its repeal is not therefore constitutionally prohibited.