Kent Roach (University of Toronto – Faculty of Law) has posted A New Constitutional Remedy: The Declaration Plus on SSRN. Here is the abstract:
This article argues that Canadian courts have recognized a new constitutional remedy: the declaration plus. This new remedy is stronger than a bare declaration that ends the court’s involvement with the case but is weaker than an injunction because it generally does not contain specific orders that can fairly be enforced through contempt of court sanctions if breached by the government. The first part of this article examines four recent cases including the Supreme Court’s decisions in Restoule and Pekuakamiulnuatsh Takuhikan as examples of courts recognizing the limits of a declaration and contemplating stronger remedies that draw on the full range of the court’s remedial powers. Subsequent sections suggest that the use of a declaration plus may have improved remedial decisions in the Little Sisters bookstore, Omar Khadr case and Doucet-Boudreau. The final section argues that the declaration plus should not be limited to Indigenous rights and minority language cases but could be appropriate in a broader range of complex and dynamic remedial contexts where a declaration may not be enough but a final mandatory order may be too much.
Recommended!