“Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies” (2003) 21 Supreme Court Law Review (2d) 205-66 (with K. Roach).
Before the advent of the Canadian Charter of Rights and Freedoms, legislatures generally made new legal rules with prospective effect, while courts recognized and applied pre-existing legal rules with retroactive effect. However, this simple dichotomy—between prospective legislation and retroactive adjudication—has recently come under severe strain. To temper the drastic effects of some of their rulings, the courts have used new remedial devices such as delayed declarations of invalidity and, in a few cases, prospective rulings (coupled with transition periods). Legislatures have entered into the domain traditionally reserved to courts, and now provide remedies for the violation of constitutional rights. Courts have prompted legislative remedies through the use of delayed declarations of invalidity. When legislatures do so, it is open to them to preempt the declaration of invalidity from taking effect, by retroactively curing the unconstitutionality prior to the termination of the suspension. However, most reply legislation is prospective, not retroactive. Prospective legislation, coupled with new remedial techniques such as delayed declarations of invalidity and prospective ruling, raises concerns that successful Charter rights claimants will have a right, but no remedy. We provide some guidelines for how courts and legislatures can work together to achieve effective constitutional remedies. First, courts should be careful when departing from the norm of full retroactivity, because of the danger of leaving successful Charter applicants without remedies. Second, in cases involving legislation, courts should remand remedial issues to legislatures if the latter enjoy certain kinds of comparative institutional advantages over the former. Moreover, legislatures should be encouraged to consider the case for making remedial legislation retroactive so that successful Charter applicants and others in a similar position are not left without a remedy.