n Stellenbosch Law Review = Stellenbosch Regstydskrif - The development of Charter damages jurisprudence in Canada : guidelines from the Supreme Court




The pronouncements of the Supreme Court of Canada in [2010] 2 SCR 28 (SCC) have provided Canadian courts the long-awaited guidelines on the determination of claims for damages as the "appropriate and just relief" for breach of entrenched rights under section 24(1) of the Canadian Charter of Rights and Freedoms 1982 (the "Charter"). Faced with such a claim, the court must ask itself four pertinent questions. First and foremost, has a breach of a Charter right occurred? Secondly, if so, will damages serve the functional purpose of compensation, vindication and deterrence? If these questions are answered in the affirmative, the third question is whether the State could adduce any good governance considerations, probably, in the form of defence(s), to negate the claim. Finally, what, in monetary terms will be the appropriate and just award to the plaintiff having regard to the nature of the violation and the injury sustained. At that stage, the court may consider whether it will be necessary to award the plaintiff punitive damages. This article critically analyses in detail these guidelines in light of Commonwealth precedents on constitutional damages. It concludes that the judgment in is more comprehensive, extensive, less rigid and more workable as against the (2) [1978] 2 All ER 670 (PC) formula. Indeed, it provides Commonwealth constitutional jurisprudence a third option in addition to the existing [1994] 3 NZLR 667 (NZCA) ("") formulation and the 1997 3 SA 786 (CC) approach.


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