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- Title
Interim remedies and constitutional rights.
- Authors
Sharpe, Robert J
- Abstract
Interim remedies are granted before the court has been able to come to a final determination of the issues raised by the case. Canadian courts are reluctant to grant interim remedies that would restrain the application of a constitutionally challenged law. Ordinarily, the public interest in the orderly administration of duly enacted laws has been found to prevail over the claimant's right to interim protection of a claimed constitutional right. This article examines the reasons used to justify this cautious approach and argues that it is not entirely consistent with the Charter's promise of effective remedies. The rule limiting consideration of the merits of the claim on interim applications should be relaxed, especially where refusing an interim remedy will cause the immediate and irretrievable loss of a constitutional right. This would bring Canadian law into line with English, American and international law and would better protect fundamental rights and freedoms. Greater use should be made of interim remedies that exempt litigants from constitutionally challenged laws rather than suspend the operation of the law entirely.
- Subjects
CANADA; LEGAL remedies; CHARTERS; CIVIL rights; CONSTITUTIONAL law; INTERLOCUTORY decisions; INJUNCTIONS
- Publication
University of Toronto Law Journal, 2019, p9
- ISSN
0042-0220
- Publication type
Article
- DOI
10.3138/utlj.69.s1.001