Formalism in Rights Remedies

The Supreme Court of Canada's recent decision in Canada (Canadian Human Rights Commission v. Canada (AG) can be seen as a book end to its two judgments last year on Charter remedies, R. v. Conway and Vancouver (City) v. Ward. Although Mowat is not a Charter case, these three decisions are fundamentally similar in that they reveal the Supreme Court's formalistic view of the rule of law. Despite the fact that Conway and Ward extend the range of remedies available in a Charter breach, ultimately, these three decisions reveal a conception of the rule of law where order is preferred over fairness. We respectfully argue that these judgments suggest that, to the Supreme Court, respecting the role of the legislature is more important than vindicating rights. Mowat makes this especially clear. Published in Charter and Human Rights Litigation (Volume XVIII, No. 2) by Federated Press.