Tuesday, January 27, 2009

Defendants under section 24(1) of the Charter

The defendant must be a state actor.

"...A cause of action cannot be sustained where the causal link between the actions of the government and the alleged violation of the appellants' rights under the Charter is uncertain, speculative and hypothetical. In this case the appellants raised matters that lie in the realm of conjecture rather than in fact. It is simply not possible for a court, even with the best available evidence, to do more than speculate upon the likelihood of the Cabinet's decision to permit testing of the cruise missile resulting in an increased threat of nuclear war: Operation Dismantle Inc. et al. v. The Queen et al., 1985 CanLII 74 (S.C.C.), [1985] 1 S.C.R. 441; R. v. Vermette, 1988 CanLII 87 (S.C.C.), [1988] 1 S.C.R. 985.

It is true that relief may be granted for a prospective Charter violation. However, relief will only be granted in circumstances where the claimant is able to prove that there is a sufficiently serious risk that the alleged violation will in fact occur. In Operation Dismantle Inc., Dickson C.J. adopted the requirement that the individual seeking to restrain government action must demonstrate a "high degree of probability" that the Charter infringement will occur before the court will grant relief: Phillips v. Nova Scotia (Westray Mine Inquiry), 1995 CanLII 86 (S.C.C.), [1995] 2 S.C.R. 97..."

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