Joe’s Justice: Substantive, Procedural and Remedial Equality

Authors

Kent Roach, Faculty of Law, University of Toronto

Abstract

Drawing on his factums in many constitutional cases, this article suggests that Joe was an early and consistent champion for substantive, procedural and remedial equality. The first part examines Joe’s commitment to substantive equality including his arguments for British Columbia in Andrews v. Law Society of British Columbia, his forward-looking approach to Indigenous rights and his commitment to authentic public law litigation that respected the disadvantaged. The second part examines Joe’s recognition that substantive equality cannot be achieved without procedural equality that gives disadvantaged litigants the equal benefit of procedural rules that too often favour governments. It examines Joe’s arguments and impact with respect to public interest standing, court fees, advanced costs, special costs and statute of limitations. The third part examines how Joe argued against remedies that deprived disadvantaged groups of immediate and effective remedies. Joe’s vision of public law litigation — what he defended as the “public good of adjudication” — is an important legacy that should continue to be advanced. Joe understood that the promised land of substantive equality also requires procedural and remedial equality.

Citation Information

Roach, Kent. "Joe’s Justice: Substantive, Procedural and Remedial Equality." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 104. (2022).
DOI: https://doi.org/10.60082/2563-8505.1431
https://digitalcommons.osgoode.yorku.ca/sclr/vol104/iss1/9

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

References

1 Joe was a rock star among lawyers and as you will hopefully see from quotes from some of his factums, a poet. Thus, he deserves the same treatment as Bruce (Springsteen).

2 The recent factums are available on the Supreme Court of Canada's web site and many of the older ones are available on the website of the David Asper Centre for Constitutional Rights, online: https://aspercentre.ca/constitutional-cases/supreme-court-case-materials/ alphabetical-list-of-cases/ I secured other of Joe's factums by requests to the Supreme Court.

3 Andrews v. Law Society of British Columbia, [1989] S.C.J. No. 6, [1989] 1 S.C.R. 143 (S.C.C.).

4 This was Joe's description of Little Sisters Book Store in his factum for Little Sisters in Little Sisters II, at para. 143.

5 Attorney General of British Columbia Factum in Andrews, at paras. 30-31, online: https://aspercentre.ca/wp-content/uploads/2017/06/Appellant-Attorney-General-of-BritishColumbia.pdf citing US v. Carolene Products Co, 304 U.S. 144 at 152-153 fn 4 and John Hart Ely, Democracy and Distrust (Cambridge: Harvard University Press, 1980). Joe also cited Andrew Petter and Patrick Monahan's warnings about the Charter being used to protect the advantaged. Although he defended the citizenship requirement for lawyers, Joe's arguments were very different than those offered by counsel for the Law Society of British Columbia who argued that the legislative classification was rational and proportionate.

6 For example, Wilson J. reflected Joe's argument when she stated: "while legislatures must inevitably draw distinctions among the governed", they should not do so to disadvantage groups "lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated . . . . the range of discrete and insular minorities has changed and will continue to change with changing political and social circumstances." Andrews v. Law Society of British Columbia, [1989] S.C.J. No. 6, [1989] 1 S.C.R. 143, at 152 (S.C.C.).

7 For arguments that s. 15 better captures the concerns articulated in Bedford, Carter and other criminal cases see Jonathan Rudin "Tell it Like it Is: An Argument for the Use of Section 15 Over Section 7 to Challenge Discriminatory Criminal Legislation" (2017) 64 C.L.Q. 317. Jonathan is also a rock star lawyer and thus also merits first name treatment. I have been very fortunate to have known and learned from both Joe and Jonathan.

8 Factum for Lee Carter et al. in Carter I, online: https://aspercentre.ca/wp-content/uploads/ 2017/06/FM010_Appellants_Lee-Carter-et-al.pdf, at para. 1.

9 Tsilhqot'in Nation v. British Columbia, [2024] S.C.J. No. 44, 2014 SCC 44 (S.C.C.).

10 John Borrows "(Ab)originalism and Canada's Constitutionalism" (2012) 58 Sup. Ct. L. Rev. https://doi.org/10.60082/2563-8505.1259

(2d) 351. For a case where Joe argued that the duty to consult case should be informed by the United Nations Declaration on the Rights of Indigenous Peoples see Snuneymuxw First Nation v. Board of Education - School District #68, [2014] B.C.J. No. 1343, 2014 BCSC 1173 (B.C.S.C.).

11 Factum for Assembly of First Nations in Tsilhqot'n First Nation, online: https://www. scc-csc.ca/WebDocuments-DocumentsWeb/34986/FM130_Intervener_Assembly-of-FirstNations.pdf, at paras. 3-4 [emphasis added].

12 Beckman v. Little Salmon/Carmacks First Nation, [2010] S.C.J. No. 53, [2010] 3 S.C.R. 103 (S.C.C.).

13 Factum for Assembly of First Nations in Tsilhqot'n First Nation, online: https://www. scc-csc.ca/WebDocuments-DocumentsWeb/34986/FM130_Intervener_Assembly-of-FirstNations.pdf, at paras. 29-30.

14 Factum of the Intervenor Kwanlin Dun First Nation in Beckman v. Little Salmon/ Carmacks First Nation, at para. 45.

15 Grassy Narrows First Nation v. Ontario (Natural Resources), [2014] 2 S.C.J. No. 48, 2014 SCC 48 (S.C.C.).

16 Assembly of First Nations Factum in Grassy Narrows, online: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/35379/FM140_Intervener_Assembly-of-First-Nations-et-al. pdf, at para. 33.

17 Derrick A. Bell Jr. "Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation" (1976) 85 Yale. L.J. 470. https://doi.org/10.2307/795339

18 Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] S.C.J. No. 45, 2012 SCC 45 (S.C.C.) [hereinafter "Downtown Eastside"].

19 Canada (Attorney General) v. Bedford, [2013] S.C.J. No. 72, 2013 SCC 72 (S.C.C.) [hereinafter "Bedford"].

20 Factum for Downtown Sex Workers United Against Violence, at para. 85.

21 Ross Sandler & David Schoenbrod, Democracy by Decree (New Haven: Yale University Press, 2003); Anuj Bhuwania Courting the People (Cambridge: Cambridge University Press, 2017).

22 Downtown Eastside Factum, at para. 127.

23 Downtown Eastside Factum, at para. 112.

24 Downtown Eastside Factum, at para. 99.

25 Other reasons include limits of legal aid funding, the willingness of government lawyers and courts to invoke procedural hurdles such as challenging standing, cause of actions, the impartiality of experts and applications for advanced costs. As Amar Khoday suggested too in an earlier draft, such preliminary arguments can be seen as a theft or tax of the limited time that civil society groups and pro and low bono litigators can devote to public law litigation. See Amar Khoday "Every Moment Counts" (2021) 69 C.L.Q. (forthcoming).

26 Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] S.C.J. No. 63, 2003 SCC 62 (S.C.C.). A related issue is discussed by Alison Latimer in this volume: namely a strange and technical reluctance by the courts seen in Little Sisters to combine remedies under ss. 24 and 52 that encourages litigation over such matters and can fail to provide comprehensive relief.

27 In the prison context see Francis v. Ontario, [2021] O.J. No. 1629, 2021 ONCA 197 (Ont. C.A.); Hamm v. Canada (Attorney General), [2021] A.J. No. 692, 2021 ABCA 190 (Alta. C.A.); Brazeau v. Canada (Attorney General), [2020] O.J. No. 1062, 2020 ONCA 184 (Ont. C.A.). Other numerous Charter class actions include: Capital District Health Authority v. Murray, [2017] N.S.J. No. 117, 2017 NSCA 28 (N.S.C.A.); King & Dawson v. Government of P.E.I, [2020] P.E.I.J. No. 43, 2020 PECA 13 (P.E.I.C.A.); Cirillo v. Ontario, [2021] O.J. No. 2886, 2021 ONCA 353 (Ont. C.A.); Elder Advocates of Alberta Society v. Alberta Health Services, [2021] A.J. No. 245, 2021 ABCA 67 (Alta. C.A.); Canada v. John Doe, [2016] F.C.J. No. 695, 2016 FCA 191 (F.C.A.); Good v. Toronto (Police Services Board), [2016] O.J. No. 1748, 2016 ONCA 250 (Ont. C.A.), leave to appeal refused [2016] S.C.C.A. No. 255 (S.C.C.); Neufeld v. Manitoba, [2002] M.J. No. 374, 2002 MBCA 123 (Man. C.A.).

28 Factum for Little Sisters in Little Sisters II, at para. 122.

29 Factum for Little Sisters in Little Sisters II, at para. 48

30 The University of Toronto classified clinical directors at its International Human Rights Program (and by implication its Asper Centre for Constitutional Rights where Joe served as its first constitutional litigator in residence) as having a “managerial staff position” who are not entitled to the same academic freedom as more highly paid professors such as myself even though they teach classes, engage in research and take controversial positions. See statements by U of T Vice President of Human Resources and Equity, Kelly Hannah-Moffat and Dean of Law, Edward Iacobucci, online: http://ultravires.ca/wp/wp-content/uploads/2020/09/Dean-Iacobucci-VP-Human-Resources-Equity-Statements.pdf and statements by President, Meric Gertler, online: http://ultravires.ca/2021/07/governing-council-discusses-the-future-of-theihrp/. The Cromwell report on the controversy over the aborted search affirms that the “conventional thinking” at the University of Toronto “that existing formal protections” do not apply to clinical instructors who are in “the professional/managerial classification”: Hon. Thomas Cromwell, Independent Review of the Search Process for the Directorship of the International Human Rights at the University of Toronto (March 15, 2021), at 57, online: https://www.president.utoronto.ca/secure-content/uploads/2021/03/Report-of-the-Hon-ThomasA-Cromwell-CC-–-March-15-2021.pdf. Disappointedly, Cromwell concluded it would not be “prudent” for him to offer advice about whether clinical faculty should be protected by formal and enforceable measures of academic freedom even though he was presented with a submission detailing threats to academic freedom of clinical faculty. Justice Cromwell only offered a vague suggestion that “the University examine the protections for clinical instructors and similar positions whose duties require them to tackle topics likely to arouse controversy and to take steps to ensure that their efforts will be supported so long as they meet the highest professional standards” (at 74). It is not clear what Cromwell means by “support” or “the highest professional standards”. In its unsuccessful defence against a unanimous censure by the Canadian Association of University Teachers (“CAUT”), the University of Toronto argued as point one of its defence that clinical directors are not only “managerial” but not even “academic staff” under the broad definition in CAUT’s bylaws. See online: https://www.president.utoronto.ca/secure-content/ uploads/2021/04/Presidents-Letter-Plus-Appendix-to-CAUT-April-20-2021.pdf. In response to this defence, I resigned in protest as Chair of the Faculty Advisory Committee for the Asper Centre for Constitutional Rights where Joe served as its first litigator in residence. The University’s position that clinical faculty are not “academic staff” in my view denied them their equality as a key component of the law faculty. Online: https://drive.google.com/file/ d/1AilEUh6e9PuDFqf1a__Gw1cOe9zcLcIU/view. The University of Toronto has committed to implement the Cromwell report but given the vagueness of Cromwell’s advice, it is doubtful whether clinical faculty will be able to have formal protections of academic freedom that could trigger a grievance or other legal proceeding. Consistent with the thesis of this article, these are not mere procedural matters. Rather, they are necessary to protect the substance of academic freedom and the equality of clinical instructors. In short, it will be cold comfort if clinical directors and instructors have the “support” of a University that has deliberately and repeatedly stressed that clinical faculty are “managerial” and “non-academic”. The issue that exists at the University of Toronto may also exist at other Canadian law schools which tend to sharply differentiate between faculty and those lawyers who interact with clients as part of often much heralded clinical programs. There is increased recognition of the need for clinical instructors to have the benefits of academic freedom in American law schools. The Association of American Law Schools has stated: “The resolve of the Association has been reflected in the public positions that it has taken in support of clinics at member schools that have been the subject of external pressure. The Association reaffirms that academic freedom is critical to achieving the objectives of clinical legal education and that the principle of academic freedom applies equally to clinical law faculty.” The Association of American Law Schools Support of Academic Freedom for Clinical Faculty (January 3, 2001), online: https://www.aals.org/about/handbook/goodpractices/academic-freedom/. Similarly the American Bar Association accredits law school on the basis that “A law school shall afford to full-time clinical faculty members a form of security of position reasonably similar to tenure, and non-compensatory perquisites reasonably similar to those provided other full-time faculty members.”Standard 405(c), online: https://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/ 2017-2018ABAStandardsforApprovalofLawSchools/2017_2018_standards_chapter4.authcheckdam.pdf. Even these more robust standards have not avoided interference with the academic freedom of clinical programs which have also occurred at the University of Toronto’s International Human Rights Program apart from the contested allegations over the candidacy of Valentina Azarova as Director. See Robert R. Kuehn & Bridget M. McCormack, “Lessons from Forty Years of Interference in Law School Clinics” (2011) 24:1 Geo J. Legal Ethics 59, at 77-78. It is odd that the University of Toronto’s Faculty of Law which emulates top American law schools in its tuition, hiring, publication and guest speaking practices should reject American standards with respect to the academic freedom of “non-academic” clinical directors that it employs full time and expects to deliver a key component of its academic program.

31 Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] S.C.J. No. 45, 2012 SCC 45 (S.C.C.).

32 Canada (Attorney General) v. Bedford, [2013] S.C.J. No. 72, 2013 SCC 72 (S.C.C.).

33 He elaborated: "constitutional litigation affects the people of Canada, not merely the parties to the litigation. One of the main and most injurious problems of adhering to precedent in the face of materially different legislative and social facts is that it results in a long delay in accessing justice . . . Often in Charter cases, justice delayed is justice denied. This case presents stark illustrations of this point in the well-publicized example of the missing and murdered women of Vancouver's notorious 'downtown eastside'". Factum of the David Asper Centre in Bedford, online: https://aspercentre.ca/wp-content/uploads/2017/04/BedfordFactum.pdf, at paras. 29, 33.

34 Downtown Eastside Sex Workers United Against Violence factum, online: https:// www.scc-csc.ca/WebDocuments-DocumentsWeb/33981/FM020_Respondents_DowntownEastside-Sex-Workers-United-Against-Violence-Society-and-Sheryl-Kiselbach.pdf, at para. 3.

35 Downtown Eastside Sex Workers United Against Violence factum, online: https:// www.scc-csc.ca/WebDocuments-DocumentsWeb/33981/FM020_Respondents_DowntownEastside-Sex-Workers-United-Against-Violence-Society-and-Sheryl-Kiselbach.pdf, at para. 68.

36 Protection of Communities and Exploited Persons Act, S.C. 2014 c. 25.

37 Most of the relatively few Charter challenges of the new law have been brought by those accused of activities that involve some form of ownership or organization of a sex work/ escort business. See, for example, R. v. Boodhoo, [2018] O.J. No. 6413, 2018 ONSC 7205 (Ont. S.C.J.); R. v. Anwar, [2020] O.J. No. 820, 2020 ONCJ 103 (Ont. C.J.).

38 Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), [2014] S.C.J. No. 59, 2014 SCC 59 (S.C.C.). https://doi.org/10.4324/9780203066973-4

39 Advocates Society Factum in Trial Lawyers Assn v. B.C., at para. 20, online: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/35315/FM080_Intervener_AdvocatsSociety.pdf.

40 Joe Arvay & Alison Latimer "Cost Strategies for Litigants: The Significance of R. v. Caron" (2011) 54 Sup. Ct. L. Rev. (2d) 427, at 428. https://doi.org/10.60082/2563-8505.1221

41 British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] S.C.J. No. 76, 2003 SCC 71 (S.C.C.).

42 Factum for the Intervener Chief Robert William in Okanagan Indian Band, at para. 47.

43 Joe Arvay & Alison Latimer "Cost Strategies for Litigants: The Significance of R. v. Caron" (2011) 54 Sup. Ct. L. Rev. (2d) 427, at 428. https://doi.org/10.60082/2563-8505.1221

44 Joe Arvay & Alison Latimer "Cost Strategies for Litigants: The Significance of R. v. Caron" (2011) 54 Sup. Ct. L. Rev. (2d) 427. https://doi.org/10.60082/2563-8505.1221

45 Factum for Little Sisters in Little Sisters II, at para. 141.

46 Factum for Little Sisters in Little Sisters II, at paras. 92, 94.

47 Factum for Little Sisters in Little Sisters II, at paras. 41, 48, 62.

48 Factum for Little Sisters in Little Sisters II at para. 143.

49 R. v. Caron, [2011] S.C.J. No. 5, [2011] 1 S.C.R. 78 (S.C.C.).

50 Canadian Civil Liberties Association factum in R. v. Caron, at para. 25

51 Canadian Civil Liberties Association factum in R. v. Caron, at para. 28.

52 Joe Arvay & Alison Latimer "Cost Strategies for Litigants: The Significance of R. v. Caron" (2011) 54 Sup. Ct. L. Rev. (2d) 427, at 449 fn 66. https://doi.org/10.60082/2563-8505.1221

53 Chris Tollefson, Darlene Gilliland & Jerry DeMarco "Towards A Costs Jurisprudence in Public Law Litigation" (2004) 83 Can. Bar Rev. 473; Benjamin Berger "Putting a Price on Dignity: The Problem of Costs in Charter Litigation" (2002) 26 Advocates Q. 235. Joe cited both of these works in his advance costs factums.

54 Factum for Lee Carter et al. in Carter I, at para. 166.

55 Faculty Assn. of the University of British Columbia v. University of British Columbia, [2009] B.C.J. No. 220, 2009 BCCA 56 (B.C.C.A.).

56 Factum for Lee Carter et al. in Carter I, at para. 166.

57 Bruce Springsteen, "Jungleland", online: https://www.songfacts.com/lyrics/brucespringsteen/jungleland.

58 Canada (Attorney General) v. PHS Community Services Society, [2011] S.C.J. No. 44, 2011 SCC 44 (S.C.C.).

59 Insite/PHS Community Services Society Factum in Canada v. PHS Community Services Society, at para. 158, online: https://aspercentre.ca/wp-content/uploads/2017/06/ FM030_Respondents_PHS-Community-Services-Society-et-al.pdf.

60 Factum for Lee Carter et al. in Carter I, at para. 177.

61 Rahvandal v. Saskatchewan, [2009] S.C.J. No. 7, 2009 SCC 7 (S.C.C.).

62 R. v. Conway, [2010] S.C.J. No. 22, 2010 SCC 22 (S.C.C.).

63 Factum for B.C. Review Mental Health Review Board in R. v. Conway, at para. 21.

64 Factum for B.C. Review Mental Health Review Board in R. v. Conway, at para. 34.

65 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] S.C.J. No. 14, 2013 SCC 14 (S.C.C.).

66 Factum for Assembly of First Nations Factum in Manitoba Metis Federation Inc., at para. 28, online: https://aspercentre.ca/wp-content/uploads/2017/06/Manitoba-Metis-FederationInc.-v.pdf.

67 Factum for Assembly of First Nations Factum in Manitoba Metis Federation Inc., at para. 32, online: https://aspercentre.ca/wp-content/uploads/2017/06/Manitoba-Metis-FederationInc.-v.pdf.

68 The Constitutional Law Group Canadian Constitutional Law (Toronto: Emond Montgomery, 2017), at 46-51. I am responsible for the remedies chapter in this casebook.

69 Beverley McLachlin "Rights and Remedies -Remarks" in Robert J. Sharpe & Kent Roach Taking Remedies Seriously (Ottawa: Canadian Institute for the Administration of Justice, 2010), at 21.

70 Beverley McLachlin "Rights and Remedies -Remarks" in Robert J. Sharpe & Kent Roach Taking Remedies Seriously (Ottawa: Canadian Institute for the Administration of Justice, 2010), at 22.

71 Carter v. Canada (Attorney General), [2015] S.C.J. No. 5, 2015 SCC 5 (S.C.C.).

72 R. v. Ferguson, [2008] S.C.J. No. 6, 2008 SCC 6 (S.C.C.).

73 Factum for Lee Carter et al. in Carter I, at para. 160.

74 Factum for Lee Carter et al. in Carter I, at para. 162.

75 Factum for Lee Carter et al. in Carter II, at para. 1, online: https://www.scc-csc.ca/ WebDocuments-DocumentsWeb/35591/FM280_Appellants_Lee-Carter-et-al_ResponseRéponse_2015-12-09.pdf [emphasis in original].

76 Bruce Ryder "Suspending the Charter" (2003) 21 Sup. Ct. L. Rev. (2d) 267; Robert Leckey "The Harms of Remedial Discretion" (2016) 14 I. Con. 584. https://doi.org/10.1093/icon/mow042

77 See generally Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue rev ed. (Toronto: Irwin Law, 2016), c. 16.

78 Truchon c. Procureur général du Canada, [2019] Q.J. No. 7750, 2019 QCCS 3792 (Que. S.C.) (finding requirement that death must be reasonably foreseeable unconstitutional). On Parliament's lack of respect for the record in Carter see Allison Latimer "Constitutional Conversations" (2019), 88 Sup. Ct. L. Rev. (2d) 231. Much the same could be said about Parliament's lack of respect for the record in Bedford.

79 Factum for Lee Carter et al. in Carter II, at para. 164.

80 See, for example, Canada (Attorney General) v. F. (E.), [2016] A.J. No. 505, 2016 ABCA 155 (Alta. C.A.).

81 Factum for Lee Carter et al. in Carter II, Tab B.

82 Carter v. Canada (Attorney General), [2016] S.C.J. No. 4, 2016 SCC 4 (S.C.C.).

83 Ontario (Attorney General) v. G., [2020] S.C.J. No. 38, 2020 SCC 38 (S.C.C.). Even the most restrictive judges in dissent would allow exemptions to prevent "irreparable harm" (at para. 274). Joe had similarly argued in 2016: "it is clear that Canadians will experience irreparable harm if the suspension is extended. For many currently grievously and irremediably ill persons. . ., an extension of any length may forever remove all possibility of a meaningful remedy for the breach of their constitutional rights. This is one of those cases where the ancient maxim of 'justice delayed is justice denied' could not be more true and compelling." Factum for Lee Carter et al. in Carter II, at para. 55, online: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/35591/FM280_Appellants_Lee-Carter-et-al_ResponseRéponse_2015-12-09.pdf.

84 Eventually the Attorney General of Canada agreed to pay the costs of those who litigated to achieve individual remedies and exemptions from the unconstitutional law subject to a suspended declaration of invalidity. Truchon c. Procureur général du Canada, [2021] J.Q. no 1584, 2021 QCCS 590 (Que. S.C.); Truchon c. Procureur général du Canada, [2020]; J.Q. no 12586, 2020 QCCS 4388 (Que. S.C.).

85 Kent Roach "Remedies for Laws that Violate Human Rights" in John Bell et al., Public Law Adjudication in Common Law Systems (Oxford: Hart, 2016), at 269-300; Kent Roach "Dialogic Remedies" (2019) 19 I. Con. 860 https://doi.org/10.1093/icon/moz056; Kent Roach Remedies for Human Rights Violations (Cambridge: Cambridge University Press, 2021), c. 2. https://doi.org/10.1017/9781108283618

86 Egan v. Canada, [1995] S.C.J. No. 43, [1995] 2 S.C.R. 513 (S.C.C.). https://doi.org/10.1016/0090-3019(95)80100-U

87 Schachter v. Canada, [1991] S.C.J. No. 68, [1992] 2 S.C.R. 679 (S.C.C.).

88 Factum for EGALE in Same Sex Marriage Reference, at paras. 26-41, online: https://aspercentre.ca/wp-content/uploads/2017/06/Reference-re-Same-Sex-Intervener-EGALECanada-Inc-et-al.pdf.

89 Canada v. PHS Community Service, [2011] S.C.J. No. 44, 2011 SCC 44 (S.C.C.).

90 Factum for Withler, at para. 125, online: https://aspercentre.ca/wp-content/uploads/2017/06/Appellant-in-Withler.compressed.1-2.pdf.

91 Factum for Withler, at paras. 126-127, online: https://aspercentre.ca/wp-content/uploads/2017/06/Appellant-in-Withler.compressed.1-2.pdf.

92 Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [1996] B.C.J. No. 670, 134 D.L.R.(4th) 293 (B.C.S.C.). For additional discussion See Kent Roach Constitutional Remedies in Canada, 2d ed. at 13.1020-13.1090.

93 Factum for Little Sisters in Little Sisters I, at para. 17, online: https://bccla.org/wpcontent/uploads/2012/04/1999-BCCLA-Argument-Little-Sisters.pdf.

94 Factum for Little Sisters in Little Sisters I, online: https://bccla.org/wp-content/uploads/ 2012/04/1999-BCCLA-Argument-Little-Sisters.pdf, at para. 26.

95 Little Sister Book and Art Emporium v. Canada (Minister of Justice), [2000] S.C.J. No. 66, at para. 156, [2000] 2 S.C.R. 1120 (S.C.C.). Justice Binnie for the majority stressed that six years had passed since the trial and the findings in the judgment "should provide the appellants with a solid platform from which to launch any further action in the Supreme Court of British Columbia should they consider that further action is necessary".

96 Little Sisters v. Canada, [2000] S.C.J. No. 66, at paras. 257, 261, 2000 SCC 69 (S.C.C.). https://doi.org/10.1136/jnnp.69.2.257

97 Kingstreet Investments Ltd. v. New Brunswick (Finance), [2007] S.C.J. No. 1, 2007 SCC 1 (S.C.C.).

98 Factum of Consumers Association of Canada in Kingstreet Investments, at para. 70.

99 Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] S.C.J. No. 63, [2003] 3 S.C.R. 3 (S.C.C.).

100 For my arguments that remedial exceptionalism for s. 23 of the Charter cannot be justified see Kent Roach "Principled versus Rule or Text-Based Remedial Discretion" (2022); N.J.C.L. [forthcoming].

101 Little Sisters Book and Art Emporium v. Commissioner of Customs and Revenue, [2004] B.C.J. No. 1241, at para. 43, 2004 BCSC 823 (B.C.S.C.).

102 Little Sisters Book and Art Emporium v. Canada (Justice), [2007] S.C.J. No. 2, 2007 SCC 2 (S.C.C.).

103 Factum for Little Sisters in Little Sisters II, at para. 74. This echoed Iacobucci J.'s dissent in the first Little Sisters case. Little Sister Book and Art Emporium v. Canada (Minister of Justice), [2000] S.C.J. No. 66, at para. 253, [2000] 2 S.C.R. 1120 (S.C.C.).

104 Factum for Little Sisters in Little Sisters II, at para. 122.

105 Canada (Justice) v. Khadr, [2008] S.C.J. No. 28, 2008 SCC 28 (S.C.C.).

106 Canada (Prime Minister) v. Khadr, [2010] S.C.J. No. 3, 2010 SCC 3 (S.C.C.).

107 British Columbia Civil Liberties Association Factum in Khadr II, at para. 24, online: https://aspercentre.ca/wp-content/uploads/2017/06/2010-SCC-3-BCCLA-Factum.pdf.

108 United States of American v. Burns, [2001] S.C.J. No. 8, 2001 SCC 7 (S.C.C.).

109 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 3, 2002 SCC 1 (S.C.C.).

110 Joe argued in Khadr I: "Canada can also be constitutionally complicit if it cooperated with . . . human rights abuses of a foreign government. In this appeal, Canada has both co-operated with, and profited from, the abuse of the Respondent's human rights at the hands of the American government." Factum of British Columbia Civil Liberties Assn. in Khadr II, at para. 12, online: https://aspercentre.ca/wp-content/uploads/2017/06/Khadr-BCCLA.pdf.

111 PHS Community Services v. Canada, [2011] S.C.J. No. 44, 2011 SCC 44 (S.C.C.).

112 PHS Community Services v. Canada, [2011] S.C.J. No. 44, at para. 148, 2011 SCC 44 (S.C.C.).

113 Factum of Insite/ PHS Community Services, at para. 6, online: https://www.scc-csc. ca/WebDocuments-DocumentsWeb/33556/FM030_Respondents_PHS-Community-ServicesSociety-et-al.pdf.

114 British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2019] B.C.J. No. 8, 2019 BCCA 5 (B.C.C.A.); British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2019] B.C.J. No. 896, 2019 BCCA 177 (B.C.C.A.). On Joe's concerns that the full range of s. 24(1) remedies might not be available in other public interest standing cases see Allison Latimer and Benjamin Berger "A Plumber with Words" in this volume. The additional remedies added in this case were not ordered under s. 24(1) and did not amount to an enforceable injunction. Nevertheless, they resemble what I have described as a "declaration plus" where the court issues general declarations but retains jurisdiction. Kent Roach Remedies for Human Rights Violations (Cambridge: Cambridge University Press, 2021), at 384-95.

115 Factum of the David Asper Centre in Henry v. British Columbia, at para. 2, online: https://aspercentre.ca/wp-content/uploads/2017/06/FM010_Appellant_Ivan-William-MervinHenry.pdf [emphasis in original].

116 Joe, however, successfully argued for the Consumers Association of Canada in Kingstreet Investments that courts should not give governments immunity from having to return unconstitutional taxes to the taxpayer. He acknowledged that governments could enact legislation to recoup the money paid under unconstitutional taxes. After a scholarly and sophisticated discussion of the roles of courts and legislatures, Joe explained: "the 'ballot box' remedy is rendered ineffective if a government avoids legislating (or fails to legislate clearly) and instead imposes on the courts to enact its preferred rule. This would be to side-step the democratic process of debate and deliberation that occurs in the representative houses, and thus to deprive the citizenry of the benefits of the process." Factum of the Consumers Association of Canada in Kingstreet Investments, at para. 11.

117 Henry v. British Columbia (Attorney General), [2015] S.C.J. No. 24, at para. 93, 2015 SCC 24 (S.C.C.).

118 Henry v. British Columbia (Attorney General), [2016] B.C.J. No. 1160, 2016 BCSC 1038 (B.C.S.C.).

119 Factum of the David Asper Centre in Henry v. British Columbia, at para. 4.