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Remedies for Latent Constitutional Defects

"A Plumber with Words: Seeking Constitutional Responsibility and an End to the Little Sisters Problem", an article co-authored by Alison M. Latimer and Benjamin L. Berger, is forthcoming in the Supreme Court Law Review and available here.

The article was written in tribute to and memory of Joseph J. Arvay. The authors explore and address the “Little Sisters problem”: the tracing of endemic Charter wrongs to the “maladministration” of a law, rather than holding the law itself — and, with it, the legislator — responsible. This doctrinal move, which crystallized in the first Little Sisters case, is a structural impediment to Charter justice not only because it raises serious access to justice concerns, but because it badly disrupts and distorts lines of constitutional accountability. Having first defined the Little Sisters problem and its effects, the paper demonstrates how this problem can arise by reference to the solitary confinement litigation in BC, in which Joe was set to tackle this issue that so concerned him. Ultimately, the authors offer an argument that a sensitive reading of the Court’s decision in R v Boudreault suggests a significant circumscription of the Little Sisters problem, and that future courts should treat demonstrated and systemic rights-violative harms that arise from the maladministration of a statute as “latent constitutional defects” in the legislation itself, warranting a s. 52 remedy. Only this reading makes sense of the Boudreault decision, and only this reading adequately honours access to Charter justice, democratic accountability, and the rule of law.

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