Constitutional Challenges to Legislation
- 1 Introduction
- 2 Procedure
- 3 Division of Powers
- 4 Section 7: Life, Liberty and Security of Person
- 5 Section 7: Principles of Fundamental Justice
- 6 Section 12: Cruel and Unusual Punishment
- 7 Section 1: Justifiable Limitation of Rights
- 8 Remedy for Unconstitutional Provisions
- 9 See Also
Section 52 of the Constitution Act, 1982 establishes the supremacy of the Constitution over all other laws in Canada:
Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Any laws that are found in violation of any part of the Constitution, including the Charter, will be of no force or effect.
Any person with legal standing may make an application to the court declare any provincial or federal law unconstitutional and of no force or effect.
Any challenge to federal legislation requires that notice be given to the Attorney General of Canada.
Arguments challenging the constitutionality of a statute should be heard only at the end of all the evidence.
It has been suggested that Courts should not entertain constitutional issues if it is not necessary to resolve the case.
There is a presumption of constitutionality for all legislation. When there are "two plausible characterizationagrees of a law, we should normally choose that which supports the law's constitutional validity".
Evidence in Challenging Legislation
It is accepted that to challenge legislation there should be both "adjudicative facts" and "legislative facts".
R v Iverson, 2009 ABPC 254 (CanLII), at para 8 - Defence must call "evidence to the contrary" before making charter argument
c.f. R v Tidlund, 2010 ABPC 29 (CanLII)
R v Kinnear, 2005 CanLII 21092 (ON CA) at para 59
Siemens v Manitoba (Attorney General), 2003 SCC 3 (CanLII),  1 SCR 6 at para 33 per Major J.
Siemens, ibid. at para 33
MacKay early 90s
Danson v Ontario (Attorney General),  2 SCR 1086, 1990 CanLII 93 (SCC)
Mackay v Manitoba,  2 SCR 357, 1989 CanLII 26 (SCC), - discusses evidential requirements and states "Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel".
Where the defence challenges the constitutionality of a provision in the Criminal Code, notice must be given to the Attorney General of Canada. Where the provision is within provincial legislation, Attorney General of the province must be given notice.
The provincial Judicature Act and/or the civil procedure rules may set out he te requirements of notice for a constitutional question.
Generally, notice must be given to both the Attorney General of Canada and the Attorney General of the province before the issue can be heard.
e.g. Nova Scotia Civil Procedure Rule 31.19 and Constitutional Questions Act, RSNS 1989, c.89
- R v Turnbull, 2016 NLCA 25 (CanLII)
Turnbull, ibid. at para 12
NF: see Judicature Act RSNL 1990, c. J-4 at s. 57(1)
Division of Powers
Legislation concerning criminal law must have three prerequisites:
- a valid criminal purpose,
- prohibition, and
R v Van Kessel Estate, 2013 BCCA 221 (CanLII) at para 24
Overlap and Incidental Effect
Legislation that overlaps with concerns of other levels of government is acceptable.
Section 7: Life, Liberty and Security of Person
Section 7 of the Charter protects an individual's autonomy and personal legal rights from actions of the government in Canada.
Under the heading of "Legal Rights", the section states:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
There are three distinct types of protection within the section:
- the right to life,
- the right to liberty, and
- the right to security of the person.
An applicant must establish that at least one of the three rights have been infringed upon as a result of the proceedings against him.
Denial of these rights only result in a breach if they breach "fundamental justice". A remedy can only be achieved if the breach cannot be saved under s. 1 of the Charter.(see Section 1, section below)
The prohibition on possession of marijuana does not engage the "life interest" where consumption could prevent people from being ill.
- Hitzig v Canada, 2003 CanLII 30796 (ON CA), (2003), 177 CCC (3d) 449 (Ont. C.A.)
The right to liberty protects an individual's freedom to act without physical restraint (i.e., imprisonment would be inconsistent with liberty unless it is consistent with fundamental justice). The court described it as "[touching] the core of what it means to be an autonomous human being blessed with dignity and independence in matters that can be characterized as fundamentally or inherently personal."
Any offence that creates a "real possibility of imprisonment" will be sufficient to engage the liberty interest.
The right to security of the person consists of rights to privacy of the body and its health and of the right protecting the "psychological integrity" of an individual. That is, the right protects against significant government-inflicted harm (stress) to the mental state of the individual.
Not every interference will amount to an "adverse impact on security of the person" under s. 7. There must be "serious" "psychological or physical" impact. 
Section 7: Principles of Fundamental Justice
Section 7 applies to all matters concerning the "state's conduct in the course of enforcing and securing compliance with the law". It can even apply to laws and state actions that are "entirely unrelated to adjudicative or administrative proceedings".
It is an open question whether s. 7 imposes positive obligations upon the state.
There must be "sufficient causal connection" between the law or state actions and the limitation on life, liberty or security of the person. The law need not be the only or "dominant" cause of the deprivation, however, it must be "real" and not "speculative".
The right to life is implicated anytime the state increases the risk of death.
Security of the Person
Section 1 of the Charter
Section 1 permits the state to justify infringement of the Charter where "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
This section has been said to have limited use when considering violations of s. 7 of the Charter. The most likely appropriate circumstances will be in cases of "natural disasters, the outbreak of war, epidemics and the like".
Gosselin v Quebec (Attorney General),  4 SCR 429, 2002 SCC 84 (CanLII), at para 77 to 78
New Brunswick (Minister of Health and Community Services) v. G. (J.),  3 SCR 46, 1999 CanLII 653 (SCC), at para 65
- Chaoulli v Quebec (A.G.), 2005 SCC 35 (CanLII) at paras 124, 194-199
Gosslin v Quebec (AG),  4 SCR 429 at para 82 to 83
- Bedford v Canada (A.G.),  3 SCR 1101, 2013 SCC 72 (CanLII), at para 76
- Bedford, ibid.
Carter v. Canada (Attorney General), 2015 SCC 5 at para 62
Chaoulli, supra at paras 112-124 and 200
Suresh v Canada (Minister of Citizenship and Immigration),  1 SCR 3, 2002 SCC 1 (CanLII) at para 78
Section 12: Cruel and Unusual Punishment
Section 1: Justifiable Limitation of Rights
Remedy for Unconstitutional Provisions
The remedy must be guided by the "principles of respect for the purposes and values of the Charter, and respect for the role of the legislature".
The remedy must be "the measures that will best vindicate the values expressed in the Charter and to provide the form of remedy to those whose rights have been violated that best achieves that objective".
Powers of Provincial Court Regarding Unconstitutional Legislation
A statutory court such as a provincial court only has a power of a finding of "statutory invalidity" and not a power to make a "declaration of statute invalidity" under s. 52 of the Constitution Act, 1982. As a result the finding has no authority over other cases.
Nociar v Her Majesty the Queen, 2008 CMAC 7 (CanLII), at para 34
Corbière v Canada (Minister of Indian and Northern Affairs),  2 SCR 203, 1999 CanLII 687 (SCC), at para 110
Nociar, supra at para 34
Corbière v Canada (Minister of Indian and Northern Affairs), supra at para 110
R v Lloyd, 2016 SCC 13 (CanLII) at paras 14-20