Contestations constitutionnelles de la législation

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Introduction

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.

– CONST, 1982

Any laws that are found in violation of any part of the Constitution, including the Charter, will be of no force or effect.

That being said, not every impact on rights are the subject of Charter litigation. The Charter does not "protect against insignificant or 'trivial' limitations of rights."

Purpose of Judicial Review of Law

Generally speaking the constitutional principle of the hierarchy of laws requires that courts are bound to follow statutory law. The exception to that rule is in Charter litigation.

The purpose of the Charter is to be "anti-majoritarian". It is to "withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s ... fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

Anti-Majoritarian

It has been observed that the purpose of the Charter is not to conform to the will of the majority but instead to protect individuals from it. That being said, there are various aspects of analysis that conform to public attitudes and norms:

• the "living tree" purposive approach to analysis of text,
• the normative analysis of s. 8,
• the consideration of "society's interests" in s. 24(2) analysis and
• the "standards of decency"/toleration of Canadian society test for s. 12.

Standing

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.

The rights of the specific claimant do not need to be impugned by the legislation in order to challenge it. As long as the claimant otherwise has standing, they may seek a "declaration of invalidity" if the law affects their case or one of a third party. The reason is that the "issue" is the "nature of the law" and not the status of the accused. Further, the dependency on "precise facts" may risk allowing "bad law" to remain valid indefinitely, violating the rule of law that says no one should be subject to invalid laws.

Notice

Any challenge to federal legislation requires that notice be given to the Attorney General of Canada.

Discretion of Crown Not a Defence

An unreasonable law that otherwise violates the Charter cannot be protected on the basis that the "prosecution will behave honourably."

Procedure

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.

Jurisdiction

A challenge to legislation will generally be treated, for the purpose of jurisdiction, as a civil matter. Consequently, there is greater jurisdiction to address breaches and s. 1 arguments.

Presumption

There is a presumption of constitutionality for all legislation. When there are "two plausible characterization agrees 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."

Notice

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.

Division of Powers

Legislation concerning criminal law must have three prerequisites:

• a valid criminal purpose,
• prohibition, and
• penalty

Overlap and Incidental Effect

Legislation that overlaps with concerns of other levels of government is acceptable.

Freedom of Expression

Purpose of Protection

The right to expression "ensure[s] that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream."

The right protects values of "self-fulfilment, finding the truth through the open exchange of ideas, and the political discourse fundamental to democracy."

Scope of Protection

A challenge to the freedom of expression must begin by looking at "whether the plaintiff's activity falls within the sphere of conduct protected by the guarantee."

Types of Expression and Activities

The right is not limited to protecting the author. Even possession of expressive materials is protected.

Considerations

A restriction of a right of expression must be "subjected to the most careful scrutiny." The right must be construed using a "large and liberal" interpretation.

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.

– CCRF

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.

Three Types

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)

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."

Causation

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."

"Everyone"

In the section, "everyone" refers to all people within Canada, including non-citizens. However, it does not apply to corporate entities.

Life Interests

The prohibition on possession of marijuana does not engage the "life interest" where consumption could prevent people from being ill.

The right to life is implicated anytime the state increases the risk of death.

Liberty Interests

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.

Security Interests

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

• Principles of Fundamental Justice

Section 1: Justifiable Limitation of Rights

• Justifiable Limitations on 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 achieve 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.

Effect of a Declaration of Invalidity

Once an inherent jurisdiction court makes a declaration of invalidity, the law contravenes the constitution and so the provision "ceases to exist and is of no force and effect."

A ruling of invalidity is binding on the Crown and only altered by appeal.

See Also

• Principles of Interpretation
• Offences Found to be Unconstitutional
• Maximum and Minimum Sentences
• Exclusion of Evidence Under Section 24(2) of the Charter