Criminal Law Notebook

Constitutional Challenges to Legislation

This page was last substantively updated or reviewed August 2021. (Rev. # 95758)

Introduction

See also: Charter Remedies

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.

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."[1]

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.[2] 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."[3]

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.[4] 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.[5] 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.[6] The reason is that the "issue" is the "nature of the law" and not the status of the accused.[7] 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.[8]

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."[9]

  1. ↑ Cunningham v Canada, 1993 CanLII 139 (SCC), [1993] 2 SCR 143, per McLachlin J (7:0) at 151
  2. ↑ Canada (Attorney General) v. Utah, 2020 FCA 224 (CanLII) per Strata JA, at para 28
  3. ↑ Hislop v Canada (Attorney General), 2003 CanLII 37481 (ON SC), 234 DLR (4th) 465, per Ellen Macdonald J, at para 17 citing West Virginia Bd v Barnette, 319 U.S. 624 (1943), Hisop appealed on other grounds at 2009 ONCA 354 (CanLII)
  4. ↑ R v Drumonde, 2019 ONSC 1005 (CanLII), per Schreck J, at para 39
    R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, per Lamer J, at p. 282 (“[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority”)
    See also R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachlin CJ and Charron J, at para 84
    Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 SCR 3, at para 21
  5. ↑ R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, per McLachlin CJ, at para 51 ("This Court has consistently held that a challenge to a law under s. 52 of the Constitution Act, 1982 does not require that the impugned provision contravene the rights of the claimant")
    R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), [1985] 1 SCR 295, per Dickson J at p. 314
    R v Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30
    R v Wholesale Travel Group Inc, 1991 CanLII 39 (SCC), [1991] 3 SCR 154, per Lamer CJ
    R v Heywood, 1994 CanLII 34 (SCC), [1994] 3 SCR 761, per Cory J
    R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, per McLachlin and Iacobucci JJ
    R v Ferguson, 2008 SCC 6 (CanLII), [2008] 1 SCR 96, per McLachlin CJ, at paras 58 to 66
  6. ↑ Nur, supra, at para 51
    Ferguson, supra, at para 59
  7. ↑ Big M, supra at p. 314
    Nur, supra, at para 51
  8. ↑ Nur, supra, at para 51
  9. ↑ Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer & Baker v Canada (Attorney General); R v Fink, 2002 SCC 61 (CanLII), [2002] 3 SCR 209, per Arbour J

Procedure

Arguments challenging the constitutionality of a statute should be heard only at the end of all the evidence.[1]

It has been suggested that Courts should not entertain constitutional issues if it is not necessary to resolve the case.[2]

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.[3]

Presumption

There is a presumption of constitutionality for all legislation.[4] When there are "two plausible characterization agrees of a law, we should normally choose that which supports the law's constitutional validity."[5]

Evidence in Challenging Legislation

It is accepted that to challenge legislation there should be both "adjudicative facts" and "legislative facts."[6]

  1. ↑ R v Iverson, 2009 ABPC 254 (CanLII), per Sully J, at para 8 - Defence must call "evidence to the contrary" before making charter argument
    cf. R v Tidlund, 2010 ABPC 29 (CanLII), 486 AR 370, per Fradsham J
  2. ↑ R v Kinnear, 2005 CanLII 21092 (ON CA), 198 CCC (3d) 232, per Doherty JA, at para 59
  3. ↑ R v Boutilier, 2016 BCCA 24 (CanLII), 332 CCC (3d) 315, per Neilsen JA, at para 56 ("Because jurisdiction over criminal law and procedure is within the exclusive jurisdiction of the federal Parliament under s. 91(27) of the Constitution Act, 1867, a provincial statute like the Court of Appeal Act is not applicable in ordinary criminal proceedings. An application for a declaration that a provision of the Criminal Code is unconstitutional, however, is not an ordinary criminal proceeding.")
    R v Ndhlovu, 2018 ABCA 260 (CanLII), per curiam, at para 7
    R v White, 2008 ABCA 294 (CanLII), 236 CCC (3d) 204, per Slatter JA, at para 22 ("The nature of the proceedings (and therefore the available appeal rights) is not governed by the subject matter of the target statute, but rather by the substantive nature of the proceedings and the order granted. If the proceedings are essentially related to the guilt or innocence of the accused, or some issue collateral to that (such as bail, or a publication ban in a particular case), then the proceedings are governed by the appeal and other procedures in the Criminal Code. But if the proceedings are directed at the constitutionality of the statute, they are civil, even if the challenge arises in a criminal context.")
  4. ↑ Siemens v Manitoba (Attorney General), 2003 SCC 3 (CanLII), [2003] 1 SCR 6, per Major J, at para 33
  5. ↑ Siemens, ibid., at para 33
  6. ↑ MacKay early 90s
    Danson v Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 SCR 1086, per Sopinka J
    Mackay v Manitoba, 1989 CanLII 26 (SCC), [1989] 2 SCR 357, per Cory J - discusses evidential requirements and states "Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel."

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.[1]

The provincial Judicature Act and/or the civil procedure rules may set out he te requirements of notice for a constitutional question.[2]

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.[3]

  1. ↑ e.g. Nova Scotia Civil Procedure Rule 31.19 and Constitutional Questions Act, RSNS 1989, c.89
  2. ↑ R v Turnbull, 2016 NLCA 25 (CanLII), per Rowe JA
  3. ↑ 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:[1]

  • a valid criminal purpose,
  • prohibition, and
  • penalty
  1. ↑ R v Van Kessel Estate, 2013 BCCA 221 (CanLII), per Donald JA, at para 24

Overlap and Incidental Effect

Legislation that overlaps with concerns of other levels of government is acceptable.[1]

  1. ↑ General Motors of Canada Ltd. v City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 SCR 641, per Dickson CJ, at p. 669 ("overlap of legislation is to be expected and accommodated in a federal state")
    Reference re Firearms Act, 2000 SCC 31 (CanLII), [2000] 1 SCR 783, per McLachlin CJ

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." [1]

The right protects values of "self-fulfilment, finding the truth through the open exchange of ideas, and the political discourse fundamental to democracy."[2]

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."[3]

Types of Expression and Activities

The right is not limited to protecting the author. Even possession of expressive materials is protected.[4]

Considerations

A restriction of a right of expression must be "subjected to the most careful scrutiny."[5] The right must be construed using a "large and liberal" interpretation.[6]


  1. ↑ Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927
    R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, at para 23
  2. ↑ Sharpe, ibid., at para 23
    Irwin Toy at p.976
    Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 SCR 712 at p. 765 (SCR)
  3. ↑ Irwin Toys
  4. ↑ Sharpe, supra, at para 25
  5. ↑ Sharpe, supra, at para 22
  6. ↑ R v Keegstra, 1990 CanLII 24 (SCC), [1990] 3 SCR 697

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."[1] It can even apply to laws and state actions that are "entirely unrelated to adjudicative or administrative proceedings."[2]

It is an open question whether s. 7 imposes positive obligations upon the state.[3]

Three Types

There are three distinct types of protection within the section:[4]

  • 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.[5]

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."[6]

Causation

There must be "sufficient causal connection" between the law or state actions and the limitation on life, liberty or security of the person.[7] The law need not be the only or "dominant" cause of the deprivation, however, it must be "real" and not "speculative."[8]


  1. ↑ Gosselin v Quebec (Attorney General), 2002 SCC 84 (CanLII), [2002] 4 SCR 429, per McLachlin CJ, at paras 77 to 78
    New Brunswick (Minister of Health and Community Services) v G(J), 1999 CanLII 653 (SCC), [1999] 3 SCR 46, per Lamer CJ, at para 65
  2. ↑ Chaoulli v Quebec (A.G.), 2005 SCC 35 (CanLII), [2005] 1 SCR 791{, per Deschamps J, at paras 124, 194 to 199
  3. ↑ Gosselin v Quebec (AG), 2002 SCC 84 (CanLII), [2002] 4 SCR 429, per McLachlin CJ, at paras 82 to 83
  4. ↑ R v Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30, at p. 52
  5. ↑ R v Beare, 1988 CanLII 126 (SCC), [1988] 2 SCR 387, [1987] SCJ No 92, per La Forest J, at para 28
    Reference re Motor Vehicle Act (British Columbia) s 94(2), 1985 CanLII 81 (SCC), [1985] 2 SCR 486, [1985] SCJ No 73, per Lamer J, at para 30
  6. ↑ Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), [2002] 1 SCR 3, per curiam, at para 78
  7. ↑ Bedford v Canada (A.G.), 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, per McLachlin CJ, at para 76
  8. ↑ Bedford, ibid.

"Everyone"

In the section, "everyone" refers to all people within Canada, including non-citizens.[1] However, it does not apply to corporate entities.[2]

  1. ↑ Singh v Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 SCR 177
    Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), [2002] 1 SCR 3, per curiam
  2. ↑ Irwin toy ltd. v Quebec (Attorney general), 1989 CanLII 87 (SCC), [1989] 1 SCR 927, per Dickson CJ, Lamer and Wilson JJ

Life Interests

The prohibition on possession of marijuana does not engage the "life interest" where consumption could prevent people from being ill.[1]

The right to life is implicated anytime the state increases the risk of death.[2]

  1. ↑ Hitzig v Canada, 2003 CanLII 30796 (ON CA), 177 CCC (3d) 449, per curiam
  2. ↑ Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, per curiam, at para 62
    Chaoulli, supra, at paras 112 to 124 and 200

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."[1]

Any offence that creates a "real possibility of imprisonment" will be sufficient to engage the liberty interest.[2]

  1. ↑ R v Clay, 2003 SCC 75 (CanLII), [2003] 3 SCR 735, per Gonthier and Binnie JJ
  2. ↑ R v Zwicker, 2003 NSCA 140 (CanLII), 49 MVR (4th) 69, per Hamilton JA, leave denied [2004] SCCA No 54

Security Interests

The right to security of the person consists of rights to privacy of the body and its health[1] 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.[2]

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. [3]

  1. ↑ Hogg, Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, 981.
  2. ↑ Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 SCR 307, per Bastarache J
  3. ↑ Chaoulli v Quebec, 2005 SCC 35 (CanLII), [2005] 1 SCR 791, per Deschamps J, at para 123

Section 7: Principles of Fundamental Justice

Section 12: Cruel and Unusual Punishment

See also: Cruel and Unusual Punishment

Section 1: Justifiable Limitation of Rights

Remedy for Unconstitutional Provisions

See also: Charter Remedies

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."[1]

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."[2]

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.[3]

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."[4]

A ruling of invalidity is binding on the Crown and only altered by appeal.[5]


  1. ↑ Nociar v Her Majesty the Queen, 2008 CMAC 7 (CanLII), per Dawson J, at para 34
    Corbière v Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 SCR 203, per McLachlin and Bastarache JJ, at para 110
  2. ↑ Nociar, supra, at para 34
    Corbière v Canada (Minister of Indian and Northern Affairs), supra, at para 110
  3. ↑ R v Lloyd, 2016 SCC 13 (CanLII), [2016] 1 SCR 130, per McLachlin CJ, at paras 14 to 20
  4. ↑ R v Sarmales, 2017 ONSC 1869 (CanLII), 139 WCB (2d) 164, per R. Smith J, at para 20 ("...once a declaration is made by a judge with inherent jurisdiction, that the law contravenes the Constitution, the offending section ceases to exist and is of no force and effect.")
  5. ↑ Sarmales, ibid. at para 20

See Also

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