Cameron Miranda
Canada's legal system upholds individual rights and freedoms, including liberty and equality, and ensures that society is orderly. It applies the same law to everyone, including the police, governments, and public officials. The Canadian courts have adopted a liberal approach to statutory and constitutional interpretation. Under Section 52(1) of the Constitution Act, 1982, courts may review all matters of law. Any person with legal standing may make an application to the court to declare any provincial or federal law unconstitutional. A facial challenge claims that a statute is unconstitutional at all times and under all circumstances, while an as-applied challenge alleges that a statute or regulation is unconstitutional in a specific context.
| Characteristics | Values |
|---|---|
| Who can challenge a law? | Any person with legal standing may make an application to the court to challenge a law. |
| A party who is directly affected by the law that purports to be unconstitutional has standing as of right. | |
| Rights holders may challenge any law that will limit their rights. | |
| Those who are not protected by a right but are nonetheless prosecuted by that law may challenge it. | |
| Public interest groups may also gain standing if they satisfy the requirements of the Borowski test. | |
| When to challenge a law | A facial challenge can be filed before a statute has taken effect. |
| An as-applied challenge can be made after a statute has taken effect. | |
| What type of challenge to make | A facial challenge claims that a statute is unconstitutional at all times and under all circumstances. |
| An as-applied challenge alleges that a statute or regulation is unconstitutional in a specific context. | |
| Facial challenges are common in claims alleging violations of First Amendment rights. | |
| As-applied challenges are favored by the Supreme Court as they provide a narrower remedy that fully protects the litigants. | |
| How to challenge a law | Notice must be given to the Attorney General of Canada. |
| If the provision is within provincial legislation, notice must be given to the Attorney General of the province. | |
| 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. | |
| Why challenge a law | To uphold individual rights and freedoms, such as liberty and equality. |
| To resolve disputes peacefully. | |
| To uphold social order and ensure a safe and peaceful society. |
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What You'll Learn
Facial challenges
In a facial challenge, a plaintiff claims that a statute is unconstitutional at all times and under all circumstances. The desired outcome is a court declaration of "facial invalidity" or "facial invalidity." The Supreme Court has outlined two scenarios in which a facial challenge may be successful:
- "No set of circumstances exists under which [the statute] would be valid."
- "The statute lacks any 'plainly legitimate sweep.'"
However, facial challenges are considered disfavoured by the Supreme Court due to their broader scope and potential to invalidate entire pieces of legislation. They are generally viewed as a premature interpretation of statutes based on limited facts and may threaten the democratic process by hindering the implementation of laws reflecting the will of the people. As such, the Supreme Court has expressed a preference for as-applied challenges, which offer a narrower remedy that fully protects the litigants without affecting non-parties.
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As-applied challenges
In Canada, any person with legal standing may challenge the constitutionality of a provision in the Criminal Code. This involves giving notice to the Attorney General of Canada and, if the provision is within provincial legislation, the Attorney General of the province must also be notified.
An as-applied challenge is a type of lawsuit that contests the constitutionality of a statute or regulation in a specific context. In an as-applied challenge, the plaintiff does not argue that the entire statute is unconstitutional but rather that it is being applied in an unconstitutional manner. The outcome of such a challenge is a ruling that narrows a statute's effect, as opposed to a facial challenge, which could result in the invalidation of an entire statute.
The Supreme Court has expressed a preference for as-applied challenges, stating that it favours "a narrower remedy" that could "fully protect the litigants". This type of challenge can be used to argue that a law, rule, regulation, or policy is unconstitutional as applied to expressive activities, as seen in First Amendment cases.
In Thomas v. Chicago Park Dist. (2002), the Supreme Court rejected a facial challenge to several park-permitting rules but left open the possibility of revisiting the matter in an as-applied challenge if a pattern of unlawful favouritism appeared. Similarly, in Los Angeles Police Dept. v. United Reporting Publishing Corp. (1999), the Court heard a case where the majority opinion characterized the challenge as facial, while the dissent disagreed, arguing that it was an as-applied challenge.
It is important to note that the distinction between facial and as-applied challenges is not always clear-cut, and there may be overlap or confusion between the two.
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Public law and private law
In Canada, laws generally fall under two classifications: public law or private law. Public law refers to the relationship between the state and the people within it and includes constitutional law, criminal law, and administrative law. Criminal law concerns crimes and their punishments. Constitutional law defines the relationship between governments (primarily federal and provincial) and the limits of governmental power over individuals. Administrative law concerns the actions and operations of the government. Other examples of public law include environmental law and tax law. For instance, if someone steals items from a store, the criminal act is a violation of public law. The crime of theft affects the entire community, not just the store owners, and is defined in public legislation.
Private law, on the other hand, governs the relationship between individuals rather than between people and the state. Common-law unions, where two people live together in a conjugal relationship for at least a year, are an example of private law in Canada. Common-law couples have many of the same legal, parental, and financial rights and obligations as married couples.
In Canada, any person with legal standing may challenge a law by making an application to the court to declare any provincial or federal law unconstitutional and of no force or effect. A party who is directly affected by the law that is alleged to be unconstitutional has standing as of right. Rights holders may challenge any law that will limit their rights. Even those who are not protected by a specific right but are nonetheless prosecuted by that law may challenge it. Public interest groups may also gain standing if they satisfy the requirements of the Borowski test, which include demonstrating that the law raises a serious constitutional issue and that there is a genuine interest from the group in the matter.
When challenging the constitutionality of a provision in the Criminal Code, notice must be given to the Attorney General of Canada and, if the provision is within provincial legislation, to the Attorney General of the province. The courts have broad competence under the Constitution Act of 1982 to review all matters of law, including constitutional issues that arise through disputes between parties or reference questions. The "dialogue principle" in Charter jurisprudence refers to the judicial review of legislation as a "dialogue" between legislatures and courts, with governments drafting legislation in response to court rulings.
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Interjurisdictional immunity
The doctrine is triggered when a province passes a law of general application, such as laws governing speed limits, which can often affect companies or industries exclusively governed by federal law. For example, if a Canada Post truck received a speeding ticket, the doctrine of interjurisdictional immunity could be invoked to attempt to stop Canada Post from having to pay the ticket as they are a federal undertaking immune from provincial law.
The principal test for determining whether there is a conflict between two laws is whether the provincial law "frustrates the purpose" of the federal law. The interjurisdictional immunity doctrine is activated even if there is no meeting of legislation or contradiction between federal and provincial statutes. It requires only that the provincial legislation significantly impacts federal things, persons, or undertakings.
The doctrine was first formulated to deal with the effects that provincial laws could have on federally incorporated companies. In John Deere v Wharton, provincial laws prohibiting companies not incorporated under the law of the enacting province from carrying on business without a prescribed license were held not to apply to federally incorporated companies.
Until 1966, undertakings that came within federal jurisdiction were held to be immune from otherwise valid provincial laws only if the laws had the effect of sterilizing, paralyzing, or impairing the federally authorized activity. However, the scope of the doctrine was expanded in Bell Canada (1966), where a provincial law prescribing a minimum wage was held not to apply when it was determined that a valid law could not apply as it "affects a vital part of the management and operation of the undertaking".
In 2007, the Supreme Court of Canada ruled in Canadian Western Bank that in the absence of outright impairment of the "vital or essential part", interjurisdictional immunity would not apply. This was subsequently affirmed in Lafarge. The Supreme Court reaffirmed the limited scope of the doctrine and stated its preference for pith and substance analysis and the doctrine of paramountcy.
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Constitutional challenges
In Canada, constitutional challenges are a way to contest the validity of a statute or government conduct. Any person with legal standing may make an application to the court to declare any provincial or federal law unconstitutional and of no force or effect. The Canadian legal system respects individual rights and ensures that its society is orderly. It applies the same law to everyone, including the police, governments, and public officials, all of whom must carry out their duties according to the law.
Constitutional issues come before the court through disputes between parties and reference questions. The court has the discretion to hear any constitutional issues as long as there is a sufficient legal component. The courts have a broad scope of competence under the authority of Section 52(1) of the Constitution Act, 1982, which allows them to review all matters of law.
A party who is directly affected by a law that is purported to be unconstitutional has standing as of right. Rights holders may challenge any law that will limit their rights. Even those who are not protected by a specific right but are nonetheless prosecuted by that law may challenge it. Public interest groups may also gain standing if they satisfy the requirements of the Borowski test, which include demonstrating that the law raises a serious constitutional issue and that there is no other reasonable and effective manner in which the issue may be brought before the court.
There are two main types of constitutional challenges: facial challenges and as-applied challenges. Facial challenges claim that a statute is unconstitutional at all times and under all circumstances, with the goal of having the court declare the law "facially invalid". In contrast, as-applied challenges allege that a statute or regulation is unconstitutional in a specific context. Plaintiffs in as-applied challenges are not arguing that the entire statute is unconstitutional but that it is being applied in an unconstitutional manner. The results of as-applied challenges tend to be narrower in scope, involving modifications to a statute's effect rather than its total invalidation.
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Frequently asked questions
Any person with legal standing may make an application to the court to declare any provincial or federal law unconstitutional. A party who is directly affected by the law that is being challenged has standing as of right. Rights holders may also challenge any law that will limit their rights.
There are two main types of challenges to a law: facial challenges and as-applied challenges. A facial challenge claims that a statute is unconstitutional at all times and under all circumstances. The goal is usually to have a court declare the law "facially invalid". An as-applied challenge, on the other hand, alleges that a statute or regulation is unconstitutional in a specific context. The plaintiff is not arguing that the entire statute is unconstitutional, but that it is being applied in an unconstitutional manner.
The courts have the authority to review all matters of law and decide on the constitutionality of a law. If a law is found to be unconstitutional, it can be declared invalid and have no force or effect. This means that the law will no longer be enforceable, and anyone affected by the law may be able to seek remedies or compensation.
