Section 52(1) of the Constitution Act, 1982 – The supremacy clause


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.

Similar provisions

The Constitution contains three provisions that are relied upon to provide an appropriate remedy to findings of inconsistency with the Charter: section 52(1) of the Constitution Act, 1982 provides that a law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect; section 24(1) provides remedies against unconstitutional government action; and section 24(2) provides for the exclusion of evidence obtained in violation of the Charter.

The Canadian Bill of Rights does not include an identical provision, although section 2 is somewhat analogous. Similar provisions may be found in the following international instruments binding on Canada: article 2 of the International Covenant on Civil and Political Rights; article 2(1)c) of the Convention on the Elimination of All Forms of Racial Discrimination; article 2(f) of the Convention on the Elimination of All Forms of Discrimination Against Women; and article 4(1)b) of the Convention on the Rights of Persons with Disabilities.

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: section 2 and section 172(1) of the Constitution of the Republic of South Africa, 1996; article VI of the Constitution of the United States of America; article 25 of the American Convention on Human Rights. Note, by way of contrast, section 4 of the United Kingdom’s Human Rights Act (a non-constitutional document) in terms of the effects of a “declaration of incompatibility” with the European Convention on Human Rights.


Section 52(1) recognizes the primacy of the Constitution (Ontario Attorney General v. G., 2020 SCC 38 at paragraph 89). It imposes an obligation on bodies empowered to determine questions of law to do so in a manner consistent with the Constitution and to invalidate or treat as invalid a law to the extent of its inconsistency with the Constitution (Mossop v. Canada, [1993] 1 S.C.R. 554 at page 582; Nova Scotia (Workers Compensation Board) v. Martin, [2003] 2 S.C.R. 504 at paragraph 28).


1. Basic principles

Section 52(1) should be read in conjunction with section 24(1). Section 52(1) addresses laws that are inconsistent with the Constitution while the latter provides remedies for unconstitutional government action (R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 [a.k.a. “Dunedin”] at paragraph 14; R. v. Ferguson, supra at paragraphs 35, 61). Although section 52(1) states the legal result where there is conflict between a law and the Constitution – that the law is of no force or effect to the extent of the inconsistency – it does not explicitly provide courts with a grant of remedial jurisdiction. Rather, it is a court’s statutory or inherent jurisdiction that grounds the authority to issue a general declaration and to give full effect to the broad terms of s. 52(1) (G at paragraph 85).

The distinct functions of sections 52(1) and 24(1) also underpin the principle that remedies under section 52(1) should generally not be combined with individual section 24(1) remedies such as damages (Schachter v. Canada, [1992] 2 S.C.R. 679 at page 720; Guimond v. Quebec, [1996] 3 S.C.R. 347 at paragraph 19; Mackin v. New Brunswick, [2002] 1 S.C.R. 405 at paragraph 81; Vancouver (City) v. Ward, [2010] 2 S.C.R. 28). Despite statements to the contrary in some cases (see e.g., Schachtersupra, supra; R. v. Demers, [2004] 2 S.C.R. 489 at paragraphs 61-63), there is no “hard-and-fast rule” against combining section 24(1) and section 52(1) remedies (see G at paragraphs 141-42). There is, however, a general principle that section 24(1) should not be used to grant damages, or relief that would be tantamount to damages, in respect of the enactment of an unconstitutional law (see e.g., Mackin, supra at paragraphs 79-81; Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429 at paragraph 102). This rule is not absolute, however, as section 24(1) damages may be available if the state conduct under a law found to be invalid was “clearly wrong, in bad faith or an abuse of power” (Mackin, supra at paragraph 78, and Ward, supra at paragraph 39).

2. Preliminary considerations

(i) Standing to invoke the supremacy of the Charter in litigation

The general rule of standing under the Charter is that litigants may only allege infringement of their own rights or freedoms (Hy and Zel’s Inc. v. Ontario, [1993] 3 S.C.R. 675 at page 690; see also Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607). With respect to corporate litigants, this means that they cannot generally plead rights or freedoms that corporations do not possess (e.g., section 2(a) and section 7) (Irwin Toy v. Quebec, [1989] 1 S.C.R. 927 at pages 1002-04).

However, any accused, whether corporate or individual, may defend against a criminal charge on the basis that the applicable prohibition is unconstitutional even if the accused’s own Charter rights or freedoms are not at stake. The rationale is that no one shall be convicted under an unconstitutional law (Big M Drug Mart, [1985] 1 S.C.R. 295 at pages 313-14). Likewise, where a corporation is compelled before a tribunal as a defendant in a civil proceeding initiated by the state or a state agency, it may raise the Charter in its defence whether or not it enjoys the particular right or freedom in question (Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 at paragraph 40). The analysis will be different in considering criminal prohibitions that apply exclusively to corporations (R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 at pages 181-183, 255).

Where litigants’ rights or freedoms are not directly at stake, it may be possible to seek a determination of constitutional validity based on “public interest standing”. To qualify for public interest standing, the litigant must demonstrate that: (1) there is a serious issue as to the validity of the legislation or administrative action; (2) they have a genuine interest in the measure’s validity; and (3) that the litigation is a reasonable and effective way to bring the matter before the court (Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 S.C.R. 524; British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27). These factors must be applied in a “flexible and generous manner”, taking into account the underlying purposes of limiting standing as well as the purposes that justify granting standing. The underlying purposes of limiting standing are threefold: (i) efficiently allocating scarce judicial resources and screening out “busybody” litigants; (ii) ensuring that courts have the benefit of the contending points of view of those most directly affected by the issues; and (iii) ensuring that courts play their proper role within our democratic system of government. The purposes that justify granting standing are twofold: (i) giving effect to the principle of legality and (ii) ensuring access to the courts, or more broadly, access to justice (Council of Canadians with Disabilities, supra,at paragraphs 29-30 Downtown Eastside Sex Workers United Against Violence Society at paragraph 50). As a general rule, courts should not attach particular weight to any one purpose, principle or factor – including legality and access to justice – but should strive to “balance all of the purposes in light of the circumstances and in the ‘wise application of judicial discretion’” (Council of Canadians with Disabilities, supra, at paragraphs 31, 58-59). “All other relevant considerations being equal, a plaintiff with standing as of right will generally be preferred” (Downtown Eastside Sex Workers United Against Violence Society, supra, at paragraph 37).

(ii) Statutes of limitations

General statutes of limitation apply to bar claims for personal remedies under section 24(1) of the Charter. They do not, however, bar claims for remedies under section 52(1) of the Constitution Act, 1982, in respect of legislation that is alleged to be unconstitutional (Ravndahl v. Saskatchewan, [2009] 1 S.C.R. 181).

(iii) The Charter as interpretive aid

The Charter may be relied upon to aid in the interpretation of legislation even where that legislation is not directly challenged, assuming that the wording of the statutory provision is genuinely ambiguous (Symes v. Canada, [1993] 4 S.C.R. 695 at page 752; Bell ExpressVu v. Rex, [2002] 2 S.C.R. 559 at paragraph 62). In such cases, the Charter may assist in deciding as between two or more possible interpretations if one is most consistent with its values.  This contrasts with the typical application of the Charter to an impugned provision, which will include a formal Charter analysis and may include the application of section 1.

Where legislation is challenged as inconsistent with the Charter, the first step must be to interpret it properly: “If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted.” (R. v. Sharpe, [2001] 1 S.C.R. 45, at paragraph 33 (and cases cited therein); see also generally: Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610). In order for this interpretive rule to apply, however, the two readings must be equally plausible in accordance with the intentions of the statute — the Charter cannot be used to “create ambiguity where none exists” (Wilson v. British Columbia (Superintendent of Motor Vehicles), [2015] 3 S.C.R. 300 at paragraph 25; R. v. Clarke, [2014] 1 S.C.R. 612, at paragraph 1).

The Charter cannot be used as an interpretive aid so as to defeat the purpose of the legislation, give legislation an effect contrary to Parliament's intent or deny Parliament the full scope of its authority to justifiably limit Charter rights and freedoms pursuant to section 1 (Mossop, supra, at page 582; Willick v. Willick, [1994] 3 S.C.R. 670 at pages 679-80; Symes, supra, at page 752; Bell ExpressVu, supra, at paragraphs 64-66).

(iv) Other than legislation and regulations, what “law” must be consistent with the Charter?

The broad language of subsection 52(1) dictates that all law, including the common law, must be consistent with the Charter (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at paragraph 25). Accordingly, as the common law develops, it should do so in a manner consistent with the Charter (Salituro, [1991] 3 S.C.R. 654, at page 670; R. v. Mann, [2004] 3 S.C.R. 59 at paragraph 17; R. v. Clayton, [2007] 2 S.C.R. 725 at paragraph 21). Where a common law rule is inconsistent with the Charter, it should be modified if possible so as to comply, unless any such modification upsets the balance between the judicial and legislative sphere (R. v. Swain, [1991] 1 S.C.R. 933 at pages 978-79; Salituro, supra, at page 675; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at page 878; Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 at paragraph 91; R. v. Golden, [2001] 3 S.C.R. 679 at paragraph 86).

A binding policy of general application adopted by a government entity pursuant to a rule-making power may also be a “law” for the purposes of section 52(1). Where such a policy is unconstitutional, the appropriate remedy is not an individual remedy under section 24(1) of the Charter but a declaratory remedy under section 52(1) of the Constitution Act, 1982 (Greater Vancouver Transportation Authority v. Canadian Federation of Students - British Columbia Component, [2009] 2 S.C.R. 295 at paragraphs 87-90).

(v) Who has authority to entertain Charter claims?

The jurisdiction of superior courts to issue declaratory judgments on the constitutional validity of provincial and federal legislation is fundamental to Canada's federal system (Kourtessis v. Canada (Minister of National Revenue - M.N.R.), [1993] 2 S.C.R. 53 at paragraph 93; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at page 328).

When Charter claims are brought before inferior courts or administrative tribunals, the relevant question is whether the legislature intended the court or tribunal to have the power to interpret and apply the Charter (Cuddy Chicks v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 at pages 14-15). A tribunal will be presumed to have the power to interpret and apply the Charter in relation to a matter properly before it, including determining the validity of its enabling legislation, if the legislature has granted it the express or implicit authority to decide questions of law and Charter jurisdiction has not been clearly withheld (Martin, supra, at paragraph 36; R. v. Conway, [2010] 1 S.C.R. 765 at paragraph 77).

When an inferior tribunal finds legislation inconsistent with the Charter, the finding only applies to the matter before it. No formal declaration of invalidity can be made, the tribunal is entitled only to treat the unconstitutional law as if invalid for the purposes of discharging its statutory duty (if still possible), no judicial deference is afforded the decision, and it is not a binding precedent. Only superior courts have the power to formally invalidate legislation (Cuddy Chicks, supra, at page 17; Martin, supra, at paragraph 31).

3. What is the effect of finding that a law unjustifiably limits the Charter?

The language of s. 52(1) is mandatory. A court faced with a constitutional challenge to a law must determine to what extent it is unconstitutional and declare it to be so (G at paragraph 86). There is no discretion to permit unconstitutional laws to remain operative, subject to case-by-case remedies (Ferguson, supra, at paragraphs 35, 64-65; Greater Vancouver Transportation Authority, supra, at paragraph 87; R. v. Sullivan, 2022 SCC 19 at paragraph 57).

(i) Defining the extent of the inconsistency

When a court makes a finding of inconsistency with the Charter, it must first define the extent of the inconsistency. The nature and extent of the underlying Charter violation lays the foundation for the remedial analysis because the breadth of the remedy will reflect at least the extent of the breach (G, supra, at paragraph 108).

This helps to ensure that the remedy fully addresses the law’s constitutional defects while also serving the broader public interest in having government act in accordance with the Constitution (G at paragraph 109). On the other hand, it also serves the public interest in preserving the application of the constitutional aspects of the law (G at paragraph 111).

(ii) Determining the form and breadth of the declaration

The second step is to determine the form that the declaration should take (Schachter, supra, at page 695; G at paragraph 112). This part of the analysis was discussed extensively and revised to some extent in the G decision. It involves an exercise of ”principled remedial discretion” (G at paragraph 93), which is based on constitutional considerations drawn from the text of the Constitution and “the broader architecture of our constitutional order and the rule of law” (G at paragraph 158). The exercise of this discretion should be guided by – and transparently explained with reference to – four foundational principles (G at paragraphs 94, 158):

  1. Charter rights should be safeguarded through effective remedies.
  2. The public has an interest in the constitutional compliance of legislation.
  3. The public is entitled to the benefit of legislation.
  4. Courts and legislatures play different institutional roles.

To ensure the public has the benefit of enacted legislation, remedies of reading down, reading in, and severance – tailored to the breadth of the violation – should be employed when possible so that the constitutional aspects of legislation are preserved (G at paragraph 111). However, tailored remedies will “frequently not be appropriate” (G at paragraph 114) as they should only be granted where it can be fairly assumed that the legislature would have passed the law as amended by the declaration (G at paragraph 114). Relevant considerations include:

“Striking down” involves a finding of invalidity of the entire provision or law in question (e.g., Big M Drug Mart, supra, at pages 355-56; G at paragraphs 112, 114, 116). This is the remedy that applies where a tailored remedy is not appropriate. The expression “striking down” should be understood in a figurative manner, rendering the legislative text inoperative pursuant to s. 52(1) as opposed to altering or repealing the text in the literal sense (Sullivan at paragraph 54).

Reading down is when a court limits the reach of legislation by declaring it to be of no force and effect to a precisely defined extent. Reading down is an appropriate remedy when "the offending portion of a statute can be defined in a limited manner" (G at paragraph 113; Schachter at page 697).

Reading down involves shrinking the reach of a statute to remove its unconstitutional applications or effects without regard to the explicit statutory language that would be required to achieve that result (see e.g., R. v. Grant, [1993] 3 S.C.R. 223; Canada (Attorney General) v. Federation of Law Societies, [2015] 1 S.C.R. 401; R. v. Appulonappa, [2015] 3 S.C.R. 754 at paragraph 85).

In some cases, the Supreme Court appears to have employed the reading down technique without referring to it by name, by stipulating in its declaration that the law was of no force or effect “to the extent that” it applied in a particular context (see R. v. Smith, [2015] 2 S.C.R. 602 at paragraph 31) or simply by describing the situations in which the law does not apply (see R. v. K.R.J., [2016] 1 S.C.R. 906 at paragraph 115, explaining that the impugned provision “does not apply retrospectively”).

Reading in involves broadening the reach of the legislation by “declaring an implied limitation on its scope to be without force or effect” (G at paragraph 113). This remedy may be appropriate where the inconsistency between a law and the Constitution arises from what the statute wrongly excludes or omits (Schachter at page 698; G at paragraph 113). G uses the term “reading in” to describe the effect of a declaration at a conceptual rather than textual level. The question is not whether words would need to be added to the legislative text to achieve the result, as it was sometimes framed in earlier jurisprudence (see e.g., M. v. H., [1999] 2 S.C.R. 3 at paragraph 139). Rather, the question is whether the reach of the legislation is being expanded (reading in) rather than contracted (reading down).

Prior to the G decision, some cases indicated that the remedy of reading in should be used sparingly (see Trial Lawyers Association of British Columbia v. British Columbia (A. G.), [2014] 3 S.C.R. 31 at paragraph 66; Miron v. Trudel, [1995] 2 S.C.R. 418 at page 510). This caution appears to have been overtaken by G, which proposes the same general approach to all of the tailored remedies, and which recognizes that the considerations associated with reading in can equally be associated with severance, depending on the drafting of the provision in question (G at paragraph 113).

In cases involving benefits legislation that is invalidated for being underinclusive (e.g., under section 15 of the Charter), reading in may be more rare as there may be multiple ways in which the legislature could respond (see Schachter at pages 723-24). However, reading in was held to be appropriate in Miron v. Trudel, where legislative changes that post-dated the impugned legislation could be relied upon as evidence of what the legislature would have done if faced with the need to amend the impugned legislation to make it compliant with the Charter.

One of the relevant considerations in cases involving underinclusive legislation is the relative size of the groups affected. Where the group to be added is smaller than the group originally benefited, this may indicate that it is safe to assume that the legislature would have enacted the (extended) legislation (Schachter, supra, at pages 711-712).

“Severance” is when a court declares certain words to be of no force or effect, thereby achieving the same effects as reading down or reading in, depending on whether the severed portion serves to limit or broaden the legislation’s reach. Severance is appropriate where the offending portion is set out explicitly in the words of the legislation (G at paragraph 113; see also R. v. Morales, [1992] 3 S.C.R. 711 at pages 741-43).

Severance may further the objective of respecting the role of the legislature by leaving in force those elements of the legislation that do not offend the Constitution. On the other hand, where the remaining portion is inextricably bound up with the offending part, severance may be more intrusive than simply striking down (Schachter, supra, at page 697).

Like “striking down”, the expression “severance” should be understood in a figurative manner, rendering the legislative text inoperative pursuant to s. 52(1) as opposed to altering or repealing the text in the literal sense (Sullivan at paragraph 54).

(iii) Suspending the effect of a section 52(1) declaration

The approach to suspensions was discussed at length and substantially revised in the G decision, overtaking much of the previous jurisprudence on this issue.

The power to suspend the effect of a declaration of invalidity is included in the power to declare legislation invalid (G at paragraph 121). This power reflects the distinction between declaring legislation unconstitutional and determining the practical and legal effects that flow from that declaration (G at paragraph 122).

There is a strong interest in declarations with immediate effect, which reflect the principles that Charter rights should be safeguarded through effective remedies and that the public has an interest in constitutionally compliant legislation (G at paragraphs 131-32; see also Carter v. Canada (Attorney General), [2016] 1 S.C.R. 13 at paragraph 2).

The government bears the onus of demonstrating that a compelling public interest supports a suspension. The specific interest and the manner in which an immediate declaration would endanger that interest must be identified and, where necessary, supported by evidence (G at paragraph 133). These compelling interests cannot be reduced to a closed list of categories, such as those that were outlined in Schachter (where an immediate declaration would pose a threat to the rule or law or to public safety, or in cases involving underinclusive benefits). Rather, the compelling interests capable of justifying a suspension will be related to a remedial principle grounded in the Constitution (G at paragraph 126). These may include the principles that the public is entitled to the benefit of legislation or that courts and legislatures play different institutional roles, depending on the circumstances. Allowing the legislature to fulfil its law-making role can be a relevant consideration in whether to grant a suspension, but only when the government demonstrates that an immediately effective declaration would significantly impair the ability to legislate (G at paragraph 129).

The benefit achieved (or harm avoided) by the suspension must then be transparently weighed against countervailing remedial principles. This includes considering factors such as the significance of the rights infringement, which will weigh more heavily when criminal jeopardy is at stake, and the potential that the suspension will create harm or give rise to legal uncertainty (G at paragraph 131). The principled balancing approach is intended to make the analysis more disciplined and stringent because any suspension must be specifically justified. The appropriate balance will result in suspensions “only in rare circumstances” (G at paragraph 132).

Although G makes it clear that the approach to determining whether a declaration should be suspended is a principled, rather than categorical one, it also acknowledges that the three categories of cases recognized in Schachter (threats to rule of law, threats to public safety and underinclusive benefits) reflect constitutionally grounded considerations, including recognizing the public’s interest in legislation passed for its benefit (G at paragraph 124). However, it also clarifies that a suspension will not be granted simply because one of the categories articulated in Schachter is involved (e.g., where a case engages public safety) (G at paragraph 132).

Cases pre-dating G may continue to be relevant to the extent any decision to grant a suspension can be explained with reference to the foundational remedial principles articulated in G. However, these cases should be treated with caution in light of G.

In R. v. Swain, [1991] 1 S.C.R. 933 at pages 1021-1022, the Court granted a suspension on the basis that an immediate declaration would have posed a risk to public safety by exposing the public to potentially dangerous persons. In Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at pages 752-753, 766-769, a suspension was granted because an immediate declaration would have posed a threat to the rule of law. In Schachter, the Court held that a suspension was appropriate because immediately striking down the underinclusive law would have deprived the current beneficiaries of a law, potentially without providing redress to the applicant (see also Martin at paragraph 119; Trociuk v. British Columbia (Attorney General), [2003] 1 S.C.R. 835 at paragraph 44). Suspensions have also been granted in cases where an immediate declaration would deprive the government of revenue that is needed for the administration of justice (Re Eurig Estate, [1998] 2 S.C.R. 565 at paragraph 44), unintentionally create vested rights (R. v. Guignard, [2002] 1 S.C.R. 472 at paragraph 32), or have the effect of extending rights that may not be constitutionally required (e.g., Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 at paragraph 66).

Prior to G, suspensions had typically been combined with the remedies of striking downand, in some cases, severance (see e.g., Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at paragraphs 118-9; U.F.C.W., Local 1518, v. KMart Canada Ltd., [1999] 2 S.C.R. 1083 at paragraph 79; see also Sharpe, supra, at paragraph 114). The analysis and decision in G, in which the Court combined a suspension with a reading down remedy,indicate that suspensions can be combined with any form of declaration.

When deciding whether to grant a suspension, a court must also determine its length. The government bears the onus of demonstrating the appropriate duration. There is no default length of time such as 12 months (G at paragraph 135). Where warranted, a suspension should be long enough to give the legislature the amount of time it requires to carry out its responsibility diligently and effectively “while recognizing that every additional day of rights violations will be a strong counterweight against giving the legislature more time” (G at paragraph 139).

The burden on an Attorney General who seeks an extension of a suspension of a declaration of constitutional invalidity is heavy — extraordinary circumstances must be shown (Carter (2016) at paragraph 2).

(iv) Exemptions from suspensions

Where a declaration of invalidity has been suspended, such that the unconstitutional law remains temporarily in force, courts sometimes grant individual relief, in the form of an exemption from the suspension, to successful litigants (see G at paragraph 145; Martin at paragraph 120; Guignard at paragraph 32; Nguyen v. Quebec (Education, Recreation and Sports), [2009] 3 S.C.R. 208 at paragraph 47; Swain at paragraph 156; Mackin at paragraph 88; Ref. re Remuneration of Judges of Prov. Court of PEI, [1998] 1 S.C.R. 3 at paragraph 20).

The authority to grant individual exemptions from suspensions flows from section 24(1) of the Charter (Schachter at 720; G at paragraphs 146-47).

Granting an individual remedy in conjunction with a suspended declaration will often be appropriate and just as it reflects the principle that rights should be safeguarded through effective remedies (G at paragraph 147; see also Mackin paragraph 20). It also recognizes that successful litigants are not in the same position as others subject to an unconstitutional law in that they have done the public interest a service by ensuring that an unconstitutional law is declared inoperative. Individual exemptions further the public interest by removing the disincentive that suspensions can cause to litigation in the public interest (G at paragraph 148).

Exemptions from suspensions will often be necessary to balance the interests of the litigant, the broader public, and the legislature (G at paragraph 152). There must be a compelling reason to deny the claimant an immediately effective remedy (G at paragraph 149). This may be the case in circumstances where granting an exemption would undermine the interest motivating the suspension in the first place (i.e., the different institutional roles of courts and legislatures and the public interest in the operation of the legislation) (G at paragraph 150). It may also be the case where practical considerations like judicial economy make it inappropriate to grant individual relief. This may be the case, for example, where a large group or class of claimants comes forward as it may not be practical or feasible to conduct the individual assessments necessary to grant them all individual exemptions (G at paragraph 151).

(v) Temporal considerations

Remedies for legislation that is inconsistent with the Constitution are shaped by the principles of constitutionalism, the rule of law, and the separation of powers. These principles give rise to strong but rebuttable presumptions that judicial declarations are retroactive and that legislation – including remedial legislation enacted to respond to a finding of unconstitutionality – is prospective (R. v. Albashir, 2021 SCC 48,at paragraph 34).

A s. 52(1) declaration will generally be both immediate and retroactive, such that lower courts are bound to apply the declaration in outstanding matters before them (Albashir at paragraph 38). Retroactive remedies that immediately apply to everybody who is still “in the system” maximize the protection and vindication of Charter rights, and give effect to the principle of constitutional supremacy (Albashir at paragraphs 31, 42). However, the principle that judicial declarations operate retroactively is not absolute (Hislop at paragraph 86). Competing doctrines such as res judicata, which prevents the reopening of settled matters due to later judicial pronouncements, and the de facto and qualified immunity doctrines, which preclude financial liability for government actions taken under laws that are later found unconstitutional, balance the generally retroactive nature of judicial remedies with the need for finality and stability (Albashir at paragraph 40).

Where, in finding a Charter violation, a court is effecting a substantial change in the law rather than merely applying existing law, it may be appropriate to issue a prospective remedy only (Hislop at paragraph 86). Whether it is appropriate or not depends on a consideration of several factors, including governments’ reliance on the pre-existing legal rule, governments’ good faith in responding to evolution in the law, fairness to the litigants and respect for the role of the legislature (Hislop at paragraph 100; Albashir at paragraph 45).

A suspended declaration of invalidity may provide another exception to the presumption of retroactivity. The rare circumstances and constitutional considerations that warrant a suspended declaration can justify an exception to the retroactive application of declarations where necessary to give effect to the purpose of the suspension (Albashir at paragraphs 43-46).

A court's decision to suspend a declaration does not alter the presumptively retroactive application of the declaration but merely changes when it comes into effect. The presumption of retroactivity persists, although it may be rebutted explicitly or by necessary implication (Albashir at paragraph 44).

 (vi) Ordinary rules of stare decisis apply

Superior courts are empowered to determine whether a provision is inconsistent with the Constitution in accordance with the hierarchy of laws in the constitutional order (Sullivan at paragraph 48). Like other questions of law, these determinations are subject to the ordinary rules of stare decisis (Sullivan at paragraphs 53-59).

Where a superior court determines that a law is inconsistent with the Constitution and declares the law, or some aspect of it, inoperable, the judicial determination binds future decision makers in accordance with the rules of stare decisis (Sullivan at paragraphs 54, 63).

In particular, a constitutional ruling by any court binds lower courts in the same jurisdiction through vertical stare decisis. Constitutional rulings by courts of coordinate jurisdiction within a province are subject to the rules of horizontal stare decisis. In particular, such rulings are binding and should be followed by courts of coordinate jurisdiction except in three narrow circumstances: (1) where the rationale of an earlier decision has been undermined by subsequent appellate decisions; (2) where the earlier decision was reached “through carelessness” or “by inadvertence” (per incuriam); or (3) where the earlier decision was not fully considered, such as where it was taken in exigent circumstances (Sullivan at paragraph 75). Although a section 52(1) declaration issued within one province may be persuasive on courts in other provinces, federalism prevents it from binding courts throughout the country (Sullivan at paragraph 62).

4. Stand-alone constitutional exemptions

In contrast to an exemption from a temporarily valid law, stand-alone constitutional exemptions “are to be avoided” (Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134 at paragraph 149). If a law produces unconstitutional effects, a remedy issued pursuant to section 52(1) renders the law inoperative  to the extent of the inconsistency, for all future cases, subject to the ordinary rules of stare decisis (Ferguson, supra, at paragraph 65; Sullivan at paragraphs 52-54). Taking a case-by-case approach to unconstitutional law (i.e., through the use of constitutional exemptions) would be inappropriate because it would: (1) disregard the remedial scheme of the Constitution, including the mandatory wording of section 52(1); (2) create uncertainty and undermine the rule of law; and (3) usurp Parliament’s role and responsibility (Ferguson, supra, at paragraphs 58-73; Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331 at paragraph 125). Although the Court has not expressly closed the door on stand-alone constitutional exemptions as a remedy for unconstitutional laws outside the section 12 context, this appears to be the practical implication of Ferguson, PHS and Carter. The door has expressly been closed on the use of constitutional exemptions to remedy section 12 violations arising from mandatory minimum penalties (Ferguson, supra).

The content is current up until 2022-07-31.