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Canadian Constitution Law
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These are the notes that were written for the entire module - It covers the Charter and Indigenous law
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Canadian Constitutional Law RevisionWeek 1 Lecture 1
Judicial Review
Constitutional Challenge
- Appeal: Trial court came to the wrong conclusion because they interpreted facts incorrectly or
misinterpreted facts
o The court is being asked to consider the merits of the case – Examine the facts and apply
the law and see if they come to a different conclusion
- Judicial Review: Statute or provision under which someone has been charged was unconstitutional
o Maybe the governmental body behaved in a way that infringed someone’s constitutional
rights
o Examine the conduct of the government official or the statute under which the person is
charged to see if it is constitutional
- Appeal and Judicial Review application can be filed together but examined separately
Week 2 Lecture 1
Constitutional Judicial Review – Two grounds
- Federal Grounds – It has to be outside the enacting body’s jurisdiction
- Charter Grounds – someone brings forward a challenge because impugned legislation or
governmental action contravenes one or more enumerated rights under the Charter (2-25)
o Parties need to state which grounds for judicial review (Federal or Charter) but they
must also state a remedy
Declaration of invalidity
24(1) – Individual remedy for unlawful governmental action
24(2) – Disposal of evidence obtained unlawfully – In violation of the
Charter
- Three kinds of parties that have been recognized as having standing
o Attorney General – Province or Canada – Canada has inherent standing for a
challenge – Challenge on Federal or Provincial grounds
They can also seek an advisory opinion – Seek a reference from the
provincial superior court or the Supreme court of Canada
They can only apply for a declaration of invalidity for section 52
o Parties directly affected by the matter
Not corporations – The right has to be extended to corporations
• This would also apply if they were charged under a piece of
legislation – R v Big M. Drug Mart – This is a direct affect
• Section 2 – Freedom of religion doesn’t apply for corporations
because corporations can’t hold religious beliefs – The right doesn’t
extend to them
Denied a constitutionally protected right – Harmed by an unconstitutional
statute or due process rights
, Parties not involved in a dispute have to show that they have also been
affected
R v Edwards – Parties don’t always have standing if they are directly
affected – No reasonable expectation of privacy
o Public Interest standing – Vested public interest even if they were not directly
affected
R v Borowski – An activist was granted standing that didn’t allow
therapeutic abortions – not directly affected
• Genuine interest or personal stake in the validity of the legislation
• There has to be an issue of constitutional validity – Serious affects
• No effective way of bringing the issue to court
Truly v Quebec – A doctor and patient were granted standing that
prevented people from having private healthcare insurance
Can’t file for a remedy if filing under section 52 for invalidity
- Constitutional questions can also be brought to an appeal
o Parties in a legal dispute have standing as a matter of right
o They have to directly affected by the law
Division of Powers – Non-Overlapping jurisdiction
- Parties want the courts to review an act or statute to determine if it regulates a matter that
falls outside of their jurisdiction – Provisions that regulate something that falls within the
non-governmental enactor’s jurisdiction
,
, Challenging on Federal Grounds (Go in this order – Federal Grounds and then Charter Grounds) – You
need the following
- Invalid – In whole or in part that falls outside of the jurisdiction of the governmental
o Declared null and void
- Inapplicable – Effects or consequences that affect competing government’s jurisdiction
o Declared to be inapplicable to classes or matters that fall outside of the jurisdiction
of the enacting body’s jurisdiction
- Inoperative – A law regulates something that falls within the jurisdiction of both borders –
Federal and provincial
o The parties are asking who has the power to regulate that activity
o The court will decide where it is inoperative
- The courts might strike down provisions as opposed to the entire Act
- Reference re: Same Sex Marriage
o Legal Definition of Marriage (Federal) vs the Solemnization of Marriage (who can
perform the marriage – Applied to the provinces)
Pith and Substance
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