Charter litigation

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

Page 113

Charter issues are decided in the ordinary course of litigation.1Any citizen whose rights are affected is entitled to raise a constitutional issue in a civil proceeding or by way of defence to a criminal prosecution. Canadian law follows the Anglo-American legal tradition and does not assign particular responsibility to a specialized court for the adjudication of constitutional disputes. The court that has jurisdiction over the dispute has, by virtue of that jurisdiction, authority to decide the constitutional issue.

This method of dealing with constitutional cases has important implications for the manner in which constitutional issues are decided. It means that Charter issues will almost always arise in a fact-specific context and be decided in the course of a concrete dispute between two parties. The primary task of the court is to decide the case before it, not to pronounce at large upon the constitution or its meaning. It is an established practice in Canadian law that, if a judge can decide a case without dealing with a constitutional issue, he or she should do so. Moreover, because proceedings in Canadian courts are strictly adversarial, a judge will not ordinarily comment upon a constitutional issue unless one is raised by the parties. Even if there is believed to be a constitutional issue that may arise...

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