Charter Litigation

• Author: Robert J. Sharpe; Kent Roach
• Pages: 119-139

119

CHA PTER 7

CHARTER

LITIGATION

Charter issues are decided in the ordinar y course of litigation.1 Any cit-

izen whose rights are a ffected is entitled to raise a const itutional issue

in a civil proceeding or by way of defence to a cri minal prosecution.

Canadian law follows the Anglo-American legal tradition and does not

assign part icular responsibilit y to a specialized court for the adjudi-

cation of constitutional disputes. The court that has jurisdict ion over

the dispute has, by virtue of that jurisd iction, authority to decide the

constit utional is sue.

This method of dealing with constitutional cases h as important im-

plications for the manner in which constitutional issues are decided.

It means that Charte r issues will a lmost always arise in a fact-specif‌ic

context and be decided in the course of a concrete dispute between

two parties. The prim ary 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 pract ice 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 ra ised by the parties. Even if there is believed to be

a constitutional issue that may arise on the facts, it would be unusual

1 Both this c hapter and Chapter 17 draw freely on a contr ibution to a collection

on Canadia n constitutional law publi shed in Italian: RJ Shar pe, “Ordinamento

giudizi arrio e giustizi a costituzionale” in L’ordinamento costituzionale del Can a-

da (Torino: G Giappichelli Editore, 1997).

THE

CHARTER OF R IGHTS AND FREEDOM S

120

for a judge to deal with the issue if the parties do not raise it. It is for

the parties to t he dispute to def‌ine the issues before the court. Simila rly,

the parties control the presentation of evidence and argument.

A. INTERVENTION BY THE ATTORNEY

GENERAL AND PUBLIC-INTEREST GROUPS

While constitutional ca ses generally follow the same procedural path

as other cases, t here are some important exceptions and special pro-

cedural rules to ref‌lect the wide range of interests implicated and the

importance of any decision for the future. The f‌irst concern s the represen-

tation of the public and other interests. A party who challenges the

constitutional validity of a statute is required to give notice to the attorney

general — provinci al, federal, or bot h, as appropriate.2 The attorney gen-

eral has the right to inter vene in the proceeding and to present whatever

evidence or argument he or she deems necessar y to defend the consti-

tutionality of the law. This may seem to depar t from the adversarial sys-

tem by allowing for non-party par ticipation, but, in fact, interventions

by the attorney general ref‌lect the underlying values of the adversarial

system. A constitutional ca se implicates the public interest, and it is a

basic tenet of the adversaria l system that rights should not be affected

without affording the right-holder a hearing. The intervention of the

attorney general ensures that the public interest will be represented

before the courts when the constitutionality of a statute is attacked and

that any evidence required to satisfy section 1 to justify a pr ima facie

Charter violation will be brought before the court.3

A second important development in constitutional litigation, par-

ticularly at the level of the Supreme Court of Canada, is the generous

allowance for public-interest groups to appear as intervenors.4 While

the courts were initially cautious in this area,5 the discretion to per-

mit public-interest groups to intervene has been frequently exercised.

Once again, this is a ref‌lection of the fact that the decision of the court

on a constitutional matter will have broad public ramif‌ications. Those

2 See BL Strayer, The Cana dian Constitution and the Court s: The Function and Scope

of Judicial Revi ew, 3d ed (Toronto: Butterworths, 1988) at 73– 86.

3 Guindon v Canada, [2015] 3 SCR 3 at para 113.

4 PR Muldoon, Law of Interve ntion: Status and Practice (Aurora, ON: Can ada Law

Bo ok, 19 89).

5 K Swan, “Intervention an d Amicus Curiae Status in Charte r Litigation” in RJ

Sharpe, ed , Charter Litigation (Toronto: Butterworths, 1987).