Charter Litigation

AuthorRobert J. Sharpe; Kent Roach
Charter issues are decided in the ordinar y course of litigation.1 Any cit-
izen whose rights are a ected 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 part icular responsibility to a specialized court for the adjudi-
cation of constitutional disputes. The court that has jurisdict ion over
the dispute has, by vi rtue of that jurisdiction, authority to decide the
constit utional is sue.
This method of dealing w ith constitutional case s has important
implications for the manner in which const itutional issues are decided.
It means that Charte r issues will almost always arise in a fact-specif‌ic
context and be decided in the course of a concrete dispute between t wo
parties. The primary task of the court is to decide t he case before it, not
to pronounce at large upon the Constitution or its meaning. It is an est ab-
lished practice in Canad ian law that if a judge can decide a case without
dealing with a const itutional issue, he or she should do so. Moreover,
because proceedings i n Canadian courts are strictly advers arial, a judge
will not ordinar ily comment upon a constitutional issue unless one is
raised by the par ties. Even if there is believed to be a constitutional i ssue
1 This chapter d raws freely on a contribution to a collec tion on Canadian const itu-
tional law publi shed in Italian: RJ Shar pe, “Ordinamento giudiziarrio e giustizia
costituz ionale” in L’ordinamento costituzionale del Canad a (Torino: GGiappichelli
Editore, 1997).
Charter Litigat ion 127
that may arise on the facts, it would be unusual for a judge to deal with
the issue if the par ties do not raise it. It is for the partie s to the dispute
to def‌ine the issues before the court. Sim ilarly, the parties control the
presentation of evidence and argument.
Although constitutional cas es generally follow the same procedural
path as other case s, there are some important exceptions and special
procedural rules to ref‌lect the w ide range of interests implicated and
the importance of any decision for the future. The f‌irst concern s the
representation of the public and other interests. A pa rty who challen-
ges the constitutional validity of a statute is required to give notice to
the attorney general — provincial, federal, or both, as appropriate.2 The
attorney general has the right to intervene in the proceeding and to
present whatever evidence or argument he or she deems necess ary to
defend the constitutionality of the law. This may seem to depart from
the adversarial system by allowing for non-party part icipation, but, in
fact, interventions by the attorney general ref‌lect the underlying values
of the adversarial s ystem. A constitutional case implicates the public
interest, and it is a basic tenet of the adversa rial system that rights
should not be aected without aording the rights-holder a hear ing.
The intervention of the attorney general ensures t hat the public interest
will be represented before the courts when the constitutionality of a
statute is attacked and th at any evidence required to sat isfy section 1 to
justify a pr ima facie Charter violation will be brought before the court.3
A second imp ortant development in constitutiona l litigation, par-
ticularly at the level of the Supreme Court of Canada, i s the generous
allowance for public-interest groups to appear as intervenors.4 Although
the courts were initially cautious in this area,5 the discretion to permit
public-interest groups to intervene has been frequently exercised. Char-
ter cases now ty pically involve a long list of public-interest intervenors.
For example, in the Trinity Western University v Law Society of Upper
2 See BL Strayer, The Canadi an Constitution and the Court s: The Function and Scope
of Judicial Revi ew, 3d ed (Toronto: Butterworths, 1988) at 73– 86.
3 GuindonvCanada, 2015 SCC 41, [2015] 3 SCR 3 at para 113.
4 PR Muldoon, Law of Interven tion: Status and Practice (Aurora, ON: Can ada Law
Bo ok, 19 89).
5 K Swan, “Intervention and A micus Curiae Status in Cha rter Litigation” in RJ
Sharpe, ed , Charter Litigation (Toronto: Butterworths, 1987).

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