Charter Litigation
Author | Robert J. Sharpe; Kent Roach |
Pages | 126-148 |
126
CHAPTER 7
CHARTER
LITIGATION
Charter issues are decided in the ordinary course of litigation.1 Any cit-
izen whose rights are aected 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 adjudi-
cation 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 est ab-
lished practice in Canad ian law that if a judge can decide a case without
dealing with a constitutional issue, he or she should do so. Moreover,
because proceedings i n Canadian courts are strictly advers arial, a judge
will not ordinarily 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
costituzionale” in L’ordinamento costituzionale del Canad a (Torino: GGiappichelli
Editore, 1997).
Charter Litigat ion127
that may arise on the facts, it would be unusual for a judge to deal with
the issue if the parties do not raise it. It is for the parties to the dispute
to define the issues before the court. Similarly, the parties control the
presentation of evidence and argument.
A. INTERVENTION BY THE ATTORNEY
GENERAL AND PUBLIC-INTEREST GROUPS
Although constitutional cases generally follow the same procedural
path as other cases, there are some important exceptions and special
procedural rules to reflect the wide range of interests implicated and
the importance of any decision for the future. The first concerns the
representation of the public and other interests. A party 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 necessary to
defend the constitutionality of the law. This may seem to depart from
the adversarial system by allowing for non-party participation, but, in
fact, interventions by the attorney general reflect the underlying values
of the adversarial system. A constitutional case implicates the public
interest, and it is a basic tenet of the adversarial system that rights
should not be aected without aording the rights-holder a hearing.
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 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 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 typically 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.
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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