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 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 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: GGiappichelli

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 aected without aording 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.

3 GuindonvCanada,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).