Charter Litigation

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 105-120

CHAP TER 7

CHARTER

LITIGATION

Charter issues a re decided in the ordinar y course of litigation.1 Any

citizen whose rights are affected is entitled to raise a constitutional is-

sue in a civil proceedi ng or by way of defence to a crimin al prosecution.

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

assign particular responsibility to a speci alized court for the adjudi-

cation of constitutional disputes. The court that has jurisdiction over

the dispute has, by v irtue of that jur isdiction, authority to dec ide the

constitutional issue.

This method of dealing w ith constitutional cases has i mportant im-

plications for the manner in which const itutional 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 dis pute between

two parties. The pri mary task of the court is to decide the ca se before

it, not to pronounce at large upon the constitution or its meaning. It

is an establi shed practice in Canadian law that, i f a judge can decide

a case without dealing with a constitutional issue, he or she should

do so. Moreover, because proceedings in Canadi an courts are str ictly

adversarial, a judge wi ll not ordinarily comment upon a constit utional

issue unless one is ra ised by the parties. Even if there is bel ieved to be a

1 Both thi s chapter and chapter 17 draw freely on a cont ribution to a collection

on Canadia n constitutional law publi shed in Italian, R.J. Shar pe, “Ordina-

mento giudizi arrio e giustiz ia costituzionale” in L’ordinamento costituzionale del

Canada (Torino, G. Giappichelli Editore, 1997).

105

the

charter of r ights and fr eedoms

106

constitutional iss ue that may ari se on the facts, it would be unusual for

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

parties to the d ispute to define the issues before the court. Simila rly,

the parties control the presentation of evidence and argument.

A. INTERVENTION BY THE AT TOR NEY

GENERAL AND PUBLICINTEREST GROUPS

While constitutional cases generally follow the same procedural path as

other cases, there a re some important exceptions and special procedural

rules to reflect the wide r ange of interests implicated and the importance

of any decision for the future. The first concerns the representation of

the public and other interests. A pa rty who challenges the constitutional

validity of a statute is requi red to give notice to the attorney general,

provincial, feder al, 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 adversar ial system by al-

lowing for non-party participat ion, but, in fact, interventions by the at-

torney general reflect the underlying values of t he adversarial system. A

constitutional cas e implicates the public interest and it is a basic tenet of

the adversarial system that rights should not be affected without afford-

ing 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 st atute is attacked.

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.3 While

the courts were initially cautious in th is area,4 the discretion to permit

public-interest groups to intervene has been frequently e xercised. 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 who

have particular interests th at are affected and who can assist the court

should be heard.

2 See B.L. Strayer, The Ca nadian Constitution a nd the Courts: The Function an d

Scope of Judicial R eview, 3d ed. (Toronto: Butterworths, 1988) at 73– 86.

3 P.R. Muldoon, Law of Intervention:Status and Practice (Aurora, ON: Canada La w

Book, 1989).

4 K. Swan, “Interve ntion and Amicus Curiae St atus in Charter Litigation” in R .J.

Sharpe, ed., Charter Litigation (Toronto: Butterworth s, 1987).