Charter Litigation

• Author: Hon. Robert J. Sharpe, Kent Roach
• Pages: 113-131

113

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 responsibility to a specialized court for the adjudi-

cation of constitutional disputes. The court th at has jurisdiction over

the dispute has, by vi rtue of that jurisdict ion, authority to decide the

constit utional is sue.

This method of dealing wit h 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 practice in Canadian law th at, 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

114

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 w ide range of interests implicated and the

importance of any decision for the future. The f‌irst concerns the rep-

resentation 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 — 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 part icipation, 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 adversar ial system that rights

should not be affected without affording the right-holder a hearing. The

intervention of the attorney general ensure s that the public interest will

be represented before the courts when the constitutionality of a statute

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 Whi le

the courts were initially cautious in this area,4 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

who have particular interests that are affected and who can assist the

court should be heard.

2 See BL Strayer, The Cana dian Constitution and the Cour ts: The Function and Scope

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

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

Bo ok, 19 89).

4 K Swan, “Intervent ion and Amicus Curiae Status in Char ter Litigation” in RJ

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