Declarations of Invalidity: Section 52(1)

• Author: Matthew Asma/Matthew Gourlay
• Pages: 193-219

193

Declarations

of Invalidity:

Section ()

7

I. Introduction ............................................. 

II. Key Concepts in This Chapter ............................... 

III. Types of Constitutional Challenges That Typically Arise in

Criminal Cases ........................................... 

IV. Standing to Seek a Declaration of Invalidity .................... 

A. Challenges to Provisions That Determine Criminal Liability .... 

B. Challenges to Sentencing Provisions .................... 

C. Challenges to Evidence-Gathering Provisions ............. 

D. Challenges to Provisions Governing Trial Procedure ........ 

V. Individual Constitutional Exemptions Are Not Available .......... 

VI. Only Superior Courts Can Grant Declarations of Invalidity ........ 

VII. The Legal Eect of Declarations of Invalidity .................... 

VIII. No Remedy if Infringement Is Justied Under Section  .......... 

A. The Oakes Test ...................................... 

B. Bifurcating the Application ............................ 

IX. Striking Down Versus Reading Down/Reading In ................ 

X. Suspended Declarations of Invalidity .......................... 

XI. Individual Exemptions ..................................... 

XII. Procedure and Timing ..................................... 

XIII. Evidentiary Considerations .................................. 

© 2023 Emond Montgomery Publications. All Rights Reserved.

194Charter Remedies in Criminal Cases

I. Introduction

Section 52(1) of the Constitution Act, 1982 provides the constitutional mandate for a

court to refuse to apply a law, or part of a law, that is found to infringe a provision of

the Charter and not to pass the justificatory test in section1. As will be seen below,

while all criminal courts have jurisdiction to apply section52(1), only superior courts

have authority to issue declarations of invalidity.

When a law is determined to be unconstitutional, it is often sucient to simply

declare it to be of no force or eect. In other cases, a more nuanced remedial approach

is called for, which may entail “reading down,” “reading in,” or suspending the dec-

laration for a period of time to give Parliament the opportunity to enact a constitu-

tionally compliant replacement without creating a legal vacuum in the meantime. In

all cases, the court should employ a “principled discretion,” having regard to the

following overarching precepts:

A. Charter rights should be safeguarded through eective remedies.

B. The public has an interest in the constitutional compliance of legislation.

C. The public is entitled to the benefit of legislation.

D. Courts and legislatures play dierent institutional roles.1

In deciding whether to simply invalidate the legislation or craft a more tailored

remedy, the key question is whether it can be confidently said that the legislature

would have enacted the law as modified by the court. In most cases, the court will

simply invalidate the legislation to the extent of its inconsistency with the constitution

and leave it to the Parliament to re-legislate if it so chooses.

II. Key Concepts in This Chapter

• Colloquially, a declaration of invalidity “strikes down” a law to the extent of its

inconsistency with the Constitution, rendering it inoperative.

• Declarations of invalidity, which are issued pursuant to section52(1), are

therefore distinct from the personal remedies available under section24 of the

Charter.

1 Ontario (AG) v G, 2020 SCC 38 at para 94.

Box . The Constitution Act, , Section ()

() The Constitution of Canada is the supreme law of Canada, and

any law that is inconsistent with the provisions of the Constitution is, to the

extent of the inconsistency, of no force or eect.

© 2023 Emond Montgomery Publications. All Rights Reserved.