The Canadian Charter of Rights and Freedoms applies only to government actions, such as laws and policies, while human rights law applies to both private and public actions by any individual or organization, business or government body, if they engage in discrimination or harassment in one of the areas covered by human rights law.
The provincial/territorial human rights laws are passed by the provincial/territorial legislature and apply only in that province or territory. The Canadian Charter of Rights and Freedoms or the “Charter” is part of Canada’s Constitution and so applies throughout Canada.
Human rights law deal only with the right to be free from discrimination, while the Charter addresses a number of other human rights in addition to the right to equal treatment. Examples of these Charter rights are the right to vote, the guarantees of freedom of expression and religion and the right to be presumed innocent and to a fair process if you become involved in the criminal justice system.
Finally, in most cases, to enforce your Charter rights you go to court, while to enforce your rights under human rights law requires filing a complaint with the human rights commission or agency in your province or territory, or if a federal matter with the Canadian Human Rights Commission.
See “What are Human Rights in Canada?” for a more detailed discussion.
Australia is unusual among common law countries in not having a Constitutional Charter or Bill of Rights.
However, common law courts have power to provide significant protection of human rights principles including the rule of law, except where legislation specifically overrides this power.
Parliament presumed not to intend to limit fundamental rights
A well-established principle of statutory interpretation in Australian courts is that Parliament is presumed not to have intended to limit fundamental rights, unless it indicates this intention in clear terms.
In Coco v The Queen (1994) 179 CLR 427 at 437 the High Court restated this principle as follows:
The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.
Although the presumption - that legislation is intended to be consistent with fundamental rights - can be overridden by sufficiently clearly words, this presumption constitutes a substantial level of protection for what has been termed the "principle of legality".
InElectrolux Home Products Pty Ltd v Australian Workers' Union, Chief Justice Gleeson said:
The presumption is not merely a commonsense guide to what a parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.
This presumption includes fundamental rights recognised by the common law.
A similar presumption applies regarding consistency with international law obligations, inluding human rights treaty obligations, which came into force for Australia prior to the passage of the legislation concerned. As stated by High Court Chief Justice Mason and Justice Deane in the Teoh case:
Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.
Positive measures
Common law recognition of rights generally lacks the provisions contained in the human rights treaties for obligations on governments to take active measures to promote and protect human rights, in addition to refraining from acting inconsistently with rights.
Common law principles do contain concepts intended to provide protection regarding children and regarding people with disability in some areas, although in some instances this has led (because of relevant statutory provisions and lack of appropriate administrative and policy settings) to further breaches of human rights.
For example, a person with disability who is (in the interests of the right to a fair trial) found unfit to plead to criminal charges, may as a consequence be detained indefinitely, without the courts having found any capacity to remedy the obvious (and in some cases extremely severe) breaches of ICCPR Article 9 involved.
Personal liberty
Common law principles in this area clearly cover the issues dealt with by ICCPR Article 9, although Article 9 provides more detail in some respects.
As with the common law principle, Article 9 includes a principle of legality, in requiring that any restrictions be specifically provided by law.
It is less clear how far the concept of personal liberty extends to cover other related rights and freedoms under the ICCPR.
Privacy
The right to privacy under the ICCPR includes a right to private life (including intimate behaviour between consenting adults), as confirmed for example by the UN Human Rights Committee in Toonen v Australia. There does not appear to be any correspondingly broad common law presumption yet identified specifically to restrict the extent to which the legislature may intrude into private life.
Freedom of association
Freedom of association would appear to be included in common law, considering the views of the Full Federal Court in Dr Haneef's case. The present status at common law of rights to engage in trade union activity is less clear.
Slavery
Having regard to Lord Mansfield's landmark judgment in Somersett v Stewart (1772) 98 ER 499, freedom from slavery (if not necessarily freedom from forced labour) appears to be included among fundamental common law freedoms.
A right to personal liberty appears naturally to encompass freedom from slavery and trafficking in persons.
Common law rights and parliamentary scrutiny
Much of the debate in Australia about legislative recognition of human rights has been about how far human rights in Australia are protected by the role of Parliament and the common law.
The Commission regards the establishment of the Parliamentary Joint Committee on Human Rights in 2012, giving effect to the Human Rights (Parliamentary Scrutiny) Act 2011, as a very significant enhancement of the role of the Federal Parliament in human rights scrutiny.
The responsibilities of the Committee, and the requirements for legislation to be accompanied by Statements of Compatibility with human rights, are defined by reference to seven major human rights treaties to which Australia is a party:
- the International Covenant on Civil and Political Rights
- the International Covenant on Economic, Social and Cultural Rights
- the Convention on the Elimination of All Forms of Racial Discrimination
- the Convention on the Elimination of All Forms of Discrimination against Women
- the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- the Convention on the Rights of the Child
- the Convention on the Rights of Persons with Disabilities.
This presents the Committee with a wide-ranging mandate. Issues have also been raised within Parliament whether the mandate of the Committee should also include scrutiny of legislation regarding impact on rights from wider sources, and in particular common law rights.
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52.(1) 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 effect.
Similar provisions
The Constitution contains three provisions that are relied upon to provide an appropriate remedy to findings of inconsistency with the Charter: section 52(1) of the Constitution Act, 1982 provides that a law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect; section 24(1) provides remedies against unconstitutional government action; and section 24(2) provides for the exclusion of evidence obtained in violation of the Charter.
The Canadian Bill of Rights does not include an identical provision, although section 2 is somewhat analogous. Similar provisions may be found in the following international instruments binding on Canada: article 2 of the International Covenant on Civil and Political Rights; article 2(1)c) of the Convention on the Elimination of All Forms of Racial Discrimination; article 2(f) of the Convention on the Elimination of All Forms of Discrimination Against Women; and article 4(1)b) of the Convention on the Rights of Persons with Disabilities.
See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: section 2 and section 172(1) of the Constitution of the Republic of South Africa, 1996; article VI of the Constitution of the United States of America; article 25 of the American Convention on Human Rights. Note, by way of contrast, section 4 of the United Kingdom’s Human Rights Act (a non-constitutional document) in terms of the effects of a “declaration of incompatibility” with the European Convention on Human Rights.
Purpose
Section 52(1) recognizes the primacy of the Constitution (Ontario Attorney General v. G., 2020 SCC 38 at paragraph 89). It imposes an obligation on bodies empowered to determine questions of law to do so in a manner consistent with the Constitution and to invalidate or treat as invalid a law to the extent of its inconsistency with the Constitution (Mossop v. Canada, [1993] 1 S.C.R. 554 at page 582; Nova Scotia (Workers Compensation Board) v. Martin, [2003] 2 S.C.R. 504 at paragraph 28).
Analysis
1. Basic principles
Section 52(1) should be read in conjunction with section 24(1). Section 52(1) addresses laws that are inconsistent with the Constitution while the latter provides remedies for unconstitutional government action (R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 [a.k.a. “Dunedin”] at paragraph 14; R. v. Ferguson, supra at paragraphs 35, 61). Although section 52(1) states the legal result where there is conflict between a law and the Constitution – that the law is of no force or effect to the extent of the inconsistency – it does not explicitly provide courts with a grant of remedial jurisdiction. Rather, it is a court’s statutory or inherent jurisdiction that grounds the authority to issue a general declaration and to give full effect to the broad terms of s. 52(1) (G at paragraph 85).
The distinct functions of sections 52(1) and 24(1) also underpin the principle that remedies under section 52(1) should generally not be combined with individual section 24(1) remedies such as damages (Schachter v. Canada, [1992] 2 S.C.R. 679 at page 720; Guimond v. Quebec, [1996] 3 S.C.R. 347 at paragraph 19; Mackin v. New Brunswick, [2002] 1 S.C.R. 405 at paragraph 81; Vancouver (City) v. Ward, [2010] 2 S.C.R. 28). Despite statements to the contrary in some cases (see e.g., Schachtersupra; R. v. Demers, [2004] 2 S.C.R. 489 at paragraphs 61-63), there is no “hard-and-fast rule” against combining section 24(1) and section 52(1) remedies (see G at paragraphs 141-42). There is, however, a general principle that section 24(1) should not be used to grant damages, or relief that would be tantamount to damages, in respect of the enactment of an unconstitutional law (see e.g., Mackin, supra at paragraphs 79-81; Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429 at paragraph 102). This rule is not absolute, however, as section 24(1) damages may be available if the state conduct under a law found to be invalid was “clearly wrong, in bad faith or an abuse of power” (Mackin, supra at paragraph 78, and Ward, supra at paragraph 39).
2. Preliminary considerations
(i) Standing to invoke the supremacy of the Charter in litigation
The general rule of standing under the Charter is that litigants may only allege infringement of their own rights or freedoms (Hy and Zel’s Inc. v. Ontario, [1993] 3 S.C.R. 675 at page 690; see also Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607). With respect to corporate litigants, this means that they cannot generally plead rights or freedoms that corporations do not possess (e.g., section 2(a) and section 7) (Irwin Toy v. Quebec, [1989] 1 S.C.R. 927 at pages 1002-04).
However, any accused, whether corporate or individual, may defend against a criminal charge on the basis that the applicable prohibition is unconstitutional even if the accused’s own Charter rights or freedoms are not at stake. The rationale is that no one shall be convicted under an unconstitutional law (Big M Drug Mart, [1985] 1 S.C.R. 295 at pages 313-14). Likewise, where a corporation is compelled before a tribunal as a defendant in a civil proceeding initiated by the state or a state agency, it may raise the Charter in its defence whether or not it enjoys the particular right or freedom in question (Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 at paragraph 40). The analysis will be different in considering criminal prohibitions that apply exclusively to corporations (R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 at pages 181-183, 255).
Where litigants’ rights or freedoms are not directly at stake, it may be possible to seek a determination of constitutional validity based on “public interest standing”. To qualify for public interest standing, the litigant must demonstrate that: (1) there is a serious issue as to the validity of the legislation or administrative action; (2) they have a genuine interest in the measure’s validity; and (3) that the litigation is a reasonable and effective way to bring the matter before the court (Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 S.C.R. 524). These factors must all be assessed by judges in a “purposive and flexible” manner, taking into account “whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the action to go forward will serve the purpose of upholding the principle of legality” (Downtown Eastside Sex Workers United Against Violence Society, supra, at paragraph 50). “All other relevant considerations being equal, a plaintiff with standing as of right will generally be preferred” (Downtown Eastside Sex Workers United Against Violence Society, supra, at paragraph 37).
(ii) Statutes of limitations
General statutes of limitation apply to bar claims for personal remedies under section 24(1) of the Charter. They do not, however, bar claims for remedies under section 52(1) of the Constitution Act, 1982, in respect of legislation that is alleged to be unconstitutional (Ravndahl v. Saskatchewan, [2009] 1 S.C.R. 181).
(iii) The Charter as interpretive aid
The Charter may be relied upon to aid in the interpretation of legislation even where that legislation is not directly challenged, assuming that the wording of the statutory provision is genuinely ambiguous (Symes v. Canada, [1993] 4 S.C.R. 695 at page 752; Bell ExpressVu v. Rex, [2002] 2 S.C.R. 559 at paragraph 62). In such cases, the Charter may assist in deciding as between two or more possible interpretations if one is most consistent with its values. This contrasts with the typical application of the Charter to an impugned provision, which will include a formal Charter analysis and may include the application of section 1.
Where legislation is challenged as inconsistent with the Charter, the first step must be to interpret it properly: “If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted.” (R. v. Sharpe, [2001] 1 S.C.R. 45, at paragraph 33 (and cases cited therein); see also generally: Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610). In order for this interpretive rule to apply, however, the two readings must be equally plausible in accordance with the intentions of the statute — the Charter cannot be used to “create ambiguity where none exists” (Wilson v. British Columbia (Superintendent of Motor Vehicles), [2015] 3 S.C.R. 300 at paragraph 25; R. v. Clarke, [2014] 1 S.C.R. 612, at paragraph 1).
The Charter cannot be used as an interpretive aid so as to defeat the purpose of the legislation, give legislation an effect contrary to Parliament's intent or deny Parliament the full scope of its authority to justifiably limit Charter rights and freedoms pursuant to section 1 (Mossop, supra, at page 582; Willick v. Willick, [1994] 3 S.C.R. 670 at pages 679-80; Symes, supra, at page 752; Bell ExpressVu, supra, at paragraphs 64-66).
(iv) Other than legislation and regulations, what “law” must be consistent with the Charter?
The broad language of subsection 52(1) dictates that all law, including the common law, must be consistent with the Charter (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at paragraph 25). Accordingly, as the common law develops, it should do so in a manner consistent with the Charter (Salituro, [1991] 3 S.C.R. 654, at page 670; R. v. Mann, [2004] 3 S.C.R. 59 at paragraph 17; R. v. Clayton, [2007] 2 S.C.R. 725 at paragraph 21). Where a common law rule is inconsistent with the Charter, it should be modified if possible so as to comply, unless any such modification upsets the balance between the judicial and legislative sphere (R. v. Swain, [1991] 1 S.C.R. 933 at pages 978-79; Salituro, supra, at page 675; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at page 878; Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 at paragraph 91; R. v. Golden, [2001] 3 S.C.R. 679 at paragraph 86).
A binding policy of general application adopted by a government entity pursuant to a rule-making power may also be a “law” for the purposes of section 52(1). Where such a policy is unconstitutional, the appropriate remedy is not an individual remedy under section 24(1) of the Charter but a declaratory remedy under section 52(1) of the Constitution Act, 1982 (Greater Vancouver Transportation Authority v. Canadian Federation of Students - British Columbia Component, [2009] 2 S.C.R. 295 at paragraphs 87-90).
(v) Who has authority to entertain Charter claims?
The jurisdiction of superior courts to issue declaratory judgments on the constitutional validity of provincial and federal legislation is fundamental to Canada's federal system (Kourtessis v. Canada (Minister of National Revenue - M.N.R.), [1993] 2 S.C.R. 53 at paragraph 93; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at page 328).
When Charter claims are brought before inferior courts or administrative tribunals, the relevant question is whether the legislature intended the court or tribunal to have the power to interpret and apply the Charter (Cuddy Chicks v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 at pages 14-15). A tribunal will be presumed to have the power to interpret and apply the Charter in relation to a matter properly before it, including determining the validity of its enabling legislation, if the legislature has granted it the express or implicit authority to decide questions of law and Charter jurisdiction has not been clearly withheld (Martin, supra, at paragraph 36; R. v. Conway, [2010] 1 S.C.R. 765 at paragraph 77).
When an inferior tribunal finds legislation inconsistent with the Charter, the finding only applies to the matter before it. No formal declaration of invalidity can be made, the tribunal is entitled only to treat the unconstitutional law as if invalid for the purposes of discharging its statutory duty (if still possible), no judicial deference is afforded the decision, and it is not a binding precedent. Only superior courts have the power to formally invalidate legislation (Cuddy Chicks, supra, at page 17; Martin, supra, at paragraph 31).
3. What is the effect of finding that a law unjustifiably limits the Charter?
The language of s. 52(1) is mandatory. A court faced with a constitutional challenge to a law must determine to what extent it is unconstitutional and declare it to be so (G at paragraph 86). There is no discretion to leave unconstitutional laws “on the books” subject to case-by-case remedies (Ferguson, supra, at paragraphs 35, 64-65; Greater Vancouver Transportation Authority, supra, at paragraph 87).
(i) Defining the extent of the inconsistency
When a court makes a finding of inconsistency with the Charter, it must first define the extent of the inconsistency. The nature and extent of the underlying Charter violation lays the foundation for the remedial analysis because the breadth of the remedy will reflect at least the extent of the breach (G, supra, at paragraph 108).
This helps to ensure that the remedy fully addresses the law’s constitutional defects while also serving the broader public interest in having government act in accordance with the Constitution (G at paragraph 109). On the other hand, it also serves the public interest in preserving the application of the constitutional aspects of the law (G at paragraph 111).
(ii) Determining the form and breadth of the declaration
The second step is to determine the form that the declaration should take (Schachter, supra, at page 695; G at paragraph 112). This part of the analysis was discussed extensively and revised to some extent in the G decision. It involves an exercise of ”principled remedial discretion” (G at paragraph 93), which is based on constitutional considerations drawn from the text of the Constitution and “the broader architecture of our constitutional order and the rule of law” (G at paragraph 158). The exercise of this discretion should be guided by – and transparently explained with reference to – four foundational principles (G at paragraphs 94, 158):
- Charter rights should be safeguarded through effective remedies.
- The public has an interest in the constitutional compliance of legislation.
- The public is entitled to the benefit of legislation.
- Courts and legislatures play different institutional roles.
To ensure the public has the benefit of enacted legislation, remedies of reading down, reading in, and severance – tailored to the breadth of the violation – should be employed when possible so that the constitutional aspects of legislation are preserved (G at paragraph 111). However, tailored remedies will “frequently not be appropriate” (G at paragraph 114) as they should only be granted where it can be fairly assumed that the legislature would have passed the law as amended by the declaration (G at paragraph 114). Relevant considerations include:
- The significance of the remaining portion – Tailored remedies should be avoided where they would so markedly transform the remaining portions of the legislation that it cannot be presumed that the legislature would have passed the legislation in its modified form (Schachter, supra, at pages 710-712; G at paragraph 114). Where the remaining portion of the legislation is very significant or of a long-standing nature, this strengthens the presumption that the legislature would have enacted it without the offending portion (Schachter at pages 712-715).
- Interference with legislative objective — The remedy should further the legislative objective. When the means that offend the Constitution were deliberately chosen to further the objective, the Court should generally not substitute different means and should leave the solution to the legislature (Schachter, supra, at pages 707-710; G at paragraph 114).
- Remedial precision — Tailored remedies should only be granted where they flow with sufficient precision from the requirements of the Constitution. While courts are capable of determining what the Constitution requires, they are not well-suited to making "ad hoc choices from a variety of options" (Schachter at page 707; G at paragraph 115).
Striking down involves a finding of invalidity of the entire provision or law in question (e.g., Big M Drug Mart, supra, at pages 355-56; G at paragraphs 112, 114, 116). This is the remedy that applies where a tailored remedy is not appropriate.
Reading down is when a court limits the reach of legislation by declaring it to be of no force and effect to a precisely defined extent. Reading down is an appropriate remedy when "the offending portion of a statute can be defined in a limited manner" (G at paragraph 113; Schachter at page 697).
Reading down involves shrinking the reach of a statute to remove its unconstitutional applications or effects without regard to the explicit statutory language that would be required to achieve that result (see e.g., R. v. Grant, [1993] 3 S.C.R. 223; Canada (Attorney General) v. Federation of Law Societies, [2015] 1 S.C.R. 401; R. v. Appulonappa, [2015] 3 S.C.R. 754 at paragraph 85).
In some cases, the Supreme Court appears to have employed the reading down technique without referring to it by name, by stipulating in its declaration that the law was of no force or effect “to the extent that” it applied in a particular context (see R. v. Smith, [2015] 2 S.C.R. 602 at paragraph 31) or simply by describing the situations in which the law does not apply (see R. v. K.R.J., [2016] 1 S.C.R. 906 at paragraph 115, explaining that the impugned provision “does not apply retrospectively”).
Reading in involves broadening the reach of the legislation by “declaring an implied limitation on its scope to be without force or effect” (G at paragraph 113). This remedy may be appropriate where the inconsistency between a law and the Constitution arises from what the statute wrongly excludes or omits (Schachter at page 698; G at paragraph 113). G uses the term “reading in” to describe the effect of a declaration at a conceptual rather than textual level. The question is not whether words would need to be added to the legislative text to achieve the result, as it was sometimes framed in earlier jurisprudence (see e.g., M. v. H., [1999] 2 S.C.R. 3 at paragraph 139). Rather, the question is whether the reach of the legislation is being expanded (reading in) rather than contracted (reading down).
Prior to the G decision, some cases indicated that the remedy of reading in should be used sparingly (see Trial Lawyers Association of British Columbia v. British Columbia (A. G.), [2014] 3 S.C.R. 31 at paragraph 66; Miron v. Trudel, [1995] 2 S.C.R. 418 at page 510). This caution appears to have been overtaken by G, which proposes the same general approach to all of the tailored remedies, and which recognizes that the considerations associated with reading in can equally be associated with severance, depending on the drafting of the provision in question (G at paragraph 113).
In cases involving benefits legislation that is invalidated for being underinclusive (e.g., under section 15 of the Charter), reading in may be more rare as there may be multiple ways in which the legislature could respond (see Schachter at pages 723-24). However, reading in was held to be appropriate in Miron v. Trudel, where legislative changes that post-dated the impugned legislation could be relied upon as evidence of what the legislature would have done if faced with the need to amend the impugned legislation to make it compliant with the Charter.
One of the relevant considerations in cases involving underinclusive legislation is the relative size of the groups affected. Where the group to be added is smaller than the group originally benefited, this may indicate that it is safe to assume that the legislature would have enacted the (extended) legislation (Schachter, supra, at pages 711-712).
Severance is when a court declares certain words to be of no force or effect, thereby achieving the same effects as reading down or reading in, depending on whether the severed portion serves to limit or broaden the legislation’s reach. Severance is appropriate where the offending portion is set out explicitly in the words of the legislation (G at paragraph 113; see also R. v. Morales, [1992] 3 S.C.R. 711 at pages 741-43).
Severance may further the objective of respecting the role of the legislature by leaving in force those elements of the legislation that do not offend the Constitution. On the other hand, where the remaining portion is inextricably bound up with the offending part, severance may be more intrusive than simply striking down (Schachter, supra, at page 697).
(iii) Suspending the effect of a section 52(1) declaration
The approach to suspensions was discussed at length and substantially revised in the G decision, overtaking much of the previous jurisprudence on this issue.
The power to suspend the effect of a declaration of invalidity is included in the power to declare legislation invalid (G at paragraph 121). This power reflects the distinction between declaring legislation unconstitutional and determining the practical and legal effects that flow from that declaration (G at paragraph 122).
There is a strong interest in declarations with immediate effect, which reflect the principles that Charter rights should be safeguarded through effective remedies and that the public has an interest in constitutionally compliant legislation (G at paragraphs 131-32; see also Carter v. Canada (Attorney General), [2016] 1 S.C.R. 13 at paragraph 2).
The government bears the onus of demonstrating that a compelling public interest supports a suspension. The specific interest and the manner in which an immediate declaration would endanger that interest must be identified and, where necessary, supported by evidence (G at paragraph 133). These compelling interests cannot be reduced to a closed list of categories, such as those that were outlined in Schachter (where an immediate declaration would pose a threat to the rule or law or to public safety, or in cases involving underinclusive benefits). Rather, the compelling interests capable of justifying a suspension will be related to a remedial principle grounded in the Constitution (G at paragraph 126). These may include the principles that the public is entitled to the benefit of legislation or that courts and legislatures play different institutional roles, depending on the circumstances. Allowing the legislature to fulfil its law-making role can be a relevant consideration in whether to grant a suspension, but only when the government demonstrates that an immediately effective declaration would significantly impair the ability to legislate (G at paragraph 129).
The benefit achieved (or harm avoided) by the suspension must then be transparently weighed against countervailing remedial principles. This includes considering factors such as the significance of the rights infringement, which will weigh more heavily when criminal jeopardy is at stake, and the potential that the suspension will create harm or give rise to legal uncertainty (G at paragraph 131). The principled balancing approach is intended to make the analysis more disciplined and stringent because any suspension must be specifically justified. The appropriate balance will result in suspensions “only in rare circumstances” (G at paragraph 132).
Although G makes it clear that the approach to determining whether a declaration should be suspended is a principled, rather than categorical one, it also acknowledges that the three categories of cases recognized in Schachter (threats to rule of law, threats to public safety and underinclusive benefits) reflect constitutionally grounded considerations, including recognizing the public’s interest in legislation passed for its benefit (G at paragraph 124). However, it also clarifies that a suspension will not be granted simply because one of the categories articulated in Schachter is involved (e.g., where a case engages public safety) (G at paragraph 132).
Cases pre-dating G may continue to be relevant to the extent any decision to grant a suspension can be explained with reference to the foundational remedial principles articulated in G. However, these cases should be treated with caution in light of G.
In R. v. Swain, [1991] 1 S.C.R. 933 at pages 1021-1022, the Court granted a suspension on the basis that an immediate declaration would have posed a risk to public safety by exposing the public to potentially dangerous persons. In Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at pages 752-753, 766-769, a suspension was granted because an immediate declaration would have posed a threat to the rule of law. In Schachter, the Court held that a suspension was appropriate because immediately striking down the underinclusive law would have deprived the current beneficiaries of a law, potentially without providing redress to the applicant (see also Martin at paragraph 119; Trociuk v. British Columbia (Attorney General), [2003] 1 S.C.R. 835 at paragraph 44). Suspensions have also been granted in cases where an immediate declaration would deprive the government of revenue that is needed for the administration of justice (Re Eurig Estate, [1998] 2 S.C.R. 565 at paragraph 44), unintentionally create vested rights (R. v. Guignard, [2002] 1 S.C.R. 472 at paragraph 32), or have the effect of extending rights that may not be constitutionally required (e.g., Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 at paragraph 66).
Prior to G, suspensions had typically been combined with the remedies of striking downand, in some cases, severance (see e.g., Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at paragraphs 118-9; U.F.C.W., Local 1518, v. KMart Canada Ltd., [1999] 2 S.C.R. 1083 at paragraph 79; see also Sharpe, supra, at paragraph 114). The analysis and decision in G, in which the Court combined a suspension with a reading down remedy,indicate that suspensions can be combined with any form of declaration.
When deciding whether to grant a suspension, a court must also determine its length. The government bears the onus of demonstrating the appropriate duration. There is no default length of time such as 12 months (G at paragraph 135). Where warranted, a suspension should be long enough to give the legislature the amount of time it requires to carry out its responsibility diligently and effectively “while recognizing that every additional day of rights violations will be a strong counterweight against giving the legislature more time” (G at paragraph 139).
The burden on an Attorney General who seeks an extension of a suspension of a declaration of constitutional invalidity is heavy — extraordinary circumstances must be shown (Carter (2016) at paragraph 2).
(iv) Exemptions from suspensions
Where a declaration of invalidity has been suspended, such that the unconstitutional law remains temporarily in force, courts sometimes grant individual relief, in the form of an exemption from the suspension, to successful litigants (see G at paragraph 145; Martin at paragraph 120; Guignard at paragraph 32; Nguyen v. Quebec (Education, Recreation and Sports), [2009] 3 S.C.R. 208 at paragraph 47; Swain at paragraph 156; Mackin at paragraph 88; Ref. re Remuneration of Judges of Prov. Court of PEI, [1998] 1 S.C.R. 3 at paragraph 20).
The authority to grant individual exemptions from suspensions flows from section 24(1) of the Charter (Schachter at 720; G at paragraphs 146-47).
Granting an individual remedy in conjunction with a suspended declaration will often be appropriate and just as it reflects the principle that rights should be safeguarded through effective remedies (G at paragraph 147; see also Mackin paragraph 20). It also recognizes that successful litigants are not in the same position as others subject to an unconstitutional law in that they have done the public interest a service by ensuring that an unconstitutional law is taken off the books. Individual exemptions further the public interest by removing the disincentive that suspensions can cause to litigation in the public interest (G at paragraph 148).
Exemptions from suspensions will often be necessary to balance the interests of the litigant, the broader public, and the legislature (G at paragraph 152). There must be a compelling reason to deny the claimant an immediately effective remedy (G at paragraph 149). This may be the case in circumstances where granting an exemption would undermine the interest motivating the suspension in the first place (i.e., the different institutional roles of courts and legislatures and the public interest in the operation of the legislation) (G at paragraph 150). It may also be the case where practical considerations like judicial economy make it inappropriate to grant individual relief. This may be the case, for example, where a large group or class of claimants comes forward as it may not be practical or feasible to conduct the individual assessments necessary to grant them all individual exemptions (G at paragraph 151).
(v) Temporal considerations
In practical terms, a declaration of invalidity generally has only prospective effects with regard to non-parties (R. v. Boudreault, [2018] 3 S.C.R. 599, at paragraph 105). By contrast, a declaration of invalidity generally has retroactive effect with respect to parties; in Blackstonian terms it is as if the law never existed since the legislature has no authority to enact a law that offends the Constitution (Canada (Attorney General) v. Hislop, supra, at paragraph 86). However, if a court, in finding a Charter violation, is effecting a substantial change in the law rather than merely applying existing law, then it may be appropriate to issue a prospective remedy only (Hislop at paragraph 86). Whether it is appropriate or not depends on a consideration of several factors, including governments’ reliance on the pre-existing legal rule, governments’ good faith in responding to evolution in the law, fairness to the litigants and respect for the role of the legislature (Hislop at paragraph 100).
Where the legislature responds prior to the expiry of a period of suspension, the declaration does not have retroactive effect (Hislop at paragraphs 89-92), which means that the law generally continues in force without interruption.4. Stand-alone constitutional exemptions
In contrast to an exemption from a temporarily valid law, stand-alone constitutional exemptions “are to be avoided” (Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134 at paragraph 149). If a law produces unconstitutional effects, section 52(1) renders the law of no force or effect to the extent of the inconsistency (Ferguson, supra, at paragraph 65). Taking a case-by-case approach to unconstitutional law (i.e., through the use of constitutional exemptions) would be inappropriate because it would: (1) disregard the remedial scheme of the Constitution, including the mandatory wording of section 52(1); (2) create uncertainty and undermine the rule of law; and (3) usurp Parliament’s role and responsibility (Ferguson, supra, at paragraphs 58-73; Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331 at paragraph 125). Although the Court has not expressly closed the door on stand-alone constitutional exemptions as a remedy for unconstitutional laws outside the section 12 context, this appears to be the practical implication of Ferguson, PHS and Carter. The door has expressly been closed on the use of constitutional exemptions to remedy section 12 violations arising from mandatory minimum penalties (Ferguson, supra).