The Effect of Declarations of Unconstitutionality in Canada

(2021) National Journal of Constitutional Law (Forthcoming)

Ottawa Faculty of Law Working Paper No. 2021-22

50 Pages Posted: 27 Sep 2021 Last revised: 7 Dec 2021

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

Jeremy Opolsky

Torys LLP

Jake Babad

Torys LLP

Julie Lowenstein

Torys LLP

Date Written: August 27, 2021

Abstract

Remarkably, almost four decades after the patriation of Canada’s Constitution and the entrenchment of a judicially enforceable Charter of Rights and Freedoms, the effect of a declaration of unconstitutionality by a superior court remains obscure.

The principles relating to when a court should make a declaration of unconstitutionality and, if so, on what terms, have been the subject of extensive debate and exhaustive (sometimes exhausting) judicial discussion. But the absence of debate and discussion about the effect of a declaration of unconstitutionality has left a large gap in Canada’s legal landscape. On a regular basis, declarations of unconstitutionality are ignored: individuals are prosecuted for violating unconstitutional legislation; and when legislation is declared to be unconstitutional, courts elsewhere in the same province and further afield do not necessarily give effect to the declaration. This is a deeply unsatisfactory state of affairs. It cries out for clarity.

In this article, we lay out our analysis of the effect of a declaration of unconstitutionality. We say that declarations of unconstitutionality issued by a superior court with jurisdiction over the parties, subject matter and remedy have binding force against the world at large. They apply province-wide and nation-wide, transcending the parties to the case and affecting all Canadians. This, we argue, follows from the text, context and history of the supremacy clause of the Constitution of Canada (section 52(1)) and from the nature of declaratory relief in public law cases. Stare decisis, res judicata and the territorial limitations on superior court jurisdiction are, in our analysis, red herrings.

Declarations of unconstitutionality have these universal effects when they are final: that is, once any suspension of the declaration comes to an end and/or the declaration has not been appealed to a higher court.

The decision of the Ontario Court of Appeal in R v. Sullivan is a convenient foil for our analysis. As will become clear, we take a different view from Paciocco JA, who wrote extensively on this point, but we acknowledge at the outset that his is the most detailed and careful judicial analysis of the effects of declarations of unconstitutionality, provoking a much-needed debate about an issue heretofore shrouded in obscurity.

In Part A, we make our case for the binding force of declarations. In our view, the plain language of section 52(1) compels the conclusion that declarations of unconstitutionality have universal effect. Our textual analysis is, moreover, confirmed by the Supreme Court’s jurisprudence: declarations of unconstitutionality have binding force against the world at large. This reading is, furthermore, consistent with the nature of declaratory relief in public law cases, as we demonstrate by means of a historically informed analysis. Finally, we note that our textual, contextual and historical argument furthers the rule of law and facilitates access to justice: simply put, recognition that declarations of unconstitutionality have binding force against the world at large enhances legal certainty – everyone knows where they stand – and facilitates access to justice – everyone knowing where they stand, less litigation is needed.

In Part B, we turn our attention to alternative approaches to the juridical effect of declarations of unconstitutionality. Taking them in turn, we explain why stare decisis, res judicata and territorial limitations are red herrings: stare decisis is not the correct lens through which to assess the force of declarations of unconstitutionality, as the issue is not the ratio decidendi of the decision to issue the declaration of unconstitutionality but rather the juridical effect of the declaration of unconstitutionality; reliance on res judicata similarly involves a category error, as the issue is not whether further litigation is precluded (and, in any event, the requirements of estoppel will rarely be met in public law cases) but – again – the juridical force of the declaration of unconstitutionality; and territorial limitations are an unhelpful distraction because as long as the superior court in question had jurisdiction over the parties, the subject matter and the remedy, the effects of a declaration of unconstitutionality may transcend the boundaries of the province just as they transcend the parties before the court.

Lastly, in Part C, we explore some practical implications of our analysis. Our analysis leads us to adopt a position which has not, as yet, been adopted in Canada. As such, some practical problems are likely to arise. Where there is parallel litigation about the constitutionality of legislation, which court’s decision has binding force? The first one, we say. What happens when the Crown refuses to appeal a decision contained a declaration of unconstitutionality? We say the law is unconstitutional. The Crown should appeal (and indeed can appeal to the Supreme Court of Canada under section 40(1) of the Supreme Court Act). If it does not, that is the end of the matter. Constitutionality depends on the juridical effect of a declaration of unconstitutionality, not on the good graces of the Crown. What if judicial interpretation of the Constitution changes after a declaration of unconstitutionality has been made? We say the correct approach in such a case is for the responsible legislature to re-enact the law and refer the question of its constitutionality to an appellate court, from where an appeal lies to the Supreme Court of Canada. What happens to laws which were, long ago, declared to be unconstitutional by a single superior court judge? We say those laws would, indeed, be unconstitutional, but that any change in the law effected by the Supreme Court should (our principles being tempered here by a large dose of pragmatism) have prospective effect only.

Suggested Citation

Daly, Paul and Opolsky, Jeremy and Babad, Jake and Lowenstein, Julie, The Effect of Declarations of Unconstitutionality in Canada (August 27, 2021). (2021) National Journal of Constitutional Law (Forthcoming), Ottawa Faculty of Law Working Paper No. 2021-22, Available at SSRN: https://ssrn.com/abstract=3912690

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Jeremy Opolsky

Torys LLP ( email )

79 Wellington Street West, Suite 3000
Box 270, TD Centre
Toronto, NY Ontario M5K 1N2
Canada

Jake Babad

Torys LLP ( email )

79 Wellington Street West, Suite 3000
Box 270, TD Centre
Toronto, NY Ontario M5K 1N2
Canada

Julie Lowenstein

Torys LLP ( email )

79 Wellington Street West, Suite 3000
Box 270, TD Centre
Toronto, NY Ontario M5K 1N2
Canada

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