Subsection 52(1) – The supremacy clause

Provision

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: subsection 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; subsection 24(1) provides remedies against unconstitutional government action; and subsection 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 subsection 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

Subsection 52(1) reaffirms constitutional supremacy. 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). When a court finds or “declares” that a law unjustifiably limits the Charter, that law is null and void by operation of subsection 52(1) (R. v. Ferguson, [2008] 1 S.C.R. 96 at paragraph 35).

Analysis

1. Basic principles

Subsection 52(1) should be read in conjunction with subsection 24(1). The former is generally the source of a court’s authority to remedy unconstitutional legislation, while the latter generally provides remedies against unconstitutional government action pursuant to an otherwise constitutional law (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).

The distinct functions of subsections 52(1) and 24(1) also underpin the general rule against combining remedies under subsection 52(1) with individual retroactive remedies under subsection 24(1) (Schachter v. Canada, [1992] 2 SCR 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; R. v. Demers, [2004] 2 S.C.R. 489 at paragraphs 61-63; Vancouver (City) v. Ward, [2010] 2 S.C.R. 28). Although the rule is sometimes stated as a broad rule about the interaction between subsection 52(1) and subsection 24(1) generally (see e.g., Schachter, supra) most of the more recent cases suggest that the rule is narrower in scope — operating to prevent 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; Hislop, supra at paragraph 102). Even in the context of damages or damages-like remedies, however, the general rule is not absolute. Subsection 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., paragraph 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 SCC 45). 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, 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 subsection 24(1) of the Charter. They do not, however, bar claims for remedies under subsection 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 SCC 47, [2015] 3 S.C.R. 300 at paragraph 25; R. v. Clarke, 2014 SCC 28, [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, supra, 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; R. v. Salituro, [1991] 3 S.C.R. 654 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 subsection 52(1). Where such a policy is unconstitutional, the appropriate remedy is not an individual remedy under subsection 24(1) of the Charter but a declaratory remedy under subsection 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 other than superior courts?

The relevant question is whether the legislature intended the administrative tribunal or statutory court before which a Charter claim is made 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 invalidity of a legislative provision found to be inconsistent with the Charter does not depend on it being “declared” unconstitutional by a court, but from the operation of subsection 52(1). Having found a law inconsistent, a court does not have discretion as to whether or not to invalidate it (Martin, supra, at paragraph 28; Ferguson, supra at paragraphs 35, 64-65; Greater Vancouver Transportation Authority at paragraph 87).

Generally, a declaration of invalidity has retroactive effect; 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, [2007] 1 S.C.R. 429 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, supra, 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, supra, at paragraph 100).

When a court makes a finding of inconsistency with the Charter, it must first define the extent of the inconsistency. The next step is to determine the most appropriate judicial response that will remedy the unconstitutionality (Schachter, supra, at page 695). In doing so it must be guided by the twin principles of respect for the role of the legislature and respect for the purposes of the Charter (Schachter, supra, at page 707 and page 715; Vriend v. Alberta, [1998] 1 S.C.R. 493 at paragraphs 148-150; Ferguson, supra at paragraphs 50-51). There is no judicial discretion to choose an appropriate remedy as under subsection 24(1) of the Charter; rather the application of established principles determines the correct subsection 52(1) remedy for the circumstances.

Remedial options include:

(i) Striking down

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).

In deciding whether to strike the unconstitutional provision down in its entirety, or whether to apply an alternative remedy that allows for judicial correction of the constitutional defect (severance, reading in or reading down), the following considerations are relevant:

Remedial precision — Judicial correction of the problem through the remedies of severance, reading in or reading down is only appropriate where the solution flows with sufficient precision from the requirements of the Constitution. Where there are multiple potential solutions, the court should strike the legislation down and leave the task of selecting among the various solutions to the legislature (Schachter, supra, at pages 705-707).

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).

Change in significance of the remaining portion — Judicial correction should be avoided if it 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).

Significance of the remaining portion — 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, supra, at pages 712-715).

(ii) Severance

Severance involves declaring invalid the inconsistent portion of the law and if required, any part of the remainder of which it cannot be safely assumed the legislature would have enacted on its own (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; A.-G. for Alberta v. A.-G. for Canada, [1947] A.C. 503, at page 518).

Severance may be combined with reading in if the result would be less intrusive than merely invalidating the whole provision (R. v. Laba, [1994] 3 S.C.R. 965 at pages 1013-16).

(iii) Reading in

In some cases, the inconsistency between a law and the Constitution arises from what the statute wrongly excludes or omits. In such cases, the remedy of “reading in” may be available, though this remedy is to be used sparingly (see Trial Lawyers Association of British Columbia v. British Columbia (A. G.), 2014 SCC 59, [2014] 3 S.C.R. 31 at paragraph 66). Reading in is not available if it would substantially change the nature or objective of the legislative scheme (Vriend, supra, at paragraph 161).

Remedial precision, in the context of reading in, means that the validity of the legislation can be achieved through the “insertion of a handful of words, without more” (M. v. H., [1999] 2 S.C.R. 3 at paragraph 139; but see R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, in which a relatively complex exception was “read in” to the criminal prohibitions on child pornography).

In the case of legislation invalidated for being under-inclusive (e.g., under section 15 of the Charter), reading in is available if the question of how far the benefit should be extended may be answered with sufficient precision. However, the Court has indicated that the use of the reading in remedy to retroactively “read up” or extend the reach of a statute will only be appropriate in exceptional circumstances (Miron v. Trudel, [1995] 2 S.C.R. 418 at page 510). Such exceptional circumstances were held to be present 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 is an indication that it is safe to assume that the legislature would have enacted the (extended) legislation (Schachter, supra, at pages 711-712). However, this does not necessarily always hold true (ibid., at page 712).

(iv) Reading down

Unlike reading in and severance, which are used to describe the remedy at the textual level (i.e., in terms of words that are to be added or deleted from the unconstitutional provision), “reading down” describes the remedy at a conceptual level. 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 SCC 7, [2015] 1 S.C.R. 401; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 at paragraph 85).

Reading down may be the analog of reading in or severance in effect, depending on the way in which the offending provision is drafted (see Schachter, supra at pages 698-700; see also, Federation of Law Societies, supra, where reading down was used in relation to two provisions — one of which would have required the addition of words and one of which would have required the deletion of words).

In at least two 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 SCC 34, [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 SCC 31, [2016] 1 S.C.R. 906 at paragraph 115, explaining that the impugned provision “does not apply retrospectively”).

(v) Temporary suspension

This question is addressed separately from that of invalidity. The effect of a declaration of invalidity may be temporarily suspended to give the legislature time to respond. Where the legislature responds prior to the expiry of a period of suspension, the declaration does not have retroactive effect (Hislop, supra, at paragraphs 89-92), which means that the law generally continues in force without interruption.

Although the Supreme Court has indicated that the continued force and effect of an unconstitutional law is a very serious matter that should not lightly be condoned (Schachter, supra at page 716; Carter v. Canada (Attorney General), 2016 SCC 4, [2016] 1 S.C.R. 13 at paragraph 2, explaining that suspending a declaration of invalidity is an “extraordinary step”), its practice has generally been to grant suspensions where at least some potential harm to the public interest can be articulated.

The decision temporarily to suspend the effect of a finding of unconstitutionality generally turns on the question of the effect of an immediate declaration of invalidity on the public. A suspension is “clearly appropriate” where an immediate declaration would pose a potential danger to the public (e.g., by exposing the public to potentially dangerous persons as in Swain [1991] 1 S.C.R. 933 at pages 1021-1022) or otherwise threaten the rule of law (e.g., Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at pages 752-753, 766-769) and may also be appropriate in cases of underinclusive legislation that cannot be remedied by reading in (Schachter, supra, at pages 715-716). In the latter group of cases, immediately striking down the law may deprive the current beneficiaries of a law, and may do so without providing redress to the applicant (Schachter, supra; Martin, supra at paragraph 119; Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [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 SCC 94, [2001] 3 S.C.R. 1016 at paragraph 66). A suspension was granted in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 on the basis that “moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians” (paragraph 67).

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).

(vi) Exemption from a temporarily valid law

Where a declaration of invalidity has been suspended, such that the unconstitutional law remains temporarily in force, the Court sometimes exempts the successful litigant from the temporarily valid law (see e.g., Martin, supra, at paragraph 120; Guignard, supra, at paragraph 32). The rationale that is often provided in such cases is that a successful Charter claimant should be able to take advantage of the finding of unconstitutionality (see e.g., Mackin v. New Brunswick, [2002] 1 S.C.R. 405 at paragraph 20).

Despite the fact that the Court does not always reference the authority for this remedy, it flows from subsection 24(1) of the Charter (Schachter, supra, at 720). As such, these cases represent an exception to the general rule against combining remedies under subsection 52(1) and subsection 24(1) and may indicate that the general rule has less application where damages (or damage-like remedies) are not at issue (see e.g., Guignard, supra at paragraph 34; Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47, [2009] 3 S.C.R. 208 at paragraph 47; Swain, supra, at paragraph 156; Mackin, supra at paragraph 88; Ref. re Remuneration of Judges of Prov. Court of PEI, [1998] 1 S.C.R. 3 at paragraph 20).

In other cases, however, the Court has declined to grant an exemption from a temporarily valid law on the basis of a stricter construction of the rule against combining remedies under subsection 52(1) and subsection 24(1) (see Demers, supra, which was a case involving the liberty rights of individuals who were unfit to stand trial and in which the majority held that it was “precluded” from combining retroactive remedies under subsection 24(1) with remedies under subsection 52(1) and granted, instead, a prospective subsection 24(1) remedy to take effect if the government had not acted to address the claimant’s circumstances once the suspension of the declaration of invalidity had expired).

In determining whether an exemption from a suspension is appropriate, one potentially relevant consideration is whether it can safely be assumed that Parliament’s ultimate response will provide the claimant with the practical benefit sought. Where this is not the case, an exemption may not be appropriate (see e.g., Schachter, supra; but see Mackin, supra).

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 SCC 44, [2011] 3 S.C.R. 134 at paragraph 149). If a law produces unconstitutional effects, subsection 52(1) renders the law of no force or effect to the extent of the inconsistency (Ferguson 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 subsection 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 SCC 5, [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).

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