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Charter - s.52(1) Declarations of Invalidity (2). Right to Life Association of Toronto v. Canada (Attorney General)
In Right to Life Association of Toronto v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered when a Charter s.52 declaration would be moot:[13] A declaration that the Charter was breached may, but does not always, constitute a live controversy. A declaration may be granted only if it will have practical utility, that is, if it will settle a "“live controversy”" between the parties: Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99 at para. 11; Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745; Income Security Advocacy Centre v. Mette, 2016 FCA 167, [2016] F.C.J. No. 587 (Q.L.) at para. 6.
[14] Here, were the appellants successful on appeal, a declaration that Charter rights were violated by the inclusion of the attestation in the application form for a program that is spent, would serve no practical utility and would not resolve any live controversy. If, in the future, a funding program contains a similar attestation requirement, it can be challenged at that time. And, of course, the challenge necessarily would depend on the type of attestation requirement and the reasons behind it. There is a good chance that a decision in this case on these particular facts would be of no use in that later case.
[15] Indeed, in the sequel to Trang 2005, the Alberta Court of Appeal stated that "“[d]eclarations may not be granted where the dispute has become academic, or will have no practical effect in resolving any remaining issues between the parties”": Trang v. Alberta (Edmonton Remand Centre), 2007 ABCA 263, 412 A.R. 215, at para. 15, leave to appeal to SCC refused, 32310 (21 February, 2008), [Trang 2007]. That decision overturned the lower court’s decision to grant a declaration of a breach of Charter rights, explaining why declarations rarely will be granted if they will have no practical effect on the rights of the parties: Trang 2007 at paras. 13-25.
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