Simon's Megalomaniacal Legal Resources

Charter - s.52(1) Declarations of Invalidity (2)

. Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks)

In Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks) (Div Court, 2023) the Divisional Court considered a unique JR application brought by a municipality against Ontario. After a prolonged delay in responding to the municipality's wastewater infrastructure approval request [under the Environmental Assessment Act (EAA)] - and the consequent filing of a mandamus JR by the municipality to compel the statutorily-required response [EAA s.10] - the province "enacted the YRWA (SS: 'York Region Wastewater Act, 2021') which provided for the establishment of an “advisory panel” to study the wastewater management options available and to make recommendations. The JR was then argued, with the court reserving their decision (through no 'YRWA advisories' had yet been issued). While the parties were awaiting the court decision the province repealed the YRWA [via the 'SGA' (Supporting Growth and Housing in York and Durham Regions Act, 2022)], with additional statutory provisions that the municipality's EA approval was 'deemed' withdrawn, that the municipality was required to implement the province's preferred wastewater plans, and giving the province immunity from any related causes-of-action. As a consequence the municipality withdraw it's mandamus request, but still sought a declaration of constitutional invalidity that the YRWA and the SGA infringed the s.96 constitutional Superior Court authority.

The current case is the reasons for decision on this re-focussed JR, which has still been reserved after this legislative fuss. In it, the court held that they had jurisdiction to hear the JR as now sought by the municipality [since the legislation constituted a "refusal to exercise a statutory power" under JRPA 2(1)2], but that the court would not exercise it's JR discretion to hear it as it was moot.

The following quotes stand for the proposition that the Divisional Court's judicial review declaration jurisdiction encompasses a 'declaration of constitutional invalidity':

[17] York Region abandoned its request for an order of mandamus in light of the enactment of the SGA. As a result, Ontario submitted for the first time on the attendance before the panel in March 2023 that this subject matter no longer fits within the ambit of jurisdiction under the Judicial Review Procedure Act, R.S.O. 1990, c.J.1. Ontario submits that, while s. 2(1) of that legislation permits this court to entertain requests for declaratory relief in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power it does not grant this court jurisdiction to issue the declarations of invalidity of the YRWA or the SGA which are being sought.

[18] York Region submits that Ontario should not be permitted to raise this jurisdictional argument at such a late stage in the proceedings as Ontario had ample opportunity to do so once York Region had served its amended notice of application and notice of constitutional question. Further, York Region submits this is an appropriate case for the court to determine the constitutional validity of legislation and maintains its request for a declaration that the Minister’s refusal to fulfil the statutory duty imposed under the EAA was a violation of that duty.

[19] We are of the opinion that this court has jurisdiction to entertain this application and to consider all the remedies sought by York Region, including the issues of legislative validity it raises (see: Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks), 2022 ONSC 6859 (Div. Ct.)). We view the claim that the Minister’s failure to make a decision on York Region’s request for approval of its wastewater plan, combined with the enactment of legislation removing the requirement to make such decision may amount to a refusal to exercise a statutory power within the meaning of the Judicial Review Procedure Act, and is therefore an issue which may be reviewed by this court.

[20] We further consider, however, that the principal question for us to determine is whether this court should proceed to exercise such power of review in light of these various legislative developments and the fact that the issues raised by York Region on the application before us are now moot.

. R. v. Lavergne

In R. v. Lavergne (Ont CA, 2023) the Court of Appeal considered the unique Charter declaration jurisdiction of a provincial criminal court, being different from that of the Superior Court:

[20] Moreover, the trial judge did not err in declining to consider the constitutional challenge to s. 153(1.1)(a) that the appellant brought. The appellant was being sentenced in the provincial court, where judges do not have competent jurisdiction to make formal declarations of constitutional invalidity, pursuant to s. 52 of the Constitution Act, 1982: R. v. Lloyd, 2016 SCC 13, [2016] S.C.R. 130, at para. 15. To be sure, provincial court judges have the power to determine constitutional validity “when the issue arises in a case they are hearing”, a power that derives from their statutory power to decide the cases before them: Lloyd, at para. 16. However, McLachlin C.J.C. explained for the majority in Lloyd that a provincial court judge faced with a constitutional challenge to a statutory provision is not obliged to consider that issue when it would have no impact on the sentence in the case at issue. For example, where the provincial court judge decides that the minimum sentence does not materially exceed the fit sentencing range in the case at hand, the trial judge need not consider the constitutional challenge: Lloyd, at para. 18. The circumstances in this case are similar. The trial judge turned her mind to the constitutional validity of s. 153(1.1)(a) and decided the resolution of this issue would not alter the 14-month sentence she was imposing, since a fit sentence exceeds the minimum sentence that s. 153(1.1)(a) would require. So, the constitutional challenge was moot. In my view, the trial judge committed no error in coming to this conclusion.

[21] I understand the appellant’s submission that had s. 742.1(c) not been in effect, the trial judge may have felt differently about considering the constitutional validity of s. 153(1.1)(a) since, in those circumstances, the removal of the minimum sentence would not merely open the possibility that a sentence under 12 months could be imposed, but would also resolve whether the sentence could be served conditionally. Once again, for the reasons I have already described with respect to the sexual assault offence, there is no “distinct possibility” that had the repeal of s. 742.1(c) occurred prior to the appellant’s sentencing, the trial judge may have considered the constitutional validity of s. 153(1.1)(a), struck it down, and imposed a conditional sentence on the sexual exploitation conviction. Given the trial judge’s analysis, there is no “distinct possibility” that she may have imposed a conditional sentence had s. 742.1(c) not been in force. I would not reconsider the sentence, nor would I reconsider the trial judge’s decision not to resolve the challenge to the mandatory minimum sentence.

. 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.