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Constitution - s.52(1) Declarations of Invalidity (2). Ontario (Attorney General) v. G. [current s.52(1) declaration doctrine, full and tailored]
In Ontario (Attorney General) v. G. (SCC, 2020) the Supreme Court of Canada states the current law regarding Charter s.52(1) declarations, both full and 'tailored' (ie. read-in, read-down, severance):(3) The Form and Breadth of Section 52(1) Declarations
[108] As our jurisprudence demonstrates, and the language of s. 52(1) directs, the first step in crafting an appropriate s. 52(1) remedy in a given case is determining the extent of the legislation’s inconsistency with the Constitution. Courts should bear in mind both “the manner in which the law violates the Charter and the manner in which it fails to be justified under s. 1” (Schachter, at p. 702) in crafting tailored remedies. (While this general guideline remains useful, courts should bear in mind that the Oakes test has evolved since Schachter was decided, such that it now focuses on justifying the infringing measure rather than the law as a whole (compare Schachter, at pp. 703-5 and RJR‑MacDonald, at para. 144).) The nature and extent of the underlying Charter violation lays the foundation for the remedial analysis because the breadth of the remedy ultimately granted will reflect at least the extent of the breach.
[109] Defining the extent of the constitutional defect by reference to the substantive violation of the Charter safeguards the rights of all those directly affected by ensuring that the law is cured of all its constitutional defects. It also serves the broader public interest in having government act in accordance with the Constitution. These remedies reach beyond the claimant — and can even be granted when the claimant is not directly affected by the law — because “[n]o one should be subjected to an unconstitutional law” (Nur, at para. 51; see also R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 313). This step of the analysis therefore reflects the Charter’s rights‑protecting purpose, the public’s interest in constitutional compliance, and the text of s. 52(1) — the law is of no force or effect to the full extent of its inconsistency with the Constitution.
[110] For example, in some cases where a criminal offence’s effects on particular groups of people or in certain circumstances have been found unconstitutional, all of those people and circumstances have been exempted from criminal liability (see, e.g., Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, as interpreted in R. v. Barabash, 2015 SCC 29, [2015] 2 S.C.R. 522; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, as interpreted in R. v. Rajaratnam, 2019 BCCA 209, 376 C.C.C. (3d) 181; R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602). The same is true for mandatory minimum penalties, which can be invalidated even when the applicant is not directly affected (see, e.g., Nur; Lloyd).
[111] On the other hand, it also follows from s. 52(1) that to the extent they are not inconsistent with the Constitution, the public is entitled to the benefit of laws passed by the legislature. Tailored remedies that address the precise constitutional flaw can permit a court to both safeguard the constitutional rights of all those affected and preserve the constitutional aspects of the law. Many of the Court’s tailored remedies reflect both these principles. The criminal offences considered in Carter, Sharpe, Smith, and Appulonappa, for example, were declared of no force or effect only to the extent that they violated rights, preserving their constitutionally compliant effects.
[112] The second step is determining the form that a declaration should take. In doing so, Schachter explained that remedies other than full declarations of invalidity should be granted when the nature of the violation and the intention of the legislature allows for them. Full statutory schemes or Acts are rarely struck down in their entirety — to my knowledge, this Court has only done so on eight occasions.[3] 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 (Schachter, at p. 700; Vriend, at paras. 149‑50). Crucially, in Canada, the declaration issued cures the law’s unconstitutionality. A declaration that fails to do so, like the kind suggested by my colleagues, Justice Côté and Justice Brown, at para. 248 of their reasons, is more akin to the declaration of “inconsistency” or “incompatibility” made in jurisdictions where courts do not have the authority to strike down unconstitutional legislation (see, e.g., Attorney-General v. Taylor, [2018] NZSC 104, [2019] 1 N.Z.L.R. 213; Human Rights Act 1998 (U.K.), 1998, c. 42, s. 4(4) and (6)).
[113] 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” (Schachter, at p. 697). Inversely, reading in is when a court broadens the grasp of legislation by declaring an implied limitation on its scope to be without force or effect. Reading in is an appropriate remedy when the inconsistency with the Constitution can be defined as “what the statute wrongly excludes rather than what it wrongly includes” (Schachter, at p. 698 (emphasis in original)). 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. These forms of remedy illustrate a court’s flexibility in responding to a constitutional violation.
[114] However, if granted in the wrong circumstances, tailored remedies can intrude on the legislative sphere. Schachter cautioned that tailored remedies should only be granted where it can be fairly assumed that “the legislature would have passed the constitutionally sound part of the scheme without the unsound part” and where it is possible to precisely define the unconstitutional aspect of the law (p. 697, citing Attorney‑General for Alberta v. Attorney‑General for Canada, 1947 CanLII 347 (UK JCPC), [1947] A.C. 503 (P.C.), at p. 518). If it appears unlikely that the legislature would have enacted the tailored version of the statute, tailoring the remedy would not conform to its policy choice and would therefore undermine parliamentary sovereignty (Schachter, at pp. 705‑6; Hunter, at p. 169). The significance of the remaining portion of the statute must be considered, and tailored remedies should not be granted when they would interfere with the legislative objective of the law as a whole (Schachter, at pp. 705‑15). For example, in Vriend, Iacobucci J. read “sexual orientation” into the Individual’s Rights Protection Act, R.S.A. 1980, c. I-2, because the term was sufficiently precise and because the legislature would rather have included that protection than sacrificed the entire scheme (paras. 155‑60 and 167‑69). In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, McLachlin C.J. severed part of the tertiary ground for denying bail because the rest of the provision “is capable of standing alone without doing damage to Parliament’s intention” (para. 44). This Court has granted a remedy short of full invalidity of a statutory provision at least 24 times.[4] Nonetheless, a tailored remedy will frequently not be appropriate. This Court has opted to fully invalidate a provision at least 55 times.[5] These include the cases dealing with mandatory minimum penalties referenced above — the goal of a mandatory minimum sentence is to remove judicial discretion, so tailoring the declaration to reintroduce that discretion would distort the provision so that it no longer conformed to its legislative purpose (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 50 and 53).
[115] Lamer C.J. was also conscious of the limitation of the judicial role, explaining in Schachter that tailored remedies should not be granted when they do not “flo[w] with sufficient precision from the requirements of the Constitution”, because although courts are capable of determining what the Constitution requires, they are not well‑suited to making “ad hoc choices from a variety of options” (p. 707).
[116] In sum, consistent with the principle of constitutional supremacy embodied in s. 52(1) and the importance of safeguarding rights, courts must identify and remedy the full extent of the unconstitutionality by looking at the precise nature and scope of the Charter violation. To ensure the public retains the benefit of legislation enacted in accordance with our democratic system, 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 (Schachter, at p. 700; Vriend, at paras. 149‑50). To respect the differing roles of courts and legislatures foundational to our constitutional architecture, determining whether to strike down legislation in its entirety or to instead grant a tailored remedy of reading in, reading down, or severance, depends on whether the legislature’s intention was such that a court can fairly conclude it would have enacted the law as modified by the court. This requires the court to determine whether the law’s overall purpose can be achieved without violating rights. If a tailored remedy can be granted without the court intruding on the role of the legislature, such a remedy will preserve a law’s constitutionally compliant effects along with the benefit that law provides to the public. The rule of law is thus served both by ensuring that legislation complies with the Constitution and by securing the public benefits of laws where possible. . Hillier v. Ontario
In Hillier v. Ontario (Ont CA, 2025) the Ontario Court of Appeal allowed a Charter s.2(c) ['Peaceful Assembly'] appeal, this from POA convictions under the Reopening Ontario (A Flexible Response to COVID-19) Act.
Here the court considers developments in Charter s.52(1) remedies:[76] I would ask the parties to keep in mind some principles. The remedy must be consistent with the principles in Schachter v. Canada,[92] as clarified by G [SS: Ontario (Attorney General) v. G. (SCC, 2020)]. In G, the Supreme Court noted that in tailoring remedies under s. 52(1) of the Constitution Act, 1982, courts must balance the public’s interest in constitutional compliance and the protection of Charter rights, on the one hand, with the benefit of laws passed by the legislature, on the other hand.[93]
[77] In determining the form a remedy should take, the court should avoid full declarations of invalidity when “the nature of the violation and the intention of the legislature allows for them.”[94] The court in G added that: “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”.[95] The court added that such a declaration “cures the law’s unconstitutionality.”[96]
[78] The court in G echoed Schachter’s caution that tailored remedies should only be used “where it can be fairly assumed that ‘the legislature would have passed the constitutionally sound part of the scheme without the unsound part’ and where it is possible to precisely define the unconstitutional aspect of the law.[97] Accordingly, the importance of the remaining legislation should be considered to avoid interfering with the legislative objective of the law.[98]
[79] In a similar vein, albeit a different context, L’Heureux-Dubé J. made a trenchant comment in R. v. O’Connor that applies equally to the tailoring of remedies:It is important to recognize that the Charter has now put into judges’ hands a scalpel instead of an axe – a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system.[99] . Mathur v. Ontario
In Mathur v. Ontario (Ont CA, 2024) the Ontario Court of Appeal allowed a novel applicant's appeal, here as to whether "the alleged failure of Ontario to comply with its voluntarily imposed statutory obligations to combat climate change amount to a breach of the appellants’ ss. 7 and 15 rights under the Canadian Charter of Rights and Freedoms".
Here the court usefully considers the appropriateness of the sought 'declaration' remedy:(f) The relief requested by the appellants in their application
[66] The appellants’ application is premised on the argument that Ontario is statutorily obliged to take positive steps to redress the future harms of climate change. They ask that the Target be replaced with a constitutionally compliant Target. As the application judge found, there is an unexplained gap between international standards and the Target. The appellants argue that the reality of the Target is that it allows more greenhouse gases into the atmosphere than recommended under international standards.
[67] Ontario sees this case as requesting that the court assume judicial control over environmental and climate policy. Moreover, Ontario says that the appellants’ request that the Target conform to scientific standards is vague and imprecise. As a result, the remedy requested by the appellants is impossible to order.
[68] We disagree.
[69] First, the appellants’ requested relief includes declaratory relief, including a declaration that the Target violates their ss. 7 and 15 Charter rights, which may be ordered without the necessity of telling Ontario precisely what to do to make its Target Charter compliant. As the Supreme Court stated in Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 47, a court can exercise its discretion to grant declaratory relief as a proper remedy and, “respectful of the responsibilities of the executive and the courts, ... provide the legal framework for the executive to exercise its functions and to consider what actions to take ... in conformity with the Charter.”
[70] Second, the appellants are not requesting the court to order Ontario to set a particular target. As set out above, they seek an order directing Ontario to set a “science-based” target consistent with Ontario’s share of the reductions necessary to limit global warming below 1.5 degrees Celsius above pre-industrial temperatures or, alternatively, well below 2 degrees Celsius. The unchallenged international standards and scientific consensus about global warming and climate change and the remaining carbon budget in the evidence on this application is not imprecise. If a breach of the appellants’ Charter rights is declared, there are clear international standards based on accepted scientific consensus that can inform what a constitutionally compliant Target and Plan should look like. The international standards and the scientific evidence produced by the parties on the application clearly indicate how acceptable levels of greenhouse gas emissions are measured and calculated. Notably, this evidence also suggests that the amount of greenhouse gases that Ontario emits into the atmosphere can be calculated and that the level of reduction of gases that scientific experts opine should be implemented in order to conform with international standards are measurable.
[71] Finally, and importantly, Ontario’s argument that ordering a “science-based” target would be “so devoid of content as to be effectively meaningless” is belied by its choice stated in the Plan to align its Target to Canada’s 2030 target under the international standard of the Paris Agreement.
[72] In para. 145 of her reasons, the application judge noted that “it is appropriate in the context of this case to assess the Target in light of global targets that are based on scientific consensus/findings of the IPCC”. The application judge noted the gap between the Target and international standards as follows:While ... it is not this Court’s role to determine how Ontario’s “fair” share of the remaining carbon budget should be calculated, this Court can rely on the scientific consensus that [greenhouse gas emissions] must be reduced by approximately 45% below 2010 levels by 2030, and must reach “net zero” by 2050 in order to limited global average surface warming to 1.5 [degrees Celsius] and to avoid the significantly more deleterious impacts of climate change. …[I]n order to reduce its emissions by 45% by 2030 relative to the 2010 level, Ontario would have to reduce its emissions by approximately 52% below 2005 levels by 2030. This would require a 73% increase of the Target. Put differently, the reductions contemplated by the Target will only fulfil approximately 58% of the need to reduce [greenhouse gas emissions] by approximately 45% below 2010 levels by 2030. [73] The application judge did not determine the question of remedy because of her dismissal of the application.
[74] If the application is ultimately successful, the question of remedy can be determined by the court. While we do not wish to foreclose the range of potential remedies that may be appropriate, we note that ordering Ontario to produce a constitutionally compliant Plan and Target, for instance, is no different than in Khadr, where the Supreme Court left it to Canada to determine the precise Charter compliant steps it needed to take. Similarly, in Chaoulli, while finding Charter breaches, McLachlin C.J., Major and Bastarache JJ. did not order what exact measures the Quebec government was required to implement in order to render its health care scheme Charter compliant.[2] Whether a similar or different remedy would be appropriate in this case if the application is successful is best left for the judge hearing the application. . R. v. Pike
In R. v. Pike (Ont CA, 2024) the Ontario Court of Appeal considers a Crown appeal of a Charter s.8 search and seizure strike-down of the s.99(1) ['Examination of goods'] Customs Act provision. Here the court considers the s.52(1) Charter remedy for such a strike-down:(iv) Remedy: The Law’s Authorization of Digital Device Searches Is of No Force or Effect
[100] Determining that a law is unconstitutional does not end the court’s work. Instead, it begins a multi-stage process to determine how to remedy the unconstitutionality and provide effective remedies for the claimant and other people whose rights the unconstitutional law violates. The starting points of this analysis are s. 52(1) of the Constitution Act, 1982, which provides that laws are of no force or effect to the extent they are inconsistent with the Constitution’s provisions, and s. 24(1) of the Charter, which authorizes anyone whose Charter rights or freedoms have been violated to seek an appropriate and just remedy.
[101] The Constitution’s remedy provisions require us to make up to five decisions. First, we must determine the extent to which the law is unconstitutional and whether to declare the entire law inoperative under s. 52(1) or grant a narrower remedy that is tailored to the breadth of the violation: Ontario (Attorney General) v. G., 2020 SCC 38, [2020] 3 S.C.R. 629, at para. 108, 112. Second, we must decide whether to suspend the declaration of unconstitutionality, meaning to delay it from taking effect immediately, and, if so, for how long: G., at paras. 117, 134-135. Third, we must resolve whether the declaration should be prospective or retrospective, meaning whether the law is only inoperative from the time of the declaration onwards or is instead inoperative from the time it was enacted: R. v. Albashir, 2021 SCC 48, 464 D.L.R. (4th) 199, at paras. 44-53, per Karakatsanis J., and at para. 84, per Rowe J. (dissenting but not on this point). Fourth, if we issue a suspended declaration, we must choose whether, as a s. 24(1) Charter remedy, to exempt the claimant from it, meaning that the law will be treated as of no force and effect as applied to the claimant: G., at paras. 140-152. Finally, if we issue a suspended and prospective declaration, we should provide guidance on the circumstances in which other people, who were subject to the unconstitutional law before it was declared unconstitutional or during the suspension period, can seek a s. 24(1) remedy: Albashir, at paras. 62-71. . Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
Here the court briefly reviews the s.52(1) invalidity remedy of the Charter [s.52(1)]:[33] Section 52(1) provides that 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”.
[34] A declaration of invalidity under s. 52(1) is the “first and most important remedy” when dealing with unconstitutional legislation (Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 1). Section 52(1) establishes the supremacy of the Constitution and empowers courts to declare legislation “of no force or effect” in part or in full. This remedy allows courts to protect Charter rights while respecting the distinct role of the legislature in our constitutional order (Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, at p. 715; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at paras. 84-99). . Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
Here the court considers the argument and sometimes presumption that s.24(1) 'general' Charter remedies (which include Charter damages) are not available where a s.52(1) declaration of invalidity has already been made:[44] First, Canada relies on the availability of an alternative remedy. Canada asserts that the availability of a declaration of invalidity under s. 52(1) will always render damages inappropriate and unjust. Canada asserts that damages will never be appropriate for the enactment of legislation subsequently declared unconstitutional because the declaration of unconstitutionality will always be sufficient. Canada submits that judicial review of a decision under the invalid law may also be appropriate in certain cases.
[45] While there is a general presumption against combining remedies under ss. 24(1) and 52(1) (Schachter, at p. 720; Mackin, at paras. 78-81), there is no categorical restriction. This Court has instead adopted a functional and flexible approach to combining remedies that is driven by principled and purposive considerations (Ferguson, at para. 53; G, at para. 147; Roach, Constitutional Remedies, at §§ 3:8-3:18). It is true that the existence of an alternative remedy is a countervailing consideration (Ward, at para. 33). However, the concern with alternative remedies is to avoid duplication and double recovery (para. 35; Brazeau v. Canada (Attorney General), 2020 ONCA 184, 149 O.R. (3d) 705, at para. 43). Provided an award of Charter damages is not duplicative, the potential to combine declarations and damages must remain available in situations where a declaration would fail to satisfy the functional need for compensation, vindication or to meaningfully deter future breaches (Albashir, at paras. 61-67; Ward, at para. 56; see also P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 40:13). In some cases, a declaration of invalidity alone may be an insufficient and even hollow remedy. The availability of a declaration under s. 52(1) cannot absolutely displace a claim for damages under s. 24(1). The same is true for the availability of judicial review for a decision under the invalid law.
....
[81] First, parliamentary sovereignty is not undermined by the Mackin threshold. As noted above, parliamentary sovereignty does not mean that Parliament is above the Constitution. Parliament remains subject to the constraints and accountability mechanisms of the Constitution, including the Charter. By the text of s. 32(1), the Charter specifically applies to Parliament and the provincial legislatures. The supremacy of the Constitution in relation to Parliament is well recognized in each application of s. 52 of the Constitution Act, 1982. Limited immunity does not impair Parliament’s power to make and repeal laws within the confines of the Constitution. . 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. . Schachter v. Canada [contrasting Charter s.24(1) and s.52(1)]
In Schachter v. Canada (SCC, 2025) the Supreme Court of Canada allowed a Crown appeal regarding the appropriate Charter remedy, this from an appeal dismissal at the Federal Court of Appeal, this from a Federal Court ruling for "declaratory relief under s. 24(1), extending to natural parents the same [SS: EI] benefits as were granted to adoptive parents under s. 32".
Here the court delineates the s.24(1) 'individual' and s.52(1) declaration remedies, and the rare cases where they may both be available:III.Section 24(1)
A.Section 24(1) Alone
Where s. 52 of the Constitution Act, 1982 is not engaged, a remedy under s. 24(1) of the Charter may nonetheless be available. This will be the case where the statute or provision in question is not in and of itself unconstitutional, but some action taken under it infringes a person's Charter rights. Section 24(1) would there provide for an individual remedy for the person whose rights have been so infringed.
This course of action has been described as "reading down as an interpretive technique", but it is not reading down in any real sense and ought not to be confused with the practice of reading down as referred to above. It is, rather, founded upon a presumption of constitutionality. It comes into play when the text of the provision in question supports a constitutional interpretation and the violative action taken under it thereby falls outside the jurisdiction conferred by the provision. I held that this was the case in Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, when I determined that a provision which provided a labour adjudicator with discretion to make a range of orders could not have been intended to provide him with the discretion to make unconstitutional orders. The legislation itself was not unconstitutional and s. 52 was not engaged, but the aggrieved party was clearly entitled to an individual remedy under s. 24(1).
B.Section 24(1) in Conjunction with Section 52
An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with action under s. 52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52, that will be the end of the matter. No retroactive s. 24 remedy will be available. It follows that where the declaration of invalidity is temporarily suspended, a s. 24 remedy will not often be available either. To allow for s. 24 remedies during the period of suspension would be tantamount to giving the declaration of invalidity retroactive effect. Finally, if a court takes the course of reading down or in, a s. 24 remedy would probably only duplicate the relief flowing from the action that court has already taken.
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