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Constitution (Non-Charter) - s.52 Declarations of Invalidity (5). Canada (Attorney General) v. Canadian Civil Liberties Association ['reading-down']
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
Here the court considers the constitutional technique of 'reading down', a derivative of the 'presumption of constitutionality' principle:[247] A third, and most important, reason to require a robust justification for the finding of a national emergency rests with the constitutional underpinning of the Act itself. While the AGC is correct that no party has challenged the constitutional validity of the Act per se on division of powers grounds, the interpretation (especially with respect to the definition of "“national emergency”" in section 3 of the Act) must still be informed by and consistent with the distribution of legislative powers as found in the Constitution Act, 1867. An interpretation of the Act or of one of its provisions that would bring it outside the confines of the "“national emergency”" branch of the introductory part of section 91 must be rejected and could certainly not be found to be a reasonable exercise of the powers conferred on Cabinet by Parliament.
[248] This is a well-established principle of Canadian constitutional law, and it has often been referred to as the "“reading down”" doctrine. It derives from the presumption of constitutionality, to the extent that the enacting legislative body is presumed to have meant to enact a statute which does not transgress the limits of its constitutional powers. For example, the Federal Courts Act has been read down to exclude from the jurisdiction of the Federal Court cases that are governed by provincial law; that interpretation was mandated by section 101 of the Constitution Act, 1867, pursuant to which the Federal Courts Act was enacted, which authorizes the establishment of federal courts only for the purpose of deciding cases governed by federal law: see Quebec North Shore Paper v. C.P. Ltd., 1976 CanLII 10 (SCC), [1977] 2 S.C.R. 1054. For other examples, see: Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 S.C.R. 285; Clark v. Canadian National Railway Co., 1988 CanLII 18 (SCC), [1988] 2 S.C.R. 680; Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3. See also: P.W. Hogg and W. Wright, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters Canada, 2021), section 15.15.
[249] In Re: Anti-Inflation Act, 1976 CanLII 16 (SCC), [1976] 2 S.C.R. 373, Justice Beetz (writing for himself and Justice de Grandpré) characterized the dramatic impact that the use of the emergency power has on the normal distribution of powers as "“a temporary pro tanto amendment of a federal constitution by the unilateral action of Parliament”" (at p. 463). As a result, he expressed the view in his dissent that courts cannot decide that a suspension of the Constitution is legitimate unless Parliament has expressly invoked that power, despite there being no such requirement in the WMA. Without going as far, Justice Ritchie (writing on behalf of three other judges) shared Justice Beetz’s view with respect to the use of the emergency power. Significantly, he was of the opinion that the conditions required to declare a national emergency existed "“where there can be said to be an urgent and critical situation adversely affecting all Canadians and being of such proportions as to transcend the authority vested in the Legislatures of the Provinces and thus presenting an emergency which can only be effectively dealt with by Parliament”" in the exercise of its emergency power (at p. 436).
[250] Interestingly, the wording of the definition of a "“national emergency”" at section 3 of the Act closely tracks the language used by Justices Ritchie and Beetz in Re: Anti-Inflation Act. This is further indication, in our view, that Parliament intended that power to be used sparingly and in the most exceptional circumstances. Because the Act authorizes Cabinet to intrude into core areas of provincial jurisdictions, it must only be used as a last resort if the federal nature of the Constitution is to be preserved. This is consistent with the addition, at the Committee stage, not only of a statutory definition of a "“national emergency”", but also of the requirement that the urgent and critical situation be of the sort that cannot be effectively dealt with under any other law of Canada (the "“last resort”" clause). These amendments came about as a response to those who were of the view that the original Bill C-77 did not include adequate safeguards to circumscribe the declaration of an emergency. At the Third Reading of the Bill, Mr. Bud Bradley (Parliamentary Secretary to the Minister of National Defence) explained that clause in the following terms:The definition of “national emergency” as now formulated captures the four elements common to all the proposals put to the committee. It represents the distilled consensus of the collective wisdom of the highly qualified people whose advice we were fortunate to receive. The four elements incorporated in a new definition of national emergency are: first, the notion of urgency; second, the temporary character of the abnormal situation; third, the inadequacy of the normal legal framework; and finally, the presence of a serious threat, either to the security of the country as a whole, or to public safety in circumstances which exceed provincial capabilities. . Apitipi Anicinapek Nation v. Ontario [IMPORTANT re constitutional Divisional Court jurisdiction]
In Apitipi Anicinapek Nation v. Ontario (Ont Div Ct, 2025) the Ontario Divisional Court allowed a Crown motion, here seeking "to quash part of the underlying application for judicial review for lack of jurisdiction".
The court considers whether it (as the Divisional Court in a JR) has jurisdiction to consider a Constitution Act s.52(1) declaration remedy, here in an indigenous context:[15] The moving parties therefore move to strike out those parts of the notice of application for judicial review that seek relief under s. 52 of the Constitution Act, 1982, as set out in the notice of motion, and the related notice of constitutional question. The AAN disagrees, submitting that the Divisional Court has jurisdiction.
[16] The substantive jurisdiction of the Divisional Court is statutory. It is a court of review. It has statutory appellate jurisdiction as set out in the Courts of Justice Act, R.S.O. 1990, c. C.43 (the CJA) and other statutes, which is not at issue here. Its jurisdiction on applications for judicial review, which is at issue here, is found in the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the JRPA).
[17] Contrary to the AAN’s submissions, the Divisional Court’s status as a Branch of the Superior Court does not transform its substantive jurisdiction to include the broad inherent jurisdiction of a Superior Court judge. Nor does r. 14.05 of the Rules of Civil Procedure expand the Court’s substantive jurisdiction on an application for judicial review: J.N. v. Durham Regional Police Service, 2012 ONCA 428, at para. 16.
[18] Section 2 of the JRPA sets out this Court’s jurisdiction for an application for judicial review. It is limited to applications for an order “in the nature of mandamus, prohibition or certiorari”, and other proceedings for a declaration or injunction “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power”. The Constitutional Challenge put forward in this application for judicial review does not fall within this jurisdiction.
[19] The JRPA defines “statutory power” and “statutory power of decision” in s. 1. The closest the Constitutional Challenge comes to falling within that definition is the general reference to regulations as part of the LARIA “Regime”. However, the application for judicial review does not assert that any regulation made under LARIA is unauthorized or invalid. The AAN is concerned about the absence of a statutory power to proceed with its proposal to the MNR under LARIA. The AAN seeks an order that the LARIA Regime be amended within one year after the requested s. 52 declaration to provide for the duty to consult under s. 35 to be triggered and met.
[20] With respect to s. 35 of the Constitution Act, 1982, legislation and the exercise of statutory powers must comply with s. 35. However, s. 35 is not itself a statutory power under the JRPA: Whiteduck v. Ontario, 2023 ONCA 543, para. 60; JRPA, s. 1; Legislation Act, 2006, S.O. 2006, c. 21, Sch F, s. 87.
[21] Further, the legislative process at large is not the exercise of a statutory power: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at paras. 2, 18, 33, 38, per Karakatsanis J; Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks), 2022 ONSC 5161 (Div. Ct.), at para. 38.
[22] Nor is this a question of which procedure is preferrable. “Once jurisdiction is determined, then the procedure to be followed is the procedure prescribed in the forum with jurisdiction”: Alford v. Law Society of Upper Canada, 2018 ONSC 4269, at para. 45.
[23] The AAN further submits that this Court may hear the Constitutional Challenge because it is ancillary to the judicial review of the Decision. Most germane are two decisions of this Court: Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks), 2022 ONSC 6859 and Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks), 2023 ONSC 5708.
[24] In Mississauga First Nation, at para. 54, the Court found that a constitutional challenge to amendments to legislation was ancillary to and dependent on the determination of the duty to consult in a judicial review application. However, in that case, the Court found that there was a refusal to exercise a statutory power, based on an unreasonable delay of about three years in addressing the application for judicial review, during which time the legislation was amended to remove a key statutory provision. Similarly, in Regional Municipality of York, an environmental assessment was pending for several years during which an amendment was passed that rendered the matter moot.
[25] We do not have like circumstances in this case. There was no inter-related step taken after the Decision to undermine the challenge to the Decision in this application for judicial review. The Constitutional Challenge to the entire Regime, and related request that the Regime be amended, is not merely support for the judicial review. It is a request for broad primary relief including legislative amendments and should be decided by a Superior Court judge. The provincial superior courts have always occupied a position of prime importance to rule on the constitutional validity of legislation: MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, at pp. 752-753. The cases relied upon by the AAN do not approach what would be needed to show that the Constitutional Challenge is ancillary to this application for judicial review.
[26] Having considered all the AAN submissions, we conclude that the Constitutional Challenge plainly does not fall within the jurisdiction of this Court under s. 2(1) of the JRPA. That claim is properly addressed before the Superior Court, not in this application for judicial review.
[27] In reaching this decision, we have taken into account the importance of s. 35 of the Constitution Act, 1982, and all that it serves, as well as the importance of access to justice. While those principles do not expand the Court’s jurisdiction as broadly as is suggested by the AAN on this motion, they are reasons to exercise our jurisdiction to transfer the Constitutional Challenge to the Superior Court along with terms to facilitate a smooth transfer. . Opsis Airport Services Inc. v. Quebec (Attorney General) [remedy]
In Opsis Airport Services Inc. v. Quebec (Attorney General) (SCC, 2025) the Supreme Court of Canada allowed appeals, here respecting "the contours of the doctrine of interjurisdictional immunity", where a Quebec provincial statute was applied against a federal undertaking.
The court finds that the doctrine of interjurisdictional immunity applies, and grants a read-down s.52(1) declaration remedy:[84] From this perspective, it seems clear that the Quebec legislature would not have enacted the PSA without the impairing provisions, which are truly unseverable from the rest of the statute and essential to the whole of which they form part. Since a targeted declaration of inapplicability might change the nature of the legislative scheme intended by the legislature, the appropriate remedy is to read down the statute as a whole so that the appellants are excluded from its scope (see, by analogy, Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at para. 114; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 50‑51).
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