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Statutes and Regulations - Temporal Application of Legislation (2)

. R. v. Albashir

In R. v. Albashir (SCC, 2021) the Supreme Court of Canada considered the nature of a delayed constitutional declaration of invalidity, contrasting the temporal application of statutes in the process:

A. Temporal Nature of Remedies

[26] When a court makes a declaration of invalidity under s. 52(1), the temporal effect of that constitutional remedy is rooted in the nature of the remedy itself. Constitutional remedies must be purposively interpreted in their “proper linguistic, philosophic and historical contexts”: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 344. They must also be interpreted in a “generous and expansive” manner that is sensitive to evolving circumstances: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 24; see also R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 52.

[27] When legislation violates a Charter right, three foundational constitutional principles guide the interpretation of constitutional remedies: constitutionalism, the rule of law, and the separation of powers (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3 (P.E.I. Judges Reference (1997)), at paras. 90-95; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 54; G, at paras. 153-59).

[28] Constitutionalism requires that all laws comply with the Constitution as the supreme law of Canada. Section 52(1) of the Constitution Act, 1982, reads:

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.

[29] This supremacy clause has existed in other forms since Canada’s original constitution, the Constitution Act, 1867: Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 482. The Canadian judiciary’s role in reviewing the constitutionality of legislation thus has a considerable history: P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 5:20. In Manitoba Language Reference, the Court explained that “[s]ection 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years”: Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, at p. 746.

[30] When a court finds legislation to be inconsistent with the Constitution, it must consider not only the principle of constitutional supremacy in s. 52(1), but other — at times competing — constitutional imperatives to determine an appropriate remedy: K. Roach, “Principled Remedial Discretion Under the Charter” (2004), 25 S.C.L.R. (2d) 101, at pp. 105 and 111-13. In this way, courts are also guided in their remedial discretion by the principles of the rule of law and the separation of powers. They can take into account, for example, the entitlement of the public to the benefit of legislation, as well as the different institutional roles that courts and legislatures are called to play: G, at para 94. As LeBel and Rothstein JJ. stated for the majority in Hislop, “[t]he text of the Constitution establishes the broad confines of the supreme law, but it is up to the courts to interpret and apply the Constitution in any given context”: para. 114.

[31] Thus, despite the absolute language of s. 52(1), when a court exercises its remedial jurisdiction to grant a declaration of unconstitutionality, it has discretion to give the principle of constitutional supremacy immediate effect or to suspend the declaration for a given period of time: G, at paras. 120-21. In rare circumstances, a compelling public interest will warrant a suspension, although this suspension must not last longer than is necessary for the government to address the constitutional infirmity: G, at paras. 132 and 135.

[32] In the face of unconstitutional legislation, s. 52(1) is not the only remedial provision in the Constitution Act, 1982. Section 24(1) may also provide a remedy:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[33] Unlike a formal declaration under s. 52(1) that renders the legislation invalid, s. 24(1) is an entirely personal remedy that can only be invoked by a claimant alleging a violation of their own constitutional rights: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61.

[34] Thus, the principles of constitutionalism, the rule of law, and the separation of powers shape the remedial relief for legislation that is inconsistent with the Constitution. These foundational principles also establish strong — but rebuttable — presumptions that legislation is prospective and judicial declarations are retroactive.

[35] There is a strong presumption against retroactive application of legislation because the rule of law requires that people be able to order their affairs in light of an established legal order: R. Sullivan, Statutory Interpretation (3rd ed. 2016), at p. 354. As Professor Sullivan aptly puts it, when legislation is retroactive, “the content of the law becomes known only when it is too late to do anything about it”: p. 354. Even so, the rule of law does not prohibit retroactive legislation. When they can do so within the confines of the Charter (for example, when it does not offend the protections of s. 11(g) or (i)), legislatures can decide how and when their laws will apply. It may thus be open to them to correct a constitutional infirmity retroactively.

[36] Choudhry and Roach posit that legislatures have internalized the principles underlying the presumption against retroactivity and are reluctant to enact retroactive legislation as a result: S. Choudhry and K. Roach, “Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies” (2003), 21 S.C.L.R. (2d) 205, at pp. 241-42. Especially when working with remedial legislation that is a direct response to a court’s declaration of constitutional invalidity, I agree with those authors that it would be helpful for the legislatures to turn their mind to the temporal application of their laws and explicitly explain what provision will govern during the transitional period in order to provide certainty and clarity.

[37] No one in this case has argued that the remedial legislation was intended to be retroactive. Thus, in the absence of retroactive legislative intent either explicitly or by necessary implication, the strong presumption that legislation is prospective is not challenged.

[38] Whereas the rule of law dictates a presumption that legislation is prospective, the inverse is true for judicial remedies. Generally, legal determinations of this Court are effective immediately, and all courts are bound to apply this Court’s decisions about the constitutional infirmities of legislation in outstanding matters before them. In this sense, this Court’s decisions are retroactive, applying even to cases arising before the decision. As one author notes, “it is the basic role of courts to decide disputes after they have arisen. That function requires that judicial decisions operate (at least ordinarily) with retroactive effect”: R. J. Traynor, “Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility” (1977), 28 Hastings L.J. 533, at p. 536, quoting P. Mishkin, “The High Court, The Great Writ, and the Due Process of Time and Law” (1965), 79 Harv. L. Rev. 56, at p. 60.

[39] When a court makes a s. 52(1) declaration of invalidity, the same presumption of retroactivity arises. The appellants say that this arises from the Blackstonian theory that judges do not create but merely discover the law so that a constitutionally invalid law is “invalid from the moment it is enacted”: Hogg and Wright, at §58:1, quoting Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 28; see also W. Blackstone, Commentaries on the Laws of England (1765), Book 1, at pp. 69-70; Hislop, at para. 79.

[40] A strict Blackstonian theory, however, cannot easily be reconciled with modern constitutional law. Many fundamental principles that are essential to our constitutional system curtail the retroactive reach of judicial remedies. Res judicata, for example, prevents the reopening of settled matters due to later judicial pronouncements, even maintaining convictions for offences later declared unconstitutional if the accused has exhausted their appeals such that they are no longer “in the judicial system”: R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246, at p. 257; see also R. v. Thomas, 1990 CanLII 141 (SCC), [1990] 1 S.C.R. 713. Similarly, the de facto and qualified immunity doctrines validate and preclude financial liability for government actions taken under laws that are later found to be unconstitutional: K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at ¶ 14.1980; Hislop, at para. 102, citing Guimond v. Quebec (Attorney General), 1996 CanLII 175 (SCC), [1996] 3 S.C.R. 347, and Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405. These doctrines balance the generally retroactive nature of judicial remedies with the need for finality and stability. Finally, it is also difficult to square the Blackstonian view with the judicial discretion to suspend a declaration of invalidity: G, at paras. 87-89. Thus, the theory is subject to numerous exceptions and qualifications. It cannot preclude purely prospective constitutional remedies. Indeed, this has been recognized in many other jurisdictions that have grappled with the Blackstonian theory: In re Spectrum Plus Ltd, [2005] UKHL 41, [2005] 2 A.C. 680, at paras. 17, 35, 41-42, 74 and 161-62; Johnson v. New Jersey, 384 U.S. 719 (1966); Constitution of South Africa, s. 172(b); Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat, [2017] 3 M.L.J. 561 (Federal Court of Malaysia); India Cement Ltd. v. State of Tamil Nadu, A.I.R. 1990 S.C. 85.

[41] That said, the general presumption that declarations of constitutional invalidity have retroactive effect is firmly rooted in principles of constitutional interpretation and s. 52(1).

[42] Section 52(1), the cornerstone of constitutionalism, enshrining the supremacy of the Constitution, must be read in light of all constitutional principles. A s. 52(1) declaration will generally be both immediate and retroactive. Retroactive remedies that immediately apply to everybody who is still “in the system” maximize the protection and vindication of Charter rights, as a general system of delayed prospective remedies would risk leaving those harmed in the past by an unconstitutional law without a remedy: Choudhry and Roach, at pp. 247-48. Furthermore, legislatures would have lesser incentives to ensure that new legislation complies with the Charter if they could rely on the second chances provided by consequence-free prospective declarations: see R. Leckey, “The harms of remedial discretion” (2016), 14 Int’l J. Const. L. 584, at pp. 595-96.

[43] However, that judicial declarations are generally immediate and retroactive does not mean they are necessarily so: Hislop, at para. 86. As I will explain, the rare circumstances and constitutional considerations that warrant a suspended declaration can justify an exception to the retroactive application of declarations where necessary to give effect to the purpose of the suspension.

B. Temporal Nature of Suspended Declarations

[44] When compelling public interests outweigh the continued violation of Charter rights, courts may suspend a declaration of invalidity: G, at paras. 117 and 126. The tool of a suspended declaration allows courts to temper the retroactive effects of a declaration. However, a court’s decision to suspend a declaration does not alter the presumptively retroactive application of the declaration but merely changes when it comes into effect. The presumption of retroactivity persists, although it may be rebutted explicitly or by necessary implication. For example, this Court’s first experience issuing a suspended declaration of invalidity was in Manitoba Language Reference. Nearly all of Manitoba’s legislation was found to be unconstitutional because it was enacted in English only. Because an immediate retroactive remedy would have created a legal vacuum in Manitoba, with catastrophic consequences for the rule of law, the Court suspended its declaration of invalidity to give the legislature time to pass new, constitutionally sound laws: p. 758. Nonetheless, the declaration was retroactive.

[45] In Hislop, this Court explained some circumstances where “judges may rule prospectively”: para. 96. In these circumstances, the presumption of retroactivity is rebutted and a s. 52(1) declaration will operate prospectively. A prospective remedy could be appropriate if there is a “substantial change in the law”: para. 99. Hislop set out some further factors that courts should consider in determining whether to issue a prospective remedy, including good faith government reliance, fairness to the litigants, and whether a retroactive remedy would unduly interfere with the allocation of public resources: para. 100. Hislop was clear that this was not an exhaustive list: para. 100. The question then becomes what other “conditions will justify the crafting of judicial prospective remedies”: para. 86.

[46] In my view, a suspended declaration of invalidity may provide another exception to the presumption of retroactivity where the purpose of the suspension, by necessary implication, requires a purely prospective declaration. Suspended declarations will only issue where the government demonstrates that compelling public interests, grounded in the Constitution, outweigh the continued breach of constitutional rights and require that the legislature have an opportunity to remedy the constitutional infirmity: G, at paras. 133 and 139. Furthermore, declarations of invalidity will be issued only if more tailored remedies, such as reading in, reading down, or severance, are inappropriate: G, at paras. 112 and 114. When these rare and exceptional circumstances arise, a retroactive application of the declaration at the conclusion of the suspension could frustrate the purpose — the compelling public interests — that required a period of transition, creating uncertainty and removing the protection that justified the suspension in the first place. The necessary implication of the suspension may be that the declaration, when it comes into effect, must operate purely prospectively so that it does not defeat the very purpose of the suspension.

There's more in the balance of the case [paras 47-71].

. Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks)

In Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks) (Div Ct, 2021) the Divisional Court considered when a statutory provision could be retroactive:

[55] Section 33.1 is a valid legislative provision with retroactive effect. As described by Ruth Sullivan in Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014),

A provision is retroactive if it is intended to apply to facts that occurred before the legislation came into force as if the legislation had been in force when the facts occurred (at §24.28).

In other words, such legislation is meant to change the legal effect of past events or circumstances (at §25.24).

[56] There is no prohibition against retroactive legislation in Canada, except in criminal law because of s. 11(g) of the Canadian Charter of Rights and Freedoms (see British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 at para. 69, as well, as Hughes v. Liquor Control Board of Ontario, 2019 ONCA 305, 145 O.R. (3d) 401, at para. 35 and Greenpeace # 1, at paras. 78, 101-102).

. R. v. Debassige

In R. v. Debassige (Ont CA, 2021) the Court of Appeal considered the temporal application of amended legislation:

[49] As a matter of general principle, legislation affecting substantive rights is presumed to have prospective effect unless it is possible to discern a clear legislative intent that it apply retrospectively. On the other hand, new procedural legislation designed to govern only the manner in which rights are asserted or enforced, which does not affect the substance of the rights, applies immediately to pending and future cases: R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at para. 10; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, at para. 40.

. R. v. Chouhan

In R. v. Chouhan (SCC, 2021) the Supreme Court of Canada considered the temporal application of procedural and substantive changes to the law:

[87] It thus fell to the courts to sort out the temporal application of the abolition of peremptory challenges. As is generally the case when Parliament fails to include transitional provisions in a legislative amendment, the temporal application of these amendments divided trial courts across the country. The debate centered on principles of statutory interpretation, namely the presumptions that procedural laws apply immediately in all cases, while laws that affect substantive rights can only apply prospectively to cases in which the relevant rights have not yet vested.

[88] Courts in Ontario generally found the amendments to be purely procedural and therefore immediate in their application, meaning that they would govern the jury selection processes for all trials beginning on or after the amendments’ proclamation into force (see R. v. Johnson, 2019 ONSC 6754, 451 C.R.R. (2d) 167; R. v. Muse, 2019 ONSC 6119, 448 C.R.R. (2d) 266; R. v. Lako, 2019 ONSC 5362; R. v. Khan, 2019 ONSC 5646; R. v. McMillan, 2019 ONSC 5616; R. v. Daniel, 2019 ONSC 6920). The trial judge in this proceeding came to the same conclusion, as did some courts in other jurisdictions (see R. v. Cumberland, 2019 NSSC 307; R. v. Stewart, 2019 MBQB 171). Conversely, several courts concluded that the amendments affect substantive rights and therefore cannot apply to pending jury trials, but nevertheless divided on when the amendments applied in a particular case (see R. v. Dorion, 2019 SKQB 266; R. v. Raymond (Ruling #4), 2019 NBQB 203, 379 C.C.C. (3d) 75; R. v. LeBlanc, 2019 NBQB 241, 447 C.R.R. (2d) 227; R. v. S.B., 2019 ABQB 836, 447 C.R.R. (2d) 63; R. v. Bragg, 2019 NLSC 235; R. v. Simard, 2019 QCCS 4394; R. v. Kebede, 2019 ABQB 858, 448 C.R.R. (2d) 102; R. v. Subramaniam, 2019 BCSC 1601, 445 C.R.R. (2d) 49; R. v. Bebawi, 2019 QCCS 4393; R. v. Ismail, 2019 MBQB 150, 447 C.R.R. (2d) 150; R. v. Lindor, 2019 QCCS 4232; R. v. Nazarek, 2019 BCSC 1798).

[89] The decision on appeal is the only decision of an appellate court to have considered this issue. The Court of Appeal overturned the trial judge and determined that the abolition of peremptory challenges affects the substantive right to a jury trial, as provided for in the Criminal Code. The abolition therefore could not apply if, before September 19, 2019, the accused was charged with an offence within the exclusive jurisdiction of the Superior Court, was directly indicted, or elected trial by jury.

[90] Respectfully, we disagree with the Court of Appeal. The abolition of peremptory challenges is purely procedural and therefore applies immediately to all jury selection processes beginning on or after September 19, 2019.

(1) General Principles

[91] Most recently in R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, this Court set out the principles governing the temporal application of new legislation. Justice Deschamps, writing for the majority, summarized the rules of interpretation as follows, at paras. 10-11:

New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256, at pp. 266‑67; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 57; Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, at pp. 331‑32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (Application under s. 83.28 of the Criminal Code (Re), at paras. 57 and 62; Wildman, at p. 331).

Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately (P.‑A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 191). Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, but in discerning whether they affect substantive rights.

[92] Dissenting, but not on this point, Cromwell J. elaborated on the distinction between legislation which is purely procedural and legislation that is substantive or encroaches on substantive rights (paras. 52‑66). From his summary we draw some general guidance. Broadly speaking, procedural amendments depend on litigation to become operable: they alter the method by which a litigant conducts an action or establishes a defence or asserts a right. Conversely, substantive amendments operate independently of litigation: they may have direct implications on an individual’s legal jeopardy by attaching new consequences to past acts or by changing the substantive content of a defence; they may change the content or existence of a right, defence, or cause of action; and they can render previously neutral conduct criminal.