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A bill becoming law isn't the end of the story — it's often the start of the next one. If a law violates the Constitution, courts can strike it down, and they regularly do. This explainer walks the path a constitutional challenge takes: who can bring one, how it climbs from a trial court to the Supreme Court of Canada, what "reading down" and "striking down" mean, and the override Parliament can reach for to have the last word.
In Canada, passing a law does not make it unchallengeable. Because the Constitution — including the Charter of Rights and Freedoms and the division of powers between Parliament and the provinces — is the supreme law, courts can declare a statute invalid if it conflicts with the Constitution. A challenge typically begins when someone with standing (a person directly affected, or a public-interest litigant granted standing) sues, often after being charged under the law or directly harmed by it. The case starts in a trial court (a superior court of a province, or the Federal Court), where evidence is heard and a first ruling issued; it can then be appealed to the provincial Court of Appeal and, with permission (leave), to the Supreme Court of Canada, whose decision is final and binding nationwide. Governments can also skip the litigation route and ask a court directly for an advisory opinion through a "reference." If a court finds a law unconstitutional, its remedies range from "reading down" or "reading in" (narrowing or adding words to save the law) to striking it down in whole or in part, sometimes with a suspended declaration giving Parliament time to fix it. Two doctrines shape the whole process: section 1 of the Charter, which lets the government justify a rights limit as reasonable (the Oakes test), and section 33, the notwithstanding clause, which lets a legislature override certain Charter rulings. The result is a continuing dialogue between Parliament and the courts — laws this site tracks through the House are frequently tested, narrowed, or struck afterward in a courtroom.
In Canada, **the Constitution is the supreme law** — section 52 of the Constitution Act, 1982 says any law inconsistent with it is, to the extent of the inconsistency, **of no force or effect.**
That one sentence is why a bill passing the House of Commons isn't the end of the matter. A statute has to be consistent with the Constitution, which includes:
- the **Charter of Rights and Freedoms** (does the law violate a protected right?), and - the **division of powers** (did the level of government that passed it — federal or provincial — actually have authority over the subject?).
If a law fails either test, a court can **declare it invalid.** This isn't exotic; it's a routine, foundational feature of the system. Parliament makes the law; the courts measure it against the Constitution; and laws this site tracks through the House are frequently tested — and sometimes narrowed or struck — in a courtroom afterward.
A constitutional challenge needs two things: **someone with standing** and **a court to hear it.**
**Standing** — the right to bring the case — usually belongs to a person **directly affected** by the law. Very often that's someone **charged under it** (a criminal defendant arguing the offence is unconstitutional) or directly harmed by it. Courts can also grant **public-interest standing** to organizations or individuals raising a serious constitutional issue that might otherwise never reach a court — a doorway that lets civil-liberties and advocacy groups bring test cases.
The case **starts in a trial court** — typically a **superior court of a province** (for most matters) or the **Federal Court** (for federal administrative and some statutory matters). There, evidence is heard, witnesses and experts testify, and a judge issues the first ruling on whether the law is constitutional.
That first ruling is rarely the last. It's the bottom rung of a ladder.
From the trial court, the losing side can climb:
1. **Trial court** — first decision on the facts and the constitutional question. 2. **Provincial Court of Appeal** (or the Federal Court of Appeal) — reviews the trial decision for error. Three (sometimes five) judges; no new evidence, argument on the law. 3. **Supreme Court of Canada** — the final court. Crucially, the SCC hears most appeals **only with permission ("leave")**, which it grants for cases of national importance. Its rulings are **final and binding across the entire country** — every court, every government, every Canadian.
There's also a shortcut that skips the lawsuit entirely: a **reference.** A government (federal or provincial) can ask a court — including the Supreme Court directly — for an **advisory opinion** on a constitutional question, without waiting for someone to be charged or harmed. The 1998 Quebec Secession Reference (covered in our secession explainer) and the 2014 Senate Reform Reference are examples. Reference opinions are technically advisory but are treated as authoritative.
This ladder is why a single law can be argued for years, and why a Supreme Court ruling — even on one person's case — can reshape the law for everyone.
When a court finds a law unconstitutional, it has a **range of remedies**, not just a hammer:
- **Striking down** — declaring the law (or the offending part) invalid. The strongest remedy. - **Reading down** — interpreting a provision narrowly so it stays within constitutional limits, saving the rest. - **Reading in** — adding words the legislature left out (for example, extending a benefit to a group wrongly excluded) to cure a Charter defect. - **Suspended declaration of invalidity** — striking the law down but **delaying** the effect (say, 12 months) to give Parliament time to write a constitutional replacement, avoiding a sudden legal vacuum.
And Parliament is not powerless in response. The relationship is often described as a **"dialogue":**
- Most often, the government **amends the law** to fix what the court flagged. - Under **section 1** of the Charter, the government can defend a rights limit as a **reasonable limit** in the first place (the Oakes test) — sometimes the law survives. - For certain Charter rights, a legislature can reach for **section 33, the notwithstanding clause** ([our explainer](/news/notwithstanding-clause-in-plain-english)), re-enacting a law to operate **despite** a ruling that it breaches sections 2 or 7–15 — though this can't touch division-of-powers, democratic, mobility, or language rulings.
So the full picture is two branches in motion: **Parliament writes and votes; the courts test against the Constitution; and each can, in defined ways, respond to the other.** For readers of this site, that means the recorded vote in the House is one act of a longer play — the courtroom is frequently where a law's real fate, and the accountability for it, finally lands.
Canadians invoke "their Charter rights" constantly, but few could name what the Charter actually contains. It's shorter than most people think — a few dozen sections covering fundamental freedoms, democratic and mobility rights, legal protections, equality, and language. This is a plain-English tour of what each part guarantees, plus the two clauses that shape how all of it works: the reasonable-limits test and the notwithstanding clause.
Royal assent, prorogation, dissolution, appointing the Prime Minister: on paper, the Governor General holds the levers of the Canadian state. In practice, convention requires acting on the Prime Minister's advice in virtually every case. The gap between the paper power and the practice is governed by the "reserve powers" — used once, in 1926, with consequences that still define the office's limits a century later.
Section 33 of the Charter of Rights and Freedoms — the "notwithstanding clause" — lets Parliament or a provincial legislature override certain Charter rights for five years at a time. It is one of the most-debated and most-misunderstood features of the Canadian Constitution. This article explains exactly what it does, what rights it can and cannot override, when it has been used, and why it exists.
About this article
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<article>
<h1>Parliament Passes a Law. Then What? How Canadians Actually Get a Law Struck Down in Court.</h1>
<p><em>By Parliament Audit · June 23, 2026 · 6 min read</em></p>
<p><strong>In Canada, passing a law does not make it unchallengeable. Because the Constitution — including the Charter of Rights and Freedoms and the division of powers between Parliament and the provinces — is the supreme law, courts can declare a statute invalid if it conflicts with the Constitution. A challenge typically begins when someone with standing (a person directly affected, or a public-interest litigant granted standing) sues, often after being charged under the law or directly harmed by it. The case starts in a trial court (a superior court of a province, or the Federal Court), where evidence is heard and a first ruling issued; it can then be appealed to the provincial Court of Appeal and, with permission (leave), to the Supreme Court of Canada, whose decision is final and binding nationwide. Governments can also skip the litigation route and ask a court directly for an advisory opinion through a "reference." If a court finds a law unconstitutional, its remedies range from "reading down" or "reading in" (narrowing or adding words to save the law) to striking it down in whole or in part, sometimes with a suspended declaration giving Parliament time to fix it. Two doctrines shape the whole process: section 1 of the Charter, which lets the government justify a rights limit as reasonable (the Oakes test), and section 33, the notwithstanding clause, which lets a legislature override certain Charter rulings. The result is a continuing dialogue between Parliament and the courts — laws this site tracks through the House are frequently tested, narrowed, or struck afterward in a courtroom.</strong></p>
<h2>Why a law is never truly settled</h2>
<p>In Canada, **the Constitution is the supreme law** — section 52 of the Constitution Act, 1982 says any law inconsistent with it is, to the extent of the inconsistency, **of no force or effect.**</p>
<p>That one sentence is why a bill passing the House of Commons isn't the end of the matter. A statute has to be consistent with the Constitution, which includes:</p>
<p>- the **Charter of Rights and Freedoms** (does the law violate a protected right?), and
- the **division of powers** (did the level of government that passed it — federal or provincial — actually have authority over the subject?).</p>
<p>If a law fails either test, a court can **declare it invalid.** This isn't exotic; it's a routine, foundational feature of the system. Parliament makes the law; the courts measure it against the Constitution; and laws this site tracks through the House are frequently tested — and sometimes narrowed or struck — in a courtroom afterward.</p>
<h2>Who can challenge, and where it starts</h2>
<p>A constitutional challenge needs two things: **someone with standing** and **a court to hear it.**</p>
<p>**Standing** — the right to bring the case — usually belongs to a person **directly affected** by the law. Very often that's someone **charged under it** (a criminal defendant arguing the offence is unconstitutional) or directly harmed by it. Courts can also grant **public-interest standing** to organizations or individuals raising a serious constitutional issue that might otherwise never reach a court — a doorway that lets civil-liberties and advocacy groups bring test cases.</p>
<p>The case **starts in a trial court** — typically a **superior court of a province** (for most matters) or the **Federal Court** (for federal administrative and some statutory matters). There, evidence is heard, witnesses and experts testify, and a judge issues the first ruling on whether the law is constitutional.</p>
<p>That first ruling is rarely the last. It's the bottom rung of a ladder.</p>
<h2>Up the ladder to the Supreme Court</h2>
<p>From the trial court, the losing side can climb:</p>
<p>1. **Trial court** — first decision on the facts and the constitutional question.
2. **Provincial Court of Appeal** (or the Federal Court of Appeal) — reviews the trial decision for error. Three (sometimes five) judges; no new evidence, argument on the law.
3. **Supreme Court of Canada** — the final court. Crucially, the SCC hears most appeals **only with permission ("leave")**, which it grants for cases of national importance. Its rulings are **final and binding across the entire country** — every court, every government, every Canadian.</p>
<p>There's also a shortcut that skips the lawsuit entirely: a **reference.** A government (federal or provincial) can ask a court — including the Supreme Court directly — for an **advisory opinion** on a constitutional question, without waiting for someone to be charged or harmed. The 1998 Quebec Secession Reference (covered in our secession explainer) and the 2014 Senate Reform Reference are examples. Reference opinions are technically advisory but are treated as authoritative.</p>
<p>This ladder is why a single law can be argued for years, and why a Supreme Court ruling — even on one person's case — can reshape the law for everyone.</p>
<h2>What a court can do — and Parliament's answer</h2>
<p>When a court finds a law unconstitutional, it has a **range of remedies**, not just a hammer:</p>
<p>- **Striking down** — declaring the law (or the offending part) invalid. The strongest remedy.
- **Reading down** — interpreting a provision narrowly so it stays within constitutional limits, saving the rest.
- **Reading in** — adding words the legislature left out (for example, extending a benefit to a group wrongly excluded) to cure a Charter defect.
- **Suspended declaration of invalidity** — striking the law down but **delaying** the effect (say, 12 months) to give Parliament time to write a constitutional replacement, avoiding a sudden legal vacuum.</p>
<p>And Parliament is not powerless in response. The relationship is often described as a **"dialogue":**</p>
<p>- Most often, the government **amends the law** to fix what the court flagged.
- Under **section 1** of the Charter, the government can defend a rights limit as a **reasonable limit** in the first place (the Oakes test) — sometimes the law survives.
- For certain Charter rights, a legislature can reach for **section 33, the notwithstanding clause** ([our explainer](/news/notwithstanding-clause-in-plain-english)), re-enacting a law to operate **despite** a ruling that it breaches sections 2 or 7–15 — though this can't touch division-of-powers, democratic, mobility, or language rulings.</p>
<p>So the full picture is two branches in motion: **Parliament writes and votes; the courts test against the Constitution; and each can, in defined ways, respond to the other.** For readers of this site, that means the recorded vote in the House is one act of a longer play — the courtroom is frequently where a law's real fate, and the accountability for it, finally lands.</p>
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Originally published by <a href="https://parliamentaudit.ca/news/how-a-law-gets-challenged-in-court-charter-challenges-explained">Parliament Audit</a>
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