Tag

Charter challenge

1 article

LegislationJune 23, 20266 min read
Parliament Passes a Law. Then What? How Canadians Actually Get a Law Struck Down in Court.
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.

Parliament Passes a Law. Then What? How Canadians Actually Get a Law Struck Down in Court.

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.