On October 12, 2021, Advocates for the Rule of Law returned to the Supreme Court of Canada in Her Majesty the Queen, et al. v. David Sullivan, et al. and Her Majesty the Queen, et al. v. Thomas Chan, et al. (SCC 39270) to make submissions on the effect of a declaration under s. 52(1) of the Constitution Act, 1982 of a superior court that a law is “of no force or effect”. Asher Honickman and Connor Bildfell (McCarthy Tétrault) appeared on behalf of ARL. The appeals, and ARL’s submissions, are summarized below.
At issue in the Sullivan and Chan appeals is the constitutionality of s. 33.1 of the Criminal Code, which limits the defence of non-mental disorder automatism. After consuming drugs, Messrs. Sullivan and Chan stabbed members of their respective families while in a psychotic state and were charged with criminal offences. At trial, they raised the defence of non-mental disorder automatism and argued that s. 33.1’s limits on that defence limited ss. 7 and 11(d) of the Charter unjustifiably. The trial judge rejected this argument and entered convictions. The Ontario Court of Appeal allowed the appeals and set aside the convictions, holding that s. 33.1 was unconstitutional (2020 ONCA 333).
In the course of its reasons, the Court of Appeal considered whether the trial judge was bound by a prior declaration of unconstitutionality under s. 52(1) of the Constitution Act, 1982 made by the Ontario Superior Court. The Court of Appeal held that the trial judge was not bound by the prior declaration because “the ordinary principles of stare decisis”, under which judges of coordinate (equal) jurisdiction are not bound by each other’s decisions, applied equally to declarations of unconstitutionality (para. 34). The Court of Appeal added that, though not bound, “[o]ther superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision” (para. 38 [emphasis added]).
ARL intervened on the effect of a s. 52(1) declaration of a superior court. In its factum (available here), ARL submitted that such a declaration binds courts of coordinate and subordinate jurisdiction in the province unless and until it is set aside on appeal. ARL identified three constitutional bases for this conclusion:
- The principle of constitutional supremacy enshrined in the text of s. 52(1). A s. 52(1) declaration is no ordinary declaration. Its effect flows from the Constitution, which s. 52(1) confirms is “the supreme law of Canada”. Therefore, unlike an ordinary declaration, a s. 52(1) declaration’s effect is not limited by the ordinary common law principles of stare decisis. Deriving its force from the Constitution itself, a s. 52(1) declaration of a superior court removes the law from the books and establishes the law’s invalidity for all future cases in the province, subject to appeal.
- The Constitution’s remedial scheme. Permitting the government to re-litigate a law’s constitutionality on a case-by-case basis after it has been declared “of no force or effect” would be inconsistent with the Constitution’s remedial scheme. The Constitution contains two remedial provisions: s. 24(1) of the Canadian Charter of Rights and Freedoms and s. 52(1) of the Constitution Act, 1982. A s. 24(1) remedy is personal, whereas a s. 52(1) declaration is global, having effect erga omnes (towards everyone). Permitting case-by-case re-litigation of a law’s constitutionality after it has been declared “of no force or effect” would, in effect, transform a globals. 52(1) remedy into a personals. 24(1) remedy.
- The rule of law. Permitting the possibility of conflicting rulings on a law’s constitutionality after it has been declared “of no force or effect” would undermine the rule of law in at least two ways. First, it would interfere with a person’s ability to know what the law is in advance and govern their conduct accordingly. It would leave individuals in a state of uncertainty about whether a dead law might spring back to life. Second, it would deny the rule-of-law guarantee of equality before the law. It would mean that, within a single jurisdiction, a law could be of no force or effect for some, but of full force and effect for others.
In addition, ARL submitted that, since s. 52(1) declarations have a dramatic effect, superior courts should not grant them lightly. ARL submitted that the principle of judicial minimalism directs that a superior court should not grant a formal s. 52(1) declaration unless: (1) the applicant has expressly sought a s. 52(1) declaration and satisfied all applicable notice requirements; (2) the court is satisfied that the dispute cannot be resolved on other grounds; and (3) the applicant has shown that the impugned law is inconsistent with the Constitution. In the rare case in which one of these conditions is not met but the court nonetheless finds it necessary to rule on the impugned law’s constitutionality, ARL submitted that the court can and should address the issue in its reasons without making a formal s. 52(1) declaration, much as a provincial court may do in accordance with R. v. Lloyd, 2016 SCC 13.
At the hearing (a webcast is available here – ARL’s submissions begin at 4:12:10), the justices engaged actively with ARL. In response to a question about the territorial scope of a s. 52(1) declaration of a superior court, ARL submitted that the effect of a s. 52(1) declaration is constrained by the federal system established by the Constitution. Within this system, the law in one province can — and often does — differ from the law in another. In fact, a single federal law may have different meanings in different provinces. Likewise, a federal law may have different constitutional statuses in different provinces. This is a natural consequence of Canada’s constitutional order.
The Court reserved judgment.
Courts have struggled with the effect of a superior court’s declaration that a law is “of no force or effect” under s. 52(1). ARL is honoured to have assisted Canada’s highest court in resolving this pivotal issue, which has significant implications for Canadian constitutional law and for the Canadian public. ARL awaits the Court’s decision and looks forward to the next opportunity to assist the Court and further the principles of constitutionalism and the rule of law.
ARL would like to thank Connor Bildfell (McCarthy Tétrault LLP) for representing ARL in these appeals. You can access ARL’s factum here, and a webcast of the hearing here (ARL’s submissions begin at 4:12:10).