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| Patrick J Ducharme |
Section 52(1) of the Constitution Act, 1982, provides:
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.
Applications to strike down legislation are made pursuant to this section.
Unlike all other Charter challenges, section 52 can be used to challenge the constitutional validity of any law, even if the person challenging the law is not directly affected by that law.
These applications must comply with Rule 27 of the Rules of Criminal Practice. Applications must be served on the Constitutional Law Division of the Ministry of the Attorney General of Ontario and the Regional Office of the Attorney General of Canada at Toronto or the office of the Attorney General of Canada at Ottawa and the office of the prosecutor having carriage of the proceedings.
All trial courts have the power to declare law unconstitutional, pursuant to section 52 of the Constitution Act of 1982.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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