This section provides that 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.” This section permits an accused, including a Corporation, to seek an order from the court that legislation is invalid by reason of a violation of the Charter.
Other than a Judge presiding at a preliminary inquiry1, every Judge from the lowest level of court, Provincial and Territorial courts included, has the power to entertain a challenge to the validity of legislation. And, if the application is successful, to grant a remedy. The remedy for an application pursuant to section 52 is a declaration that the legislation challenged is unconstitutional and therefore not binding on Canadians generally, and not binding on the Applicant on the Charter challenge specifically.
Section 52 sets the Constitution Act above all other law. It is “the supreme law of Canada.” Any other law, new or old, that is inconsistent with the provisions of the Charter cannot stand. Section 52 explicitly states that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Any law, determined to be inconsistent with the Charter, is declared unconstitutional. The government and policing authorities cannot prosecute or seek penalties against anyone using an unconstitutional law.
The prosecution is always entitled to respond to a Charter challenge to the constitutional validity of any law. Charter applications pursuant to section 52 require that notice be sent by the applicant challenging the law to the Attorney General for Canada and to the Attorneys General for each Province or Territory, or, if there is no appointed Attorney General, then to the highest legal representative in each Province or Territory, permitting these representatives of the various governments an opportunity to respond to the Charter challenge.
The applicant should expect that each proper representative of the governments having an interest in upholding the law that is challenged, will respond. The hearing of the Charter challenge invariably pits the representatives of the government(s), Federal and/or Provincial and Territorial arguing to uphold the constitutional validity of the law and the applicant arguing that the law is unconstitutional. The grounds for the applicant’s claim of unconstitutionality will be found in the specific rights referred to in sections 8 to 14 of the Charter.
Section 32 of the Charter provides that it applies to the Parliament and Government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories, and to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
If the Provincial court is where the accused is being tried it has the power to declare legislation invalid in criminal cases by using section 52 of the Constitution Act.2 And, a Corporation may challenge the constitutionality of a law using section 52 of the Constitution Act because section 52 is not limited to the rights of a person, and is therefore, unlike section 7 rights, that are limited to a person. The claim of a Corporation using section 52 would be that the Corporation is entitled to defend the charges against it on the basis that the legislation under which the charge(s) is made is unconstitutional.3
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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