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Suspended invalidity orders out of sync with Constitution

|Written By Lorraine Weinrib

Constitutional rights protection mandates transformation of the roles and responsibilities of all public institutions. Judicial authority, indeed judicial obligation, to cure Charter infringements stands at the core of the project, as do parallel responsibilities of legislatures and the executive.

Second Opinion by Lorraine Weinrib

Section 52 of the Constitution Act frames this institutional mandate by affirming the supremacy of the Constitution, including the Charter of Rights and Freedoms, and the invalidity of inconsistent ordinary law. Section 24 of the Charter fills out the picture by establishing access to the courts and wide remedial authority.

In Schachter (1992), the Supreme Court provided a blueprint for remedial orders under the Charter based on its status as supreme law, its rights-protecting function, and these two provisions.

Former chief justice Antonio Lamer designated declarations of invalidity as the standard remedy and noted when a suspended remedy might be warranted: to protect public safety or the rule of law or to preserve entitlement to a defective benefit scheme. Deference to the ordinary legislative policy-making role did not warrant such delay.

Nonetheless, the Supreme Court now regularly issues suspended orders of invalidity to afford legislatures time to reflect upon alternative constitutionally valid arrangements, to gather information and expert opinion, and to consult affected persons and groups.

The delayed orders do not necessarily assure improved deliberation or democratic engagement. Upon examination, they appear to undermine the new constitutional duties of legislatures and the executive.

First, delayed orders authorize continuation of the unconstitutional status quo. Rights protection is thus temporally contracted.

Secondly, suspended orders of invalidity leave the successful litigant without a specific remedy despite their success on the legal issues in question. This result undermines the very reason that we open the door of the courts to those whose rights have been infringed or denied generally and prefer "real" litigants to public interest group as Charter litigators.

Thirdly, such orders have the effect of denying remedies to many other people and groups whose Charter rights have been infringed. A declaration of invalidity operating immediately usually nullifies the impugned law ab initio. In contrast, a suspended order will likely never take effect because legislation enacted to remedy the constitutional infirmity will eliminate its statutory basis.

Fourth, governments have no strong incentive to avoid and remedy Charter infringements proactively if they do not have to consider the consequences of losing a case until they have actually lost it.

Fifth, delayed orders leave in place a Charter-infringing legal baseline, which may undermine the quality of deliberation and democratic engagement. The experience of full legal access to abortion (after Morgentaler) and to equal marriage (after Halpern) might have broadened the acceptance of law reform measures otherwise considered unacceptable due to their novelty or repugnance.

What can be done?

Professor Bruce Ryder, of Osgoode Hall Law School, has suggested that governments bear the burden of establishing the need for a suspended declaration, on the Schachter model. When suspension is warranted, he adds, the courts should consider providing remedial relief as is appropriate for the currency of the suspension, e.g., by granting constitutional exemptions.

Law professors Sujit Choudhry and Kent Roach, of the University of Toronto, propose that courts presume the retroactive operation of legislation designed to cure a Charter defect. In addition, successful

litigants should receive an order of solicitor-and-client costs if they enjoy no remedial relief.

These proposals would alleviate some of the concerns raised by the practice of granting suspended declarations as a rule. They do not, however, address the root issue.

The current practice reflects the view that the Charter does not restructure institutional roles. It suggests that Charter compliance is a matter of working out policy preferences through the ordinary political process, free of the immediate judicial imposition of the constitutional norm.

Since the reasons for the current practice seem out of sync with our constitutional arrangements, we should return to the framework delineated in Schachter. Within that framework, rights protection stands at the core of our constitutional order, shaping the powers and structuring the responsibilities of all state institutions.

Lorraine E. Weinrib is a professor at the Faculty of Law, University of Toronto.

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