Constitutional Challenges involved both challenges under the Canadian Charter of Rights and Freedoms (the Charter), traditional division of powers challenges (the Constitution Act, 1867), and some provincial legislations such as the Ontario’s Human Rights Code. While the Charter only applies to the government or entities that are deemed to be associated with the government, the Human Right codes applies to both the government as well as the private sector. While Constitutional Challenges are used most prominently in Labor law and criminal law context, they are also used to strike down “unconstitutional” legislations at both federal and provincial levels.
Constitutional Challenges are highly abstract; you are well advised to contact a lawyer for further assistance if you are contemplating raising constitutional challenges in your claim or defence.
But since there are much confusions in this subject area, so here’s a brief summary. Please refer to the Labour Law section regarding the Human Rights Code.
Any las that is found in violation of any part of the Constitution, including the Charter, will be of no force or effect. The Charter deals with Individual Rights and Freedoms, the Constitutional Act, 1867 deals with the division of powers between the Federal and the Provincial governments.
Any person with legal standing may make an application to the Court declaring any provincial or federal law unconstitutional and of no force or effect. There is a rebuttal presumption that a legislation is constitutional unless proven otherwise. When there are two plausible interpretation of a law, the one that supports the law's constitutional validity is to be adopted.
Legislation that overlaps with concerns of other levels of government (i.e. caught by the Constitution Act, 1867) is acceptable, as long as it’s just incidental.
Even if a legislation is deemed to be in violation of the Charter (i.e. caught by the Charter), a remedy can only be achieved if the breach cannot be saved under s. 1 of the Charter.
Please note that while some sections of the Charter apply to everyone in Canada, such as section 7 (life, liberty and security of a person), other sections only apply to citizens and permanent residents such as section 3 (election rights) and section 6 (mobility rights).
Further note that if you raise the constitution challenges in a provincial court, it only makes the legislation in question inapplicable to you and you alone. If you raise the constitution challenges in a federal court, the legislation will be invalidated and be of no force to everyone, including you.
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