Section 52(1) of the Constitution Act, 1982 provides that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”

When the Supreme Court of Canada declares a law invalid under s. 52(1), the law is invalid for all future cases; cannot be enforced; is “null and void, and is effectively removed from the statute books.

Nova Scotia (Workers’ Compensation Board) at para. 31; Canada (Attorney-General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, at para. 82.

However, that is not the case when a superior court makes a declaration of invalidity: the declaration does not determine the validity or enforcement of the statute “for all future cases”. 

R. v. Sullivan, 2020 ONCA 333, at para. 35.

Justice Paciocco, writing for himself and Justice Watt in R. v. Sullivan at para. 38, sets out how the principles of stare decisis operate after a superior court judge has made a s. 52(1) declaration of invalidity.

The application of the principles of stare decisis to s. 52(1) declarations made by superior court judges does not mean that a superior court declaration will have no effect in other cases. Other 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: R. v. Scarlett, 2013 ONSC 562, at para. 43; Re Hansard Spruce Mils Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. It is obvious that a superior court judge cannot determine that there is cogent reason to conclude that the earlier decision is plainly wrong without the benefit of argument, facilitated by fair notice to the parties. Therefore, where a party seeks to rely on a statutory provision that has been declared to be unconstitutional by a superior court judge, a subsequent trial judge should apply that earlier declaration of invalidity and treat the statutory provision as having no force or effect, unless the underlying constitutional issue has been raised by the Crown before them through submissions that the earlier decision is plainly wrong. In this way, the principles of stare decisis can operate, while recognizing that the effect of a s. 52(1) declaration is not confined to the litigation in which the declaration is made.

In short, absent cogent reasons to believe the earlier declaration of invalidity is plainly wrong, a superior court within the same province should treat the declaration as binding.

Note: Justice Lauwers, concurring in the result, splits from the rest of the Court on this issue.  We may see an appeal to the Supreme Court of Canada. 

Written by Stuart O’Connell (Barrister/Solicitor).