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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Legislative remedies - Temporary suspension of declaration of invalidity

Tuesday, February 19, 2019 @ 9:08 AM  


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Application by the Crown to extend the suspension of a declaration of constitutional invalidity. The judgment under appeal declared that the provisions of the Corrections and Conditional Release Act authorizing the administrative segregation of inmates violated ss. 7 and 15 of the Charter. The judgment, issued in January 2018, suspended the declaration of invalidity for one-year. The Crown appealed. The Crown accepted that certain correctional practices violated inmates' rights and required modification, but otherwise contended that the existing legislation was capable of being interpreted and administered in a manner that conformed to constitutional norms. Nonetheless, in October 2018, the government introduced a bill that, if adopted, would replace the impugned provisions. In November, the appeal was heard, and judgment was reserved. At the end of the hearing, the Crown applied to extend the period suspending the declaration of invalidity to July 2019. The respondents opposed the relief sought.

HELD: Application allowed. There were no unexpected circumstances arising from the litigation or circumstances in Parliament explaining the failure by the government to introduce and enact new legislation. On the other hand, there were no developments that made striking down the legislation more exigent than at the time of the judgment under appeal. The risks regarding inmate safety inherent in striking down the legislation before replacement provisions were in place remained serious. There was no reason to doubt the ability to have the new legislation passed prior to the 2019 summer break. The impact on confidence in the administration of justice was neutral. Based on the government's apparent good faith and the risk of harm if the legislation was immediately struck down, it was appropriate to extend the suspension of the declaration of invalidity to June 2019, with conditions to address the constitutional concerns regarding the existing legislation.

British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2019] B.C.J. No. 8, British Columbia Court of Appeal, H. Groberman, P.M. Willcock and G.J. Fitch JJ.A., January 7, 2019. Digest No. TLD-February182019003