CONSTITUTIONAL LAW 1 What is the Constitution?
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Transcript CONSTITUTIONAL LAW 1 What is the Constitution?
CONSTITUTIONAL LAW
04 PROCESS OF
CONSTITUTIONAL
LITIGATION: STANDING
AND JUSTICIABILITY
Shigenori Matsui
INTRODUCTION
1 What is the process of constitutional
litigation?
2 What is the standing rule?
3 What is the standing of corporations to
challenge the constitutionality?
4 Why standing is required?
5 What would happen when the case became
moot?
6 Should the courts avoid political question?
I WHAT IS THE STANDING RULE?
In order to challenge the constitutionality of a
statute, one has to file a suit. In order to file a
suit, one must have a standing.
In principle, the party is allowed to invoke the
violation of his or her own rights as a basis of
constitutional attack. The party must have a
standing to invoke rights of others.
Thorson v. Attorney General of Canada [1975]
Taxpayer suit against the Official Language
Act
Nova Scotia Board of Censors v. McNeil [1976]
Resident and taxpayer suit against the
Theatres and Amusements Act.
Minister of Justice v. Borowski [1981]
A physician challenged the abortion provision
of the Criminal Code under the Canadian Bill
of Rights, alleging the infringement of rights of
fetus
A
person need only to show that he is
affected by it directly or that he has a
genuine interest as a citizen in the
validity of the legislation and that there
is no other reasonable and effective
manner in which the issue may be
brought before the Court.
Hy and Zel’s Inc v. Ontario [1993]
Holiday shopping legislation
Corporate retailors and retail employees
Challenged it as infringement of freedom of
religion and equality right
Canadian Council of Churches v. Canada
(Minister of Employment and
Immigration),[1992] 1 S.C.R. 236
Federal corporation which represents the interests
of a broad group of member churches
The Council sought a declaration that amended
provisions of the Immigration Act violated the
Charter
2 STANDING OF CORPORATIONS TO
CHALLENGE THE CONSTITUTIONALITY
R. v. Big M Drug Mart Ltd
R. Wholesale Travel Group Inc [1991]
Canadian Egg Marketing Agency v.
Richardson [1998]
Federal egg market regulation; license and
quota
CEMA file a civil suit seeking injunction
against the violator
4 WHY STANDING IS REQUIRED?
Is standing a constitutional requirement or
what?
Compare with article 3 of the United States
Constitution
Why should the standing be required?
Two different system of judicial review:
judicial review system in the United States
and constitutional review in Germany
In Canada, a reference is allowed to the
Supreme Court of Canada
What should be required to satisfy the
standing requirement?
Why not allowing every citizen to file a suit to
challenge the constitutional violation
regardless of the standing?
What should be required for the party who
satisfies the standing requirement to assert
constitutional violation?
4 MOOTNESS
What would happen if the party lost standing
during the litigation?
Borowski v. Canada [1989]
Doucet-Boudreau v. Nova Scotia [2003]
R.v. Smith [2004]
When does the case become moot and when
the court is justified in ruling on the merits?
5 WHAT IS JUSTICIABILITY?:
POLITICAL QUESTION?
Reference re Secession of Quebec [1998]
Reference re Same-Sex Marriage [2004]
Chaoulli v. Quebec [2005]
In the United States, the cases or
controversies requirement of article 3 of the
United States Constitution
Constitutional cases or controversies
requirement and justiciability requirement
Legal disputes capable of judicial resolution
Standing requirement
Mootness doctrine
Ripeness requirement
Political question doctrine
Political question doctrine
Should Supreme Court of Canada avoid
political question?