Challenges to the Validity of Legislation (Procedure on Receipt of Notice)

Challenges to the Validity of Legislation (Procedure on Receipt of Notice)

DATE: October 20, 2009

SUBJECT: THE PROCEDURE TO BE FOLLOWED UPON RECEIPT OF A CONSTITUTIONAL OR OTHER
CHALLENGE TO THE VALIDITY OF FEDERAL OR PROVINCIAL LEGISLATION

Procedure:

Background

The Criminal Justice Division (Alberta Prosecution Service) handles all challenges to the Criminal Code and YCJA. The Legal Services Division (Constitutional Law and Aboriginal Law Branch) handles all challenges to the applicability or constitutionality of provincial legislation.

The following procedure is to be used whenever a prosecutor receives notice that the accused intends to challenge the validity or applicability of legislation (either federal or provincial statutes).

The Requirement for Notice Generally:

In respect of applications challenging the constitutional validity or applicability of a federal or provincial enactment, s. 24 of the Judicature Act RSA 2000, c. J-2 sets out the following notice requirements:

  1. written notice of such an application must be provided to both the federal and provincial Attorneys General at least 14 days prior to the application; and
  2. the written notice shall specify the section being challenged and shall provide “reasonable particulars” of the argument to be advanced.

The requirement of notice is to ensure that governments have a full opportunity to support the constitutional validity of the legislation and to ensure that the presiding judge or justice has an adequate evidentiary record in constitutional cases.

Notice is also required pursuant to the Constitutional Notice Regulation AR 102/99.

Challenges to Federal Legislation

Upon receipt of notice, written or otherwise, that an accused person intends to challenge the validity or applicability of any federal legislation (usually a provision of the Criminal Code of Canada or the Youth Criminal Justice Act), the Crown prosecutor involved shall:

  1. Immediately advise and forward a copy of the Notice to their Chief Crown Prosecutor (or his or her designate);
  2. Immediately advise and forward (by fax) a copy to the Director of Appeals; and
  3. Maintain conduct of the prosecution, including drafting the response to the challenge;
  4. In setting a date for hearing of the constitutional challenge, keep in mind the general rule that the application should not be heard prior to trial, but should be heard either during the course of the trial or at the end of it, if necessary; and,
  5. Immediately upon resolution of the challenge (whether by a court determination or otherwise) notify their Chief Crown Prosecutor or designate, and the Director of Appeals.

The Chief Crown Prosecutor (or their designate) and a member of the Appeals and Prosecution Policy Branch will coordinate the handling of the constitutional challenge. Within each office there is a designated person (the Chief Crown Prosecutor or their designate) who is responsible for coordinating the handling of constitutional challenges in that office, receiving all notices of constitutional challenges and liaising with a member of the Appeals and Prosecution Policy Branch. A member of the Appeals and Prosecution Policy Branch will at times handle the constitutional challenge at the trial level, but cannot attend to all constitutional challenges brought in the trial courts. When they are unable to attend to handle the constitutional challenge they will support and assist the trial prosecutor.

Challenges to Provincial Legislation, Aboriginal Rights, and Alberta Bill of Rights

Upon receipt of notice, written or otherwise, that an accused person intends to

The Crown prosecutor involved shall:

  1. Immediately advise their Chief Crown Prosecutor, who shall monitor the progress of the case throughout;
  2. Immediately advise the Director of Constitutional Law or the Director of Aboriginal Law (as the case may be) of the challenge or issue (and provide a copy of any written notice received), who shall then handle the Attorney General’s response to the challenge or issue; and,
  3. Immediately upon resolution of the challenge or issue (whether by a court determination or otherwise) notify their Chief Crown Prosecutor, the Director of Appeals, and the Director of Constitutional or Aboriginal Law of the result.