constitutional law 04 process of constitutional litigation: standing and justiciability shigenori...
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CONSTITUTIONAL LAW
04 PROCESS OF CONSTITUTIONAL
LITIGATION: STANDING AND JUSTICIABILITY
Shigenori Matsui
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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?
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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.
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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.
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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
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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.
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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
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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
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2 STANDING OF CORPORATIONS TO CHALLENGE THE CONSTITUTIONALITY
R. v. Big M Drug Mart Ltd
R. Wholesale Travel Group Inc [1991]
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Canadian Egg Marketing Agency v. Richardson [1998] Federal egg market regulation; license and
quota CEMA file a civil suit seeking injunction
against the violator
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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?
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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
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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?
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What should be required for the party who satisfies the standing requirement to assert constitutional violation?
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4 MOOTNESS
What would happen if the party lost standing during the litigation?
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Borowski v. Canada [1989]
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Doucet-Boudreau v. Nova Scotia [2003]
R.v. Smith [2004]
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When does the case become moot and when the court is justified in ruling on the merits?
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5 WHAT IS JUSTICIABILITY?: POLITICAL QUESTION?
Reference re Secession of Quebec [1998]
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Reference re Same-Sex Marriage [2004]
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Chaoulli v. Quebec [2005]
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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
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Legal disputes capable of judicial resolution Standing requirement Mootness doctrine Ripeness requirement Political question doctrine
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Political question doctrine
Should Supreme Court of Canada avoid political question?