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?