Home / BCCLA Reacts: Supreme Court rules on binding nature of court orders that declare a law unconstitutional

BCCLA Reacts: Supreme Court rules on binding nature of court orders that declare a law unconstitutional


Ottawa, ON (Unceded Algonquin Anishnaabeg Territory) The Supreme Court of Canada released its decision on Friday, May 13, 2022, in R v Sullivan, a case that considered the effects of constitutional declarations of invalidity on courts across Canada. The Court held that superior court declarations, of binding force only within a province, amount to nothing more or less than an ordinary exercise of judicial power grounded in recognized fundamental principles. The BCCLA is concerned that the Court did not go far enough in improving access to justice for all Canadians but is heartened that the decision provides much needed guidance for courts to consider in departing from prior declarations.

The BCCLA intervened in this case to argue that court orders declaring a law unconstitutional are final and should be universally respected across Canada. Such an approach reflects the rich historical context of the binding nature of this remedy and recognizes the inherent and supervisory jurisdiction of superior courts to settle important constitutional disputes. Final declarations allow Canadians to benefit from the certainty of knowing the law. They also support access to justice by avoiding parallel challenges to laws that have already been invalidated in other provinces.

Stephanie Goodwin, interim Executive Director for the BCCLA, states: “The Supreme Court took a smaller step when a bigger step was needed to ensure access to justice across Canada.  The BCCLA welcomes that the Court affirmed a stronger analytical framework for departing from previous declarations but is concerned that it fell short in increasing legal certainty across Canada.”

Paul Daly, counsel for the BCCLA, states: “The Court acknowledged the Attorney General’s important role in protecting the public interest within the justice system, particularly when it comes to appealing Charter decisions. The Court provided useful guidance on the role of the Attorney General, which I hope will strengthen the rule of law and improve access to justice for all Canadians.”

The BCCLA was represented by Jeremy Opolsky, Jake Babad and Julie Lowenstein of Torys LLP and Paul Daly of the University of Ottawa, Faculty of Law.