CONSTITUTIONAL LAW
04 PROCESS OF
CONSTITUTIONAL
LITIGATION: STANDING
AND JUSTICIABILITY
Shigenori Matsui
INTRODUCTION
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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?
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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?
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Is standing a constitutional requirement or
what?
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Compare with article 3 of the United States
Constitution
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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

What should be required to satisfy the
standing requirement?
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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]
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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
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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
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Should Supreme Court of Canada avoid
political question?