Notice of Constitutional Question (POA)

Courts of Justice Act, R.S.O. 1990, c. C.43

95 (1) This Part applies to civil proceedings in courts of Ontario.

(2) Sections 109 (constitutional questions) and 123 (giving decisions), section 125 and subsection 126 (5) (language of proceedings) and sections 132 (judge sitting on appeal), 136 (prohibition against photography at court hearing) and 146 (where procedures not provided) also apply to proceedings under the Criminal Code (Canada), except in so far as they are inconsistent with that Act. R.S.O. 1990, c. C.43, s. 95 (1, 2).

(3) Sections 109 (constitutional questions), 125, 126 (language of proceedings), 132 (judge sitting on appeal), 136 (prohibition against photography at court hearings), 144 (arrest and committal warrants enforceable by police) and 146 (where procedures not provided) also apply to proceedings under the Provincial Offences Act and, for the purpose, a reference in one of those sections to a judge includes a justice of the peace presiding in the Ontario Court of Justice. R.S.O. 1990, c. C.43, s. 95 (3); 1996, c. 25, s. 9 (18).

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109 (1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

1. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.

2. A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

(2) If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be.

(2.1) The notice shall be in the form provided for by the rules of court or, in the case of a proceeding before a board or tribunal, in a substantially similar form.

(2.2) The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise. 1994, c. 12, s. 42 (1).

(3) Where the Attorney General of Canada and the Attorney General of Ontario are entitled to notice under subsection (1), they are entitled to notice of any appeal in respect of the constitutional question.

(4) Where the Attorney General of Canada or the Attorney General of Ontario is entitled to notice under this section, he or she is entitled to adduce evidence and make submissions to the court in respect of the constitutional question.

(5) Where the Attorney General of Canada or the Attorney General of Ontario makes submissions under subsection (4), he or she shall be deemed to be a party to the proceeding for the purpose of any appeal in respect of the constitutional question. R.S.O. 1990, c. C.43, s. 109 (3-5).

(6) This section applies to proceedings before boards and tribunals as well as to court proceedings. 1994, c. 12, s. 42 (2).

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

4.11 The notice of constitutional question referred to in section 109 of the Courts of Justice Act shall be in Form 4F. R.R.O. 1990, Reg. 194, r. 4.11.

Paluska v. Cava, 2002 CanLII 41746 (ON CA)

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Section 109(1) of the Courts of Justice Act required that the Attorney General be given notice of the motions judge's order before it was made. The provision is mandatory where a remedy is sought under s. 24(1) of the Charter for the failure of the government to act. The telephone notice of the proceedings given to the Attorney General's office by counsel for Legal Aid Ontario did not constitute the notice required by s. 109(1). Even if the formal defects in the notice were overlooked, by the time the Attorney General's office received the telephone call, the motions judge had already made her order. In the absence of notice, the decision was invalid, and not merely voidable upon a showing of prejudice.

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[2] The Attorney General of Ontario has appealed this decision. On this preliminary motion, the Attorney General asks that the order of the motions judge be declared invalid because he was not given notice of her proposed order as required by s. 109(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. I would grant the motion. Under s. 109, notice to the Attorney General is mandatory when a Charter remedy is sought and the absence of notice renders the decision invalid.

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[16] The notice requirement has two related purposes: to ensure that governments have a full opportunity to support the constitutional validity of their legislation or to defend their action or inaction; and to ensure that courts have an adequate evidentiary record in constitutional cases. See Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241, 142 D.L.R. (4th) 385.

[17] The questions raised by this motion are whether the motions judge's proposed order triggered s. 109, whether the telephone notice received by the Attorney General's office on September 19, 2001 complied [with] the section and, if not, whether the absence of notice renders the order for publicly- funded counsel invalid.

[18] Section 109(1) required that the Attorney General of Ontario be given notice of the motions judge's order before it was made. The provision is mandatory where a remedy is sought under s. 24(1) of the Charter for the failure of the Ontario government to act. Here, although the motions judge did not expressly refer to s. 24(1), she must have made her order under that section of the Charter because she found that the government's failure to pay for a lawyer for Mr. Paluska violated his s. 7 rights.

[19] The telephone notice of the proceedings given to the Attorney General's office by counsel for Legal Aid Ontario did not constitute the notice required by s. 109(1). Even if one were to overlook the formal defects in the notice -- the notice was not in writing and the constitutional question was not specified -- by the time the Attorney General's office received the telephone call on September 19, the motions judge had already made her order. Section 109 obviously requires notice before a Charter remedy is given, not after. The remedy given in this case was awarded without first complying with s. 109.

R. v. Vellone, 2011 ONCA 785 (CanLII),

Charter of Rights and Freedoms -- Notice of constitutional question -- Defendant seeking stay based on unreasonable delay under s. 11(b) of Charter on day of trial for provincial offence prosecuted by municipality -- Provincial offences appeal court overturning justice's refusal to entertain motion due to lack of notice, finding unreasonable delay and staying proceedings -- Crown appeal from stay -- Term "Government of Ontario" in s. 109 of Courts of Justice Act including municipalities -- Defendant who seeks remedy under s. 24(1) of Charter in prosecution under Provincial Offences Act required to serve notice on Attorney General of Ontario -- Canadian Charter of Rights and Freedoms, s. 24(1) -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109.

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The defendant was required to serve notice under s. 109 of the CJA on at least the Attorney General of Ontario. The term "Government of Ontario" in s. 109 includes municipalities. The Supreme Court of Canada has consistently held that municipal levels of government come within the meaning of "government" in s. 32(1) of the <i<Charter. It would not make sense to say that s. 32(1) of the Charter includes municipal action within action of the government of Ontario but that s. 109 of the CJA does not. Moreover, under the memorandum of understanding between the Government of Ontario and the municipality, the former retained the right to take over a POA prosecution at any time. The notice requirement enabled the Government of Ontario to decide whether to exercise that right. It also furthered the Government of Ontario's important interest in monitoring the performance of municipalities under the Memoranda of Understanding. Finally, s. 11(b) cases may raise concerns about systemic problems that implicate provincial responsibilities. Notice to the Attorney General of Ontario provided the Government of Ontario with important data about key components of the provincial justice system.