A law itself may be put on trial in certain circumstances. We call this challenging the constitutionality of the legislation. There are many reasons why a law may be said to be unconstitutional. The main ones are:
- The wrong branch of government passed the law.
- The law is very vague and unclear.
- The law is too broad, or has a disproportionate effect to the objective it was designed to address.
Challenging the constitutionality of the law is one of the hardest things a person in conflict with the law can do. It is one of the hardest things any lawyer can do too. Of the tens of thousands of lawyers practicing in Canada right now, only a very small number has ever successfully challenged a law.
I have had 2 Federal statutes struck down as unconstitutional: s, 4 of the Narcotics Control Act (now the Controlled Drugs and Substances Act) in R. v. Parker and s. 488.1 of the Criminal Code of Canada.
A number of people complain that they think the law is unfair, and want to challenge it. However, many challenges have already taken place and failed, so that ends those complaints. For the others, when they learn of the cost to mount a challenge, that’s the end of that. Still, if the right case comes along, with the right facts and the right client, I am ready, willing and able to take it on.