Law360 Canada (March 12, 2025, 9:16 AM EDT) — The Supreme Court of Canada (SCC) has long been celebrated as the guardian of the Constitution, the institution tasked with ensuring that the laws of the land align with the Canadian Charter of Rights and Freedoms. But over the past few decades, a judicial innovation known as “temporary validity” has crept into the court’s toolkit, raising profound questions about its role, its adherence to constitutional principles, and its relationship with the other branches of government.

While the doctrine may seem like a pragmatic solution to complex legal problems, it risks undermining the rule of law, distorting the separation of powers and eroding public confidence in the judiciary. Let’s unpack this.

At the heart of the issue is s. 52(1) of the Constitution Act, 1982, which states, in no uncertain terms, that any law inconsistent with the Constitution is “of no force or effect.” The language is clear, direct and uncompromising. There’s no mention of exceptions, delays, or temporary suspensions. Yet, since the 1985 Manitoba Language Reference (Reference re: Manitoba Language Rights (Man), [1985] 1 S.C.R. 721), the Supreme Court of Canada has embraced temporary validity, allowing otherwise unconstitutional laws to remain in force for a period — sometimes months, sometimes years — ostensibly to avoid legal chaos or to give legislatures time to fix the problem.

In Manitoba Language Reference, the court reasoned that an immediate declaration of constitutional invalidity would result in a “legal vacuum” inimical to the very rule of law. The court “conjured” an inimitable remedy and said:

The Constitution will not suffer a province without laws. Thus, the Constitution requires that temporary validity and force and effect be given to the current Acts of the Manitoba Legislature from the date of this judgment, and that rights, obligations and other effects which have arisen under these laws and the repealed and spent laws prior to the date of this judgment, which are not saved by the de facto or some other doctrine, are deemed temporarily to have been and continue to be effective and beyond challenge. It is only in this way that legal chaos can be avoided, and the rule of law preserved. 

Of course, the court stressed the “emergency” conditions that mandated the remedial measure and limited the suspension of the declaration’s validity to the “minimum term necessary” for the legislature to make the necessary corrections. This sparked the frequent use of temporary validity and the emergence of a situation where the legitimate functions of legislatures and courts become obscured.

Take the Schachter v. Canada, [1992] 2 S.C.R 679 case, for example. Here, the SCC was faced with a federal parental benefits scheme that violated s. 15 of the Charter because it excluded certain groups. The court acknowledged the violation but decided not to strike down the law immediately.

Why? Because doing so would have deprived deserving individuals of benefits while Parliament figured out a fix.

On the surface, this seems compassionate and practical. But let’s think about what’s really happening here. By suspending the declaration of invalidity, the SCC isn’t just interpreting the law — it’s  effectively rewriting it. It’s deciding when and how an “unconstitutional law” should be remedied, a role that strictly belongs to Parliament, not the judiciary.

This is where things get messy. The Constitution explicitly grants Parliament the authority to enact laws, even those that contravene certain Charter rights, through the notwithstanding clause (s. 33). This is a powerful tool, but it comes with political consequences.

By contrast, the judiciary’s role is to interpret and apply the law, not to rewrite or suspend it. Yet, with temporary validity, the SCC has effectively created a workaround to the notwithstanding clause, allowing plainly written “unconstitutional laws” to remain in force without the explicit enacting or amending architecture of Parliament. This isn’t just a technicality — it’s a fundamental shift in the balance of power.

The SCC’s justification for temporary validity often hinges on the need to avoid a “legal vacuum” or to protect public interests. In the Manitoba Language Reference, for instance, the court argued that striking down all of Manitoba’s unilingual laws at once would have created chaos. Fair enough. But this rationale is at odds with the supremacy clause, which leaves no room for judicial discretion in the face of unconstitutional laws.

Section 52(1) doesn’t say, “Laws inconsistent with the Constitution are of no force or effect, unless the Court thinks it’s a bad time to strike them down.” “Any law inconsistent with the Constitution is ‘of no force or effect’ ” is an absolute statement, and the court’s reliance on temporary validity has created a procedural paradox: while the Constitution mandates immediate invalidation, the judiciary has granted itself the power to delay this outcome. This not only undermines the plain provisions of the Constitution but tends to blur the lines between judicial and legislative functions.

This is part one of a two-part series. In part two, we’ll continue the discussion, beginning with a look at what the critics have to say.

Hodine Williams has over 20 years of experience in law, corporate governance and regulatory compliance across the legal, financial, hospitality and engineering sectors. A former prosecutor and expert in digital forensics, financial crimes and cyber law, he has advised corporations in Jamaica, Canada and the United Kingdom. Holding a master of laws in international business law from Osgoode Hall Law School, along with degrees in management and economics and law, Williams is also an educator, philanthropist and advocate for youth development and racialized communities. You can reach him at hodine.williams@gmail.com.

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