Did the adoption of the Canadian Charter of Rights and freedoms cause any existing laws to be immediately struck down?
<p>In the Charter, certain laws became more difficult to pass without the use of the notwithstanding clause. Some laws theoretically violated the Charter as soon as it was enacted (certain sections of the Indian act, for instance). Did any laws immediately become void simply by the Charter being enacted?</p>

<p>The invalidity of laws that are inconsistent with the <em>Charter</em> is by virtue of section 52(1) of the <em>Constitution Act, 1982</em>, which came into force with the bulk of the <em>Charter</em>. It states that:</p>
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<p>The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.</p>
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<p>This might be read as immediately applying by its own force to render laws inconsistent with the <em>Charter</em> to be void. And language to this effect has been even used by the Court, saying that a provision inconsistent with the Constitution is &quot;invalid from the moment it is enacted&quot; (e.g. <em>Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2088/index.do" rel="nofollow noreferrer">2003 SCC 54</a>). But for Section 52 to have effect &quot;requires the exercise of judicial power to declare the law to be unconstitutional&quot; (<em>R. v. Sullivan</em>, <a href="https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19390/index.do" rel="nofollow noreferrer">2022 SCC 19</a> at para. 54). That a law is inconsistent with the Constitution is &quot;revealed through litigation, specifically the judgment that declares the inoperability of the impugned law&quot; (<em>Sullivan</em> at para. 55). Section 52 has no practical effect aside from Courts or other decision-makers declining to apply law that is inconsistent with the Constitution. Whether a law was void as soon as the <em>Charter</em> was enacted is not really a meaningful question nor even detectable until a Court declares the law to be invalid.</p>
<p>The Court has also clarified that declarations of invalidity are not necessarily retroactive to the moment of enactment (internal citations removed):</p>
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<p>[60] ... Mr. Sullivan points to the idea that an unconstitutional law is invalid from the moment it is enacted. But the strict enforcement of such a principle “cannot easily be reconciled with modern constitutional law”. Instead, it is subject to a number of exceptions and s. 52(1) must be read “in light of all constitutional principles”. In <em>Albashir</em>, my colleague Karakatsanis J. explained that declarations of unconstitutionality are generally retrospective, consistent with the notion that a law is unconstitutional from its enactment. However, other constitutional principles may require a purely prospective declaration of unconstitutionality or a suspended declaration. Similarly, the legal effect of a s. 52(1) declaration by a superior court must be defined with reference to constitutional supremacy, the rule of law, and federalism.</p>
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<p>I'll say this one more way: while it's true that some laws were immediately inconsistent with the <em>Charter</em>, s. 52(1) did not have any observable effect until a court declared such laws to be invalid.</p>

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