Governmental Interventions in Constitutional Litigation: An Analysis of Section 25 of the Judicature Act

Abstract

The Alberta Judicature Act requires that written notice be given to the Attorneys General for Canada and the Province whenever the constitutional validity of a Federal or Provincial enactment is challenged in a proceeding. The advent of Charter litigation has raised many questions and concerns about the scope and role of interveners. The author begins by outlining the legislative history and constitutional basis and validity of the notice requirement and then examines the scope of the notice requirement. It is submitted that the requirement of giving notice of a challenge to an enactment's constitutional validity should be seen in a wide sense so as to allow a government to be heard whenever their law making power is brought into issue. Proceedings and enactments to which the notice requirement applies are then outlined. The author deals with two objections to the notice requirement, the first being based on s. 52 of the Constitution Act, 1982 (the supremacy clause), the latter regarding the effect of s. 15 of the Charter and the difference in provincial notice requirements and access to Charter protection. The author concludes with a short discussion on the governmental interest in interventions and submits that while the role played by the Attorneys General is important, there are circumstances where the rights of intervention should not be protected at the expense of private litigants.