Under the traditional “Blackstonian” approach, a section 52(1) declaration of constitutional invalidity is deemed to be fully retroactive based on the the ory that a government does not have authority to enact an unconstitutional law. Without abandoning this traditional approach, the Supreme Court of Canada has held that a fully retroactive declaration is not always a practical solution and for this reason, among others, has strayed from the traditional approach and limited the retroactive nature of declarations of invalidity in many cases. This paper examines the ways in which the Supreme Court has limited the fully retroactive nature of declarations of invalidity, namely (i) temporary suspensions; (ii) prospective overrulings accompanied by transition periods; (iii) the doctrine of qualified immunity; (iv) the general rule limiting individual remedies in combination with a declaration of invalidity; and (v) res judicata and the de facto doctrine. It the n proceeds to analyze the Court’s decision in Hislop v. Canada, in which the Court attempts to reconcile its previous rulings on the retroactive nature of declarations with the traditional the oretical approach. Finally, this paper critically analyzes the new test developed in Hislop to determine whether a section 52 declaration has retroactive effect.
"Hislop v. Canada: A Retroactive Look."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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