Section 109

Notice of constitutional question
109.(1)Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

1. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.

2. A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

Section 109 – What is It?

Section 109, which is called a "Notice of Constitutional Question", requires you to notify the Ontario and federal governments, through their attorneys general, that you are going to argue that something they did (or didn't do) or a law they created violated your constitutional rights. You are giving them notice that you will raise this issue before the court during your trial.

By giving them notice, they have an opportunity to respond, to show up at your trial and argue against you.

Section 109 applies in either of the following two circumstances:

1. You are questioning whether a law or regulation is constitutionally valid.
2. You are seeking a remedy as a result of an act or omission of the Canadian or Ontario government.

Section 109 -- How it Works

If you are making a stay application then you must follow section 109. You must inform the attorneys general of your intention to raise a constitutional issue.

In order to give them proper notice, section 109 requires you to do three things:

1. You must follow the rules of the court.
2. You must use the proper form.
3. You must notify them at least 15 days before the court date.

(1) Rules of the Court

What are the "rules of the court"? Section 70 states that the rules of provincial offences court can be made by regulation. The regulation is called Rules Of The Ontario Court (provincial Division) In Provincial Offences Proceedings, otherwise known as Regulation 200. You would be wise to review these rules, especially section 7 which covers motions and applications.

(2) Proper Notice

To notify the attorneys general of Ontario and Canada you must complete this form and give them copies.

For reference, here is an example form that has been completed. A full explanation of the documents, how to complete them and when to use them is covered in the documents section.

(3) Counting Days

Counting 15 days for you application is more complicated than it looks. According to Regulation 200, section 4.4 states that where the term "at least" is added to an expression of days, the first and last day shall not be counted. The term "at least" appears in point #3 above.

Therefore "at least fifteen days before the court date" means you cannot count:

• the day you submitted the application;
• the day the application is received; and
• the court date.

That means you need a minimum 18 clear days between the day you file your application and your court date.

Wait. There's more. Section 4.3 states that the last day cannot fall on a Saturday or a holiday. If it does, the next day shall be deemed to be the last day.

Here is an example to explain these points. Your court date is Tuesday, May 24, 2011. What is the absolute last day to file an application for a stay? Let's work through the answer. First, May 23 is Victoria Day and a holiday. The last day cannot fall on the court date, a holiday or a Saturday. So Sunday May 22 is clear. But to avoid any counter argument and to play it safe, use the Friday before the long weekend, May 20 as the last day. Counting backward 15 days lands on May 6. But the first and last days do not count when counting 15 days, so you cannot count May 6 or May 20. That means you must add two days. That brings you back to May 4. Using May 4 gives you 15 clear days, not counting the first day, the last day, or the court date. And the last day does not fall on a holiday or a Saturday.

In order to file your application "15 days" before your court date on May 24, you must file at the very latest on May 4, twenty calendar days in advance!

Section 109 -- Applies to Municipalities

An Ontario appeal court ruled in 2009 that Section 109 did not apply to municipalities since they were neither the provinical or federal government. However, in 2011, the Ontario court of Appeal overturned that ruling stating that the Ontario government has at all times the right to take over prosecution of your trial and therefore should be notified under section 109.

The court also addressed whether the municipal prosecutor has to be notified. While the law does not require it, the court noted that the Law Commission of Ontario proposed that the law be amended to require municipal notification. For practical purposes, it will make your life much easier if you notify not only the attorneys general of Ontario and Canada but also the municipal prosecutor.