Dear
Professor:
I
think you have framed the question wrong. Your question is not really about the
application of the Canadian Constitution’s Notwithstanding Clause—rather, it is
about retroactivity and changes in the “law” (as made by courts, legislatures,
and Canadian-ministers’-orders & Presidents’/Governors’-executive-orders)
during the course of civil and criminal litigation.
In
the United States and (as I understand it) and in Canada, if a defendant is sued civilly
or prosecuted criminally, while his case has not reached final judgment and
while all appeals and all ability to seek reconsideration is not yet passed, if
the law changes, the defendant can take advantage of such changes in the law if
they are to his advantage/benefit. If the case is not final, and the law
changes to his disadvantage, if the matter is criminal, ex post facto and
retroactivity protections preclude the government from expanding
liability/punishment or reducing the evidentiary burden on the state to secure
conviction. But if the matter is civil, then the plaintiff might secure the
benefit of a change in the law to the defendant’s disadvantage.
It
is altogether different if a matter has reached final judgment and all appeals
and all opportunities to seek reconsideration have been exhausted (or the time
to seek such reconsideration/appeal has passed). If the matter is criminal,
then a favourable change in the law, that is, “new” law, by whatever
means—legislation, or court judgments, etc, leaves the prior conviction intact
or unaffected. If the defendant seeks to re-open the case or seeks habeas
review, he is unlikely to secure the benefit of “new” law. In the United States, see
FIORE v. WHITE (US 1999 and 2001), in Canada, see R v SARSON (Canadian Supreme
Court 1996). Similar principles apply here (in Ireland) too. See A v GOVERNOR OF ARBOUR HILL PRISON [2006] IESC 45 (Irish Supreme Court).
As
to the application of the Canadian Constitution’s Notwithstanding Clause—that (in
my opinion) may amount to changed or “new” law. If a Canadian defendant were
convicted during the tail end of a 5-year period under a criminal statute
insulated against Charter-related judicial review (via application of the
Notwithstanding Clause), and while that case was under appeal, and the 5-year
period ran out, then an appellate court could apply the Charter, strike down
the law under which the defendant had been found guilty, and then proceed to overturn
the conviction (and any sentence).
If
the defendant were convicted and then his appeals and opportunities to seek
reconsideration ran out, and then after his conviction was finalized, and then
the 5-year period ran out, here the law under which he was convicted would no
longer be enforceable going forward (as the courts would not be barred by
application of the Notwithstanding Clause), … in these circumstances, it would
seem that his conviction would be insulated against any collateral attack or
habeas review. The defendant’s conviction would not be overturned.
All
this might strike one as unfair...but equal treatment under the law will always
have quirky results if the legal system changes the law ... such temporal
changes will naturally produce unequal results.
Does
that help?
Seth
Seth Barrett Tillman, ‘Retroactivity and Ex post facto Principles: Canada, Ireland, and the United States,’ New Reform Club (Oct. 2, 2026, 6:40 AM), <https://reformclub.blogspot.com/2026/10/retroactivity-and-ex-post-facto.html>;
See also: Seth Barrett Tillman, Tillman on the Conventions of the Canadian Constitution, New Reform Club (June 6, 2018, 9:28 AM), <https://reformclub.blogspot.com/2018/06/tillman-on-conventions-of-constitution.html>.
