Take notice, jurisdiction is predicated on it!

Andrew McCann, Jamie Masse and Patrick Thompson blocked a cattle truck from leaving the Frontenac Penitentiary. The blockade was part of a peaceful protest. They were convicted of mischief and received conditional discharges. Their appeal to the summary conviction appeal court was dismissed. They appealed to the Ontario Court of Appeal: 2015 ONCA 451.

On appeal the appellants presented arguments that ultimately were based on the assertion that “the court below erred in finding that their peaceful protest was not protected expression under s. 2(b) of the Charter” [@3]. The court rejected this argument:

The impediment to this argument is that the appellants did not serve a notice of constitutional question as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. A Charter argument was not made at first instance and in fact the appellants, who were self-represented, disclaimed a Charter argument. [@4].

The failure to serve notice was fatal the court held:

Notice of a constitutional question is not simply a technicality. The jurisprudence of this court confirms that it is mandatory: Paluska, Jr. v. Cava (2002), 59 O.R. (3d) 469 (C.A.); R. v. Briggs (2001), 55 O.R. (3d) 417 (C.A.). Section 109(2) of the Courts of Justice Act provides that where notice has not been given, a remedy under s. 24(1) of the Charter shall not be granted. The notice requirement is important for the reasons expressed in Briggs at para. 44 – to put the government on notice that the legislation is being challenged and to give it a full opportunity to support its validity. It also ensures that the court has the benefit of a full factual record.
We agree with the respondent that the appellants’ submissions raise the constitutional applicability of s. 430(3) of the Code. This court has no jurisdiction to grant relief in the absence of notice or in the absence of the circumstances discussed in para. 23 of Paluska, none of which exist here. Moreover, the appellants concede that the record before us does not permit us to assess the Charter arguments or to grant a Charter remedy. [@6-7].

McCann is a helpful decision which clearly recognizes that notice is not merely a procedural formality, it is a substantive pre-requisite to the consideration of a constitutional issue. In the absence of notice the court lacks jurisdiction to grant a remedy. This principle has universal application; it is unaffected by the importance or prevalence of the issue at hand. While the issue is well settled law, it seems that remains at issue in some cases: see Nicholson, 2014 OJ No 3860 (where the court overturned a constitutional ruling by the lower court which proceeded in the absence of notice). McCann therefore offers a helpful reminder from the Ontario Court of Appeal.