The aim of this thesis is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. I review the jurisprudence of South Africa’s Constitutional Court to illustrate the merits of this approach.

The aim of this thesis is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. I review the jurisprudence of South Africa’s Constitutional Court to illustrate the merits of this approach.