What is the test for a court to hear and decide a constitutional issue not properly raised in the court below?
British Columbia, Canada
The following excerpt is from Jean Louis v. Jean Louis, 2021 BCCA 324 (CanLII):
When deciding whether or not to hear and decide a constitutional issue not properly raised in the court below, an appellate court should consider all the circumstances including: “the importance of having the issue resolved by th[e] [c]ourt, its suitability for decision and the broader interests of the administration of justice”: Guindon v. Canada, 2015 SCC 41 at para. 20. A court must also consider whether the relevant attorneys general have had an opportunity to address the constitutional question: Guindon at para. 23. The burden is on the appellant to persuade the court that in light of all the circumstances it should exercise its discretion to address the constitutional question.
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