DCC 2118 - Lesson 8 Judicial Review

Division of powers

  • Section 91 (1867): Grants power to the federal government for the peace, order, and good government of Canada. National interest matters fall under federal jurisdiction, while regional matters are often provincial (e.g., tax, sale of public lands).

    • In a situation where a matter falls under both federal and provincial powers, federal powers prevail until it is contested

    • Section 44 allows the amendments to division

  • Residual Powers: Parliament has residual powers, including new ones arising in the future not granted to the provinces (e.g., radio televisions, citizenship, nuclear powers, postal service, trade).

    • Residual powers give the federal government authority over matters that may arise in the future but were not specifically addressed in the original division of powers. It ensures that the federal government has the ability to legislate on issues essential to the nation's well-being, even if those issues were not foreseeable when the Constitution was drafted.

Difference Between Sections 91 and 92

  • Section 91: exclusive powers for the federal legislature, covering public debt, property, postal service, census, and stats.

  • Section 92: Exclusive powers for provincial legislatures, covering civil rights, schooling, hospitals, and prisons.

  • Concurrent/Shared Powers: Since the confederation of Canada, resources and society overall has evolved therefore there needs to be the interpretation of the constitution with dynamic (living tree). For example, environmental concerns were not originally enumerated but are now shared (e.g., Crown v Hydro).

  • Solution to Disputes: Federal laws prevail in areas like immigration and agriculture (Section 95), while provincial laws prevail in areas like education and pensions (Section 94) but are subject to provincial regulations.

    • However, federal powers can delegate certain powers to provincial powers

Equalization of Natural Resources

  • Section 36: Ensures Canadians have access to similar public services with similar taxation. Equalization is financed through federal government taxes.

  • Provincial Powers: Provinces initially had exclusive powers over non-renewable resources, but now there are shared powers.

  • Aboriginal and Treaty Rights (Section 35): Recognizes and affirms the rights of aboriginal peoples. This includes land rights and any treaties signed

    • Neither federal nor provincial can take action that affects those constitutionally protected rights without consultation compromise, and compensation is required before actions affect these rights.

Amendments to the Division of Powers

  • Amendments: The constitution is a living tree; amendments can be made. Parliament gained power in 1949, and the Constitution Act of 1982 allows changes with provincial approval (Section 44).

    • Section 44: replaces section 91 paragraph 1 and states that subject to provincial approval in certain cases parliament can make laws amending the Constitution in relation to the exclusive executive Government of Canada or the Senate and House of Common or is decriminatory of these bodies of government.

  • Senate Changes (2014): Rule of 7 + 50: 7 provinces and at least 50% of the population approval needed for Senate changes including the appointment of senators.

  • Provinces usually have the right to amend their constitution, with the exception of the lieutenant governor's rights.


Amendments to the Constitutional Distribution of Legislative Powers

Importance of Amendment Balance

  • Fundamental powers (constitution) should be protected but allow for necessary changes over time.

  • Balance: Not too easy or difficult to change; should reflect evolving values

    • hard enough that there aren’t constant changes but easier enough to change with the times such as environmental and gender concerns.

Pre-1982 Amendment Process

  • Before 1982, Canada sought changes through the British Parliament.

  • The drafters and fathers of the Canadian constitution saw the need for a self-amending formula for patriation; which is now listed in Sections 38 to 49. There are a total of five different formulas

Amending Formula

  1. General Formula (Section 42):

    • Standard method for most changes unless another formula is specified.

      • Example: changing the powers of senators and how they’re are appointed

    • Requirements approval from:

      • The executive branch

      • Senate

      • House of Commons

      • Minimum of at least 7 provinces and 50% of the Canadian population

  2. Unanimous Formula (Section 41):

    • Reserved for crucial amendments requiring agreement from all provincial and federal governments.

      • Examples: significant changes like language rules, amending formula itself, and royal titles.

    • Requirements: approval from

      • All provinces

      • Federal Government

        • Executive and Legislative (Senate, House of Commons, Cabinet and Prime Minister)

  3. Specific Provincial Authorization (Section 43):

    • For changes affecting some but not all provinces.

    • Requirements: approval of

      • Ascent of the two house

      • The involved provinces’ approval

  4. Federal Institutions (Section 44):

    • Unilateral federal amendment for provisions not under a unanimous or general formula.

    • Requirement: approval from

      • Parliament

  5. Provincial Constitution (Section 45):

    • Each province can modify its own constitution if changes don't involve or interfere with other provinces or federal matters

    • Requirements:

      • provincial parliment

Post-1982 Amendments

  • Limited use of formulas.

  • Notable change in 1983: General formula used to include Aboriginal rights.

  • 7 + 50 rule doesn't apply to territories, constituting about 3% of the Canadian population.

Judicial Independence

Definition and Sources

  • Definition: aim to ensure that judges are appointed impartially, have the necessary protections to remain independent, and are not subject to undue influence or interference.

  • Section 101: SCC stands at the top of the Canadian judicial system.

  • Judicial Independence Characterization: Unwritten principle with constitutional sources.

    • Division of powers necessitates independent courts for dispute resolution.

    • Canadian Charter of Rights and Freedoms (1982) defends civil liberties against government intrusion.

    • Preamble of Constitution Act (1867) aligns Canada's constitution with the UK, recognizing judicial independence.

Sections and Purpose

  • Section 96: Appointment Authority

    • grants the federal government the authority to appoint judges to provincial superior courts.

  • Section 99(1): Security of Tenure:

    • once a judge has been appointed, the government has no control over how long the judge will serve

      • Judges must be paid sufficiently to resist external pressures.

  • Section 100: Judicial Compensation

    • Stipulates that the salaries, allowances, and pensions of judges shall be determined and provided by Parliament.

    • Judges must be paid sufficiently to resist external pressures.

  • Section 101: Establishment of Federal Courts and Protection of Essential Features:

    • Grants the federal government the authority to establish a "General Court of Appeal for Canada" and additional courts for the better administration of the laws of Canada.

The SCC Of Canada

  • Created in 1875 (Section 101, Constitution Act, 1867).

  • Initially lacked independence; major amendments in 1982 changed SCC's status.

  • Composition changes now require consent of both federal houses and unanimous provincial agreement.

  • Constitutional changes related to the SCC need approval from federal houses and ⅔ of provinces representing 50% of the Canadian population.