Module 6A

Parliamentary vs. Constitutional Supremacy

• Parliamentary Supremacy- Parliament (the national legislature) can adopt or alter any law, and courts cannot overturn it.

  • Canada (pre-1982) possessed limited parliamentary supremacy due to a federal division of powers, meaning power was shared between federal and provincial governments.

  • If one level of government intruded on the other’s jurisdiction (area of authority), the dispute went to the Supreme Court of Canada.

  • The U.K. is cited as the classic case of total parliamentary supremacy, where Parliament holds ultimate power.

• Constitutional Supremacy- The Constitution is the ultimate authority. Courts possess the power of judicial review (ability to strike down legislation or government action inconsistent with the Constitution).

  • Canada transitioned from limited parliamentary supremacy to constitutional supremacy with the 1982 patriation of the Constitution and the introduction of the Charter of Rights and Freedoms.

Core Judicial Principles

• Rule of Law- All citizens are treated equally before the courts; laws are applied consistently and without discrimination, regardless of status.

• Judicial Impartiality- Judges must decide cases without bias, strictly on evidence and objective legal interpretation, upholding the presumption of innocence.

• Judicial Independence- Judges are protected from executive or legislative influence, ensuring unbiased decisions.

  • This is guaranteed by measures like secure tenure until retirement and salaries set by independent mechanisms, not politicians.

Foundations of Canadian Law

• Public Law (affects society at large; citizen–state relations)- Governs the relationship between individuals and the government. Includes Criminal, Constitutional, and Administrative law.

• Private Law (individual/organizational relations without broad public concern)- Deals with legal relationships between individuals/organizations.

  • Common-law tradition: Practiced in 9 English-speaking provinces; relies on precedent (past court decisions as guides). Parliament/legislatures can codify or override precedents.

  • Civil-law tradition: Unique to Quebec; based on a written Civil Code (detailed laws covering family, wills & estates, property, etc.).

  • Despite private-law duality, all public law across Canada—including Quebec—rests on common-law precedent.

Key Executive Actors

• Minister of Justice / Attorney General (federal & provincial)- Oversees the justice system, proposes judicial appointments, administers criminal justice, represents the Crown (state) in civil cases, and advises government departments.

• Minister of Public Safety- Manages policing, correctional services (prisons), emergency management, and community security.

Judicial Functions

1. Guardianship (upholding the Constitution)- Courts act as protectors of the Constitution, conducting judicial review of laws/actions for Charter compliance & division-of-powers conformity.

   • Reference Cases: Governments ask courts for constitutional opinions on proposed or enacted measures (federal to SCC; provinces to Courts of Appeal) before they face challenges.

2. Adjudication- The traditional role of courts: settling private disputes (contracts, property), conducting criminal prosecutions, and resolving citizen–government conflicts.

3. Guidance / Inquiries- Judges may chair task forces, commissions, or inquests, offering expert guidance on complex issues.

Peace Officers & Crown Attorneys

• Peace Officers: Individuals like police, customs, corrections, and parole officers, legally empowered to enforce laws.

• Crown Attorneys: Government lawyers who decide on and prosecute criminal charges on behalf of the state/community.

Canadian Court Hierarchy

• Provincial & Territorial Courts (first level)- Entry-level courts handling less serious matters like small claims, youth, municipal, family, and traffic cases.

• Provincial/Territorial Administrative Tribunals (special-purpose bodies)- Specialized bodies (not traditional courts) that resolve specific disputes or make decisions within a particular area of law (e.g., Landlord–Tenant Boards, Immigration & Refugee Board).

• Superior Courts (s.96 courts)- Federally appointed courts handling serious civil/criminal matters, divorces, and appeals from lower provincial courts. Names vary by province.

• Courts of Appeal (provincial/territorial/federal)- Review lower-court decisions for correct legal procedure and application; judges are federally appointed, provincially funded (except Federal Court of Appeal).

• Federal Courts- The Federal Court & Federal Court of Appeal handle legal issues exclusively related to federal laws (e.g., citizenship, immigration, patents, maritime law).

• Supreme Court of Canada (SCC)- The highest court in Canada, serving as the final court of appeal since 1949.

  • Composition: 1 Chief Justice + 8 Puisne Justices = 9 total.

  • Hears approximately $100$ cases/year, choosing matters of national importance.

Judicial Appointments

• Provincial Courts- Candidates apply and are reviewed by provincial Judicial Appointments Committees. The provincial Attorney General forwards names for appointment by the Lieutenant-Governor-in-Council.

• Superior Courts (federal appointment)- Federally selected Advisory Committees screen applicants. The Governor-in-Council appoints based on the Minister of Justice’s recommendation.

• Supreme Court of Canada- Regional convention: $3$ from Quebec (for civil-law expertise), $3$ Ontario, $2$ Western Canada, $1$ Atlantic.

  • The process involves consultations, short-lists vetted by a multiparty committee, and PM selection (occasional non-binding public hearings).

  • Post-2016 reform: Any qualified jurist can apply; functional bilingualism is now required.

Pre-1982 Canadian Bill of Rights (1960)

• An ordinary statute (not constitutional) promoted by PM John Diefenbaker.

• Recognized principles like the supremacy of God, human dignity, and family.

• Contained rights such as speech, religion, life, liberty, and security.

• Limitations:

  1. Applied only to federal laws.

  2. As an ordinary statute, it was easily amended or repealed.

  3. Included its own notwithstanding clause (s.2) allowing Parliament to override certain rights.

• Ultimately had minimal direct impact but set a precedent for rights discourse.

Constitution Act, 1982 & Charter of Rights and Freedoms

• Key Parts: The patriation of Canada's Constitution (bringing amendment power to Canada) included:

  1. Charter of Rights and Freedoms.

  2. Rights of Aboriginal Peoples.

  3. Equalization & regional disparities clause (to ensure comparable public services across provinces).

  4. Amending formula (specific procedure for changing the Constitution without British approval).

• Signed by every province except Quebec (still legally binding nationwide).

Charter Rights Breakdown

• Fundamental Freedoms (s.2): Basic human freedoms: conscience, religion, thought, belief, opinion, expression, press, peaceful assembly, association.

• Democratic Rights (ss.3-5): Rights to participate in democracy: vote, run for office, mandate limits, sitting of legislatures.

• Mobility Rights (s.6): Right to enter/leave Canada; move & earn livelihood across provinces.

• Legal Rights (ss.7-14): Protections in the justice system: life, liberty, security of person; protection against unreasonable search/seizure, arbitrary detention; fair trial; presumption of innocence; prohibition of cruel & unusual punishment.

• Equality Rights (s.15): Ensures equal treatment before/under the law; no discrimination based on race, national/ethnic origin, colour, religion, sex, age, mental/physical disability.

• Official Languages & Minority-Language Education (ss.16-23): English/French are official languages; linguistic service guarantees; right to schooling in minority language based on parental education and community numbers.

• What’s NOT included- No explicit property rights.

  • No social/economic rights (e.g., minimum income, healthcare), which are generally considered policy matters rather than constitutional rights in Canada.

Limits on Charter Rights

• Section 1 – “Reasonable Limits” Clause- Rights are not absolute, subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This allows the government to limit a right if it can prove the limit is reasonable and necessary.

  • Oakes Test (from R. v. Oakes) operationalizes s.1 (a legal test to determine if a limit on a Charter right is acceptable):

    1. Pressing & substantial objective. The law infringing a right must serve a very important and urgent goal.

    2. Proportional means: The method chosen must be appropriate for the goal, including:

       • Rational connection. A clear, logical link between the measure and the objective.

       • Minimal impairment of rights. The least restrictive means possible must be chosen.

       • Proportionality between infringement & objective. The benefits of the objective must outweigh the negative impact on the right.

• Section 33 – Notwithstanding Clause- Parliament/provincial legislatures may declare an Act (or section) operative “notwithstanding” (despite) certain Charter guarantees, allowing them to temporarily override specific rights.

  • Applies to $s.2$ (fundamental freedoms) & $ss.7-15$ (legal & equality rights); cannot override democratic (ss.3-5), mobility (s.6) or language rights (ss.16-23).

  • Declaration lasts $5$ years, renewable.

Prominent Uses of s.33

• Quebec Bill 101 (Ford v. Quebec, 1988)- SCC struck down French-only commercial sign law. Quebec invoked s.33 to keep it, but allowed it to lapse. Current rule (SCC suggestion): French must be predominant (≈ $frac{2}{3}$ vs. $frac{1}{3}$) on signs.

• Quebec Bill 21 (2019) – Religious Symbols Ban- Pre-emptive s.33 invocation to protect the law from Charter challenges; litigation ongoing—headed to SCC. Debate over procedural limits on pre-emptive use.

Debates on Charter Impact

• Judicial Activism Critique- Argues unelected judges have too much power to make policy, imposing personal/ideological views over elected legislatures.

  • Ted Morton & Rainer Knopff: Claim the Charter fosters a “court party” of minority groups, lawyers, and rights organizations.

  • Michael Mandel (left critique): Argued courts empower corporate/elite interests, reducing popular control; early SCC cases sometimes protected business speech over public welfare.

• Dialogue Theory (Proponents)- Suggests the Charter creates an iterative exchange between courts and legislatures; legislatures often revise laws after Charter rulings within court-set time frames.

  • Political scientists remain skeptical, seeing less “dialogue” than legal scholars claim.

• Additional Controversies/Observations

  • New political venue for marginalized groups → democratizing effect.

  • Politicians may “pass the buck” to courts to avoid blame for tough policies.

  • Rise of “rights talk” complicates compromise—rights framed as absolute.

  • Alleged emergence of a legal elite dominating public policy.

  • Potential tension between individual rights culture and collective/community goals.

  • Serves as a potent nation-building symbol; polls show Canadians rank the Charter among top national identifiers.

  • Uniform Charter standards may undercut provincial diversity—though s.33 provides room for divergence.

Quick Reference: Numbers & Facts

• SCC composition: $9$ justices (1 Chief + 8).

• SCC caseload: ≈ $100$ appeals/year.

• Notwithstanding clause duration: $5$-year sunset (renewable).

• Quebec linguistic signage compromise: French ≈ $frac{2}{3}$ of sign; other languages $frac{1}{3}$.