DCC 2118 - Parliamentary Sovereignty

The reception of international law in domestic law 

  • Connection Between International and Domestic Law:

    • Examining if international law regulating state conduct affects domestic legal systems.

    • Questioning its impact on rights and obligations for individuals, corporations, and government organs.

  • Supremacy of International Law:

    • Citing the 1969 Vienna Convention, stating international law prevails over domestic law.

    • Referring to international jurisprudence supporting this supremacy.

  • Recognition Systems:

    • Monistic System:

      • Viewing international and domestic law as part of the same legal order.

      • Immediate enactment of ratified treaties into domestic law without parliamentary approval.

      • Adopted by France, Netherlands, US, Canada, etc.

    • Dualistic System:

      • Treating international and domestic law as separate systems.

      • Requiring transformation of international law into domestic law by the legislature.

      • Maintaining the supremacy of domestic law.

      • Adopted by the UK, Italy, Germany.

  • Reasons for Dualistic System:

    • Protecting state sovereignty.

    • Ensuring compliance with constitutional laws.

    • Demonstrating and exercising sovereignty.

  • Challenges with Dualistic System:

    • Noting inconveniences like delays in transforming international norms into domestic law.

    • Highlighting potential dangers of violating treaties before domestic enactment.

  • Canada's Approach:

    • Employing both systems — dualistic for treaties, monistic for customs like human rights and war crime laws.

    • Describing the role of the executive in ratification and the legislative branch in implementation.

    • Referring to the recognition of international customs in Canadian case law.

  • Canadian Practice and Conditions for Reception:

    • Referring to the American troop stationed in Canada case and the form MPC Case.

    • Outlining conditions for the reception of international custom in domestic law:

      • Clear definition of the custom.

      • No contradiction with existing laws.

      • Complementing or filling gaps in established laws.

  • Conclusion

    • Canada uses a dualistic approach for treaties and a monistic approach for customs, seeking a balance between international commitments and domestic legal principles.

Parliamentary Privilege

  • Definition:

    • All rights, powers, and immunities to protect Parliament and its members from interference.

    • Applies to the House of Commons as an institution and its individual members.

  • Purpose:

    • Protects the House and its members' procedures from undue interference.

    • Enables the fulfillment of legislative, deliberative, and governmental accountability responsibilities.

  • Historical Adoption:

    • Established in the Constitution Act of 1867.

    • Initially bound by UK powers; expanded after the Constitution Act of 1982.

  • Balancing with Canadian Charter of Rights and Freedoms:

    • Privilege must coexist and be balanced with the Canadian Charter of Rights and Freedoms.

    • The application of privilege in Canada needs to consider both elements.

  • Components of Privilege:

    • Sum of rights enjoyed collectively by each house and individually by members.

    • Originated from English and Westminster traditions.

  • Rights and Immunities:

    • Individual Members:

      • Freedom of speech.

      • Freedom from arrest in civil actions.

      • Exemption from jury duty and being subpoenaed.

      • Freedom from obstruction, interference, and intimidation.

    • House of Commons (Collective Rights):

      • Disciplinary powers.

      • Regulation of internal affairs.

      • Institution of inquiries.

  • Limitation of Privilege:

    • Courts, not Parliament, determine the existence and extent of privilege.

    • Claiming privilege is crucial for Parliament to carry out its functions without external interference.

  • Conclusion:

    • In conclusion, parliamentary powers, encapsulated in the doctrine of parliamentary privilege, serve as a cornerstone to safeguard the autonomy of Parliament and its members. Established to shield legislative proceedings from undue interference, these privileges are enshrined in the Constitution Act of 1867, with subsequent expansions reflecting the evolution of Canadian constitutional autonomy after 1982.

      Parliamentary privilege, while essential for the effective functioning of the parliamentary system, must harmonize with the principles outlined in the Canadian Charter of Rights and Freedoms. This delicate balance ensures that the exercise of privilege remains within the constitutional framework, respecting individual rights while upholding the integrity of parliamentary procedures.

Division of Powers

  • Definition:

    • Ensures freedom by entrusting legislative, executive, and judicial powers to different branches.

    • Further divided between federal and provincial levels.

  • Branches of Government:

    • Legislative, executive, and judicial branches.

    • Power division between federal and provincial levels.

  • Limitation of Parliamentary Supremacy:

    • Laws must stay within constitutional bounds.

    • Parliament's actions are bound by the constitution.

  • Responsible Government Principle:

    • The executive is drawn from and requires support from people's representatives in the house.

    • The GG signs legislative bills approved by both houses.

  • Prime Minister's Access to Power:

    • PM has access to every level of federal government.

    • Overlap in executive and government control, especially through the PMO.

  • Branches of Government - Constitutional Control:

    • Established by the Constitution Act of 1867.

    • Functional connection for constitutional control over each other.

    • Parliament enacts laws, executive reserves bills, and judiciary interprets laws.

  • Senate and Federal Legislation:

    • Senators appointed by GG on the PM's advice, representing regions.

    • Parliament, especially the House of Commons, holds the authority to make federal laws.

  • Executive Powers (Sections 9 to 16):

    • Defined in sections of the Constitution Act of 1867.

  • Conclusion:

    • The division of powers, grounded in the theory that the separate branches of the legislative, executive, and judicial serve as checks against concentration, forms the bedrock of Canada's constitutional structure. This division, as outlined in the Constitution Act of 1867, extends both horizontally between federal and provincial levels and vertically among the legislative, executive, and judicial branches. While there is a degree of overlap in the executive and legislative branches, the constitutional constraints, particularly the Responsible Government principle, prevent an overreach of power. In essence, the intricate web of parliamentary powers and the division of powers underpin Canada's constitutional framework, ensuring a delicate equilibrium that upholds democratic principles, protects individual rights, and fosters governmental accountability. This constitutional design reflects the ongoing commitment to a system of governance that balances authority and responsibility at both the federal and provincial levels, establishing a resilient foundation for the Canadian legal and political landscape.