Formal Amendment of the Constitution of Canada

Canada\u27s Constitution Act of 1982 is discussed. The act changed the way in which amendments to Canada\u27s constitution were made. Previously, the Imperial Parliament made the amendments

A Question of Parliamentary power: Criminal Law and the Control of Greenhouse Gas Emissions

The federal government proposes to impose limits on greenhouse gas emissions by large industrial emitters. But under what authority could Parliament implement the regulations?economic growth and innovation, greenhouse gas emissions, Parliament of Canada, cap-and-trade system

The Constitutional basis of aboriginal rights

Aboriginal rights are rights held by aboriginal peoples, not by virtue of Crown grant, legislation or treaty, but “by reason of the fact that aboriginal peoples were once independent, self-governing entities in possession of most of the lands now making up Canada.” It is, of course, the presence of aboriginal peoples in North America before the arrival of the Europeans that distinguishes them from other minority groups in Canada, and explains why their rights have special legal status. However, the extent to which those rights had survived European settlement was in considerable doubt until as late as 1973, which was when the Supreme Court of Canada decided the Calder case.2 In that case, six of the seven judges held that the Nishga people of British Columbia possessed aboriginal rights to their lands that had survived European settlement. The actual outcome of the case was inconclusive, because the six judges split evenly on the question whether the rights had been validly extinguished or not. However, the recognition of the rights was significant, and caught the attention of the Government of Canada, which began to negotiate treaties (now called land claims agreements) with First Nations in those parts of the country that were without treaties. That resumed a policy that had been abandoned in the 1920s, when the last numbered treaty was entered into

Federalism and the Jurisdiction of Canadian Courts

The federal form of government does not need a dual court system corresponding to the dual legislative and executive authorities. No such system was established at confederation. Yet a dual court system has now developed through the establishment and expansion of federal courts. The jurisdictional problems inherent in a dual court system have been exacerbated by recent decisions of the Supreme Court of Canada, forcing the fragmentation of litigation between the federal and provincial courts, and producing an unnecessary increase in the number of disputes which cannot be resolved in one lawsuit. This has occurred through the failure by the Supreme Court of Canada to accommodate its notions of federalism to the special nature of the administration of justice.Lorsqu'on a un gouvernement de type fédéral, il n'est pas nécessaire d’avoir un système dualiste de tribunaux en corrélation avec les autorités législatives et exécutives. Il n'en a d'ailleurs pas été question au moment de la confédération. En dépit de cela, un tel système s'est toutefois développé par le truchement des cours fédérales. Ce dualisme a engendré des problèmes juridictionnels qui, par la suite, ont été amplifiés par les décisions récentes de la Cour Suprême du Canada. De tels conflits provoquent le partage des litiges entre les cours fédérales et provinciales. Ils ont aussi pour effet d'accroître le nombre de litiges qui ne peuvent être tranchés au moyen d’une seule poursuite. Il semblerait donc que la Cour Suprême du Canada en s'abstenantd'adapter sa conception du fédéralisme à celle de la nature même de l'administration de la justice soit la cause de cet imbroglio

The Brilliant Career of Section 7 of the Charter

Section 7 of the Charter of Rights was not intended by the framers to be a provision that authorized extensive judicial review of legislation. The protection of property was deliberately not included in its text in order to reduce its scope — and the potential for judicial review. and the phrase “the principles of fundamental justice” was intended to cover only procedural due process. Contrary to expectations in 1982, over the succeeding 30 years the Supreme Court of Canada has given an expansive interpretation to section 7 and used it to strike down a variety of laws, including the criminalization of abortion, criminal offences that lack the element of mens rea, “overbroad” laws, “disproportionate” laws and “arbitrary” laws. The last three categories permit the Court to review any law that has an effect on life, liberty or security of the person to determine whether the law is in fact fulfilling its objective, or undermining the objective by doing more harm than good. Under these categories, the Court has struck down restrictions on the liberty of convicted sex offenders, restrictions on the liberty of those mentally unfit to stand trial, the prohibition of private health care insurance, and the attempted closing of a safe injection site for drug addicts. at the time of writing, lower courts have struck down the Criminal Code provisions respecting prostitution and physician-assisted suicide, issues that will have to be resolved by the Supreme Court. The 30-year history of section 7 has been remarkable, attracting criticism from those who deplore the shift of policy-making in a democracy from elected legislative bodies to unelected judges. And, of course, there is support for the decisions from those who believe that, even in a democracy, dysfunctional laws should be subjected to an independent, evidence-based review of their impact, especially on individuals who are unpopular or who have little political power. It is hard to predict whether this activist phase, in which the Supreme Court has so greatly expanded judicial review under section 7, will continue into the next 30 years. If so, the n the “career” of section 7 will become even more “brilliant”

The Role of a Chief Justice in Canada

Professor Hogg describes the duties of Chief Justices in Canadian courts, and explains that the effective discharge of their many administrative functions plays a significant role in maintaining the independence of the judiciary

The Difficulty of Amending the Constitution of Canada

The Charlottetown Accord of 1992 was a set of proposals for amendments to the Constitution of Canada. These proposals were designed to achieve a national settlement of a variety of constitutional grievances, chiefly those arising from Quebec nationalism, western regionalism, and Aboriginal deprivation. The Accord was defeated in a national referendum. In the case of Quebec, the defeat of the Charlottetown Accord, following as it did on the defeat of the Meech Lake Accord, has made the option of secession relatively more attractive, but there are sound pragmatic reasons to hope that Quebec will not make that choice. In the case of the West, there is evidence that the westward movement of wealth and political power is resolving regional grievances without the need for constitutional amendment. In the case of the Aboriginal peoples, the settlement of their land claims and their progress towards self-government can proceed under the existing Constitution. Thus the failure of comprehensive constitutional reform should not preclude Canada from managing the tensions that the reform movement was designed to resolve

Remedial Power of Administrative Tribunals

This paper examines the power of administrative tribunals to grant remedies for breaches of the Charter of Rights. That power is now extensive. Under the supremacy clause of section 52 of the Constitution Act, 1982, an administrative tribunal that has the power (express or implied) to decide questions of law can also decide on the constitutionality of laws, including even the constitutionality of provisions of its own enabling statute. Under the remedial clause of section 24 of the Constitution Act, 1982, an administrative tribunal that is deemed to be a “court of competent jurisdiction” (and most tribunals are) can award a declaration, injunction, costs, or other appropriate and just remedy, for breach of the Charter of Rights. Whenever an administrative tribunal grants a Charter remedy, whether under section 52 or section 24, it is subject to judicial review on a standard of correctness