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

Access to Legal Education

This article was presented as a lecture on "Capital Law School Day" organised by the Institute of Advanced Legal Studies to mark the occasion of the centenary of the Faculty of Law, Victoria University of Wellington in 1999

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

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

Jurisdiction Over Telecommunications: Alberta Government Telephones v. CRTC

In Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, the Supreme Court of Canada held that AGT was a federal undertaking, but that as an agent of the provincial Crown, it was not bound by regulations of the CRTC, made under the authority of the federal Railway Act. AGT is therefore presently unregulated. The author proposes that AGT was characterized as a federal undertaking on the basis of its membership within Telecom Canada and its border connections with neighbouring telephone companies, which allow it to provide interprovincial and international service. The AGT decision leaves open, however, the issue of the constitutional status of regional and municipal telephone companies which also provide interprovincial and international service, through cooperative arrangements with larger interprovincial companies. The author considers that the AGT decision is likely to bring about important changes in the telecommunications industry. Following the decision, the federal government introduced a bill declaring that the Railway Act is binding on agents of the provincial Crown, thus abolishing AGT\u27s immunity as a provincial Crown agent and subjecting AGT to CRTC regulation. The author predicts that the bill, if passed, will lead to competition in the provision of long-distance telephone services

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