Constitutional Law Of Canada

Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the Courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.

Reviewable matters

Under the authority of section 52(1) of the Constitution Act, 1982 Courts may review all matters of law. Accordingly, the courts have a broad reaching scope of competence. Constitutional issues come before the court through disputes between parties as well as through reference questions. The Court has the discretion to hear any Constitutional issues as long as there is a sufficient legal component. The US constitutional political questions doctrine was rejected and so a political dimension to the issue does not bar it from Court.

Courts must be careful when considering reference questions. They are required to be careful to only answer questions that are not speculative, of a purely political nature, or unripe. When answering the questions the Court must retain its proper role within the constitutional framework.

Valid parties

A party must have standing ( locus standi ) to bring a constitutional challenge to the Courts. Those who wish to challenge a law can do so in one of several ways. A party who is directly affected by the law that proports to be unconstitional has standing as of right. Likewise, rights holder may challenge any law that will limit any of their rights. Those who are not protected by a right but are nonetheless prosecuted by that law may challenge it as well.

Public interest groups may also gain standing if they satisfy the requirements of the Borowski test . The group must demonstrate that the law raises a serious constitutional issue, the group has a genuine interest in the matter, and that there is no other reasonable and effective manner in which the issue may be brought before the Court.

Legislative competence

Main article: Canadian federalism

There are three approaches to challenging a law on the division of powers. A law may be challenged on its validity, applicability, or operability.

The validity of a law may be challenged where the core subject matter of the law is outside the legislative competence of the government. The analysis begins by determining the pith and substance of the law. This requires examining the purpose of the law as well as the legal and practical effects of the law. The matter identified is then assigned to the most appropriate legislative powers that are enumerated in sections 91 to 95 of the Constitution Act, 1867 .

The applicability of a law may be challenged where a valid law will, in certain circumstances, affect a subject matter that is allocated to the other "head of power". In this case the law can be held to be inapplicable to the matters outside of the government's competence through the doctrine of inter-jurisdictional immunity.

The operability of a law may be challenged where the provincial and federal governments have concurrent jurisdiction over certain matters of law and have each enacted legislation. If the two laws are found to be functionally incompatible then the provincial law will be declared inoperative under the doctrine of federal paramountcy.

Substantive rights

Main article: Canadian Charter of Rights and Freedoms

Introduced in 1982, the Canadian Charter of Rights and Freedoms is Canada's first constitutionally entrenched bill of rights. It protects a variety civil and political rights of people in Canada. Laws of Canada that violate any number of these rights may be struck down by the courts where it is found that the law violates a Charter right and cannot be demonstrably justified. Thus, a law that violates a right may remain in force so long as it is properly justified in accordance with section 1 of the Charter . Rights can also be temporarily overridden by the legislature through the notwithstanding clause. Legislators, however, have been sparing to invoke it.

Principles of interpretation

In Reference re Secession of Quebec, the Supreme Court characterized four fundamental and organizing principles of the Constitution (though not exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities.

Unwritten aspects of constitutional law

See also: Implied Bill of Rights

In rare cases, the courts have developed substantive rules of constitutional law that are not expressly set out in constitutional texts but rather implied by a number of different principles.

In Hunt v. T&N plc , 4 S.C.R. 289, the Supreme Court of Canada found that "the integrating character of our constitutional arrangements as they apply to interprovincial mobility" called for the courts of each province to give "full faith and credit" to the judgments of courts of other provinces – even though Canada's constitution does not have an express Full Faith and Credit Clause. The development of this implied Full Faith and Credit clause was criticized by at least one academic.

In Provincial Judges Reference , the Supreme Court found that there was an unwritten constitutional principle that protected a right to judicial salary commissions for provincial court judges.

Notes

1. ^ Quebec Veto Reference , 2 S.C.R. 79, at p. 805
2. ^ Operation Dismantle v. The Queen
3. ^ Quebec Secession Reference (1998)
4. ^ Reference re Canada Assistance Plan at p. 545
5. ^ see R. v. Big M Drug Mart
6. ^ Minister of Justice v. Borowski (1981)
7. ^ see Peter Hogg, Constitutional law of Canada (2005) at 15.8(a).
8. ^ J.-G. Castel. "Back to the Future!". Osgoode Hall Law Journal . http://www.ohlj.ca/archive/articles/33_1_castel.pdf . Retrieved 2007-02-17 .  

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