CANADIAN CONSTITUTIONAL LAW – LECTURE 1
What is constitutional law?
EMOND 6TH – Constitution encompasses 5 components: parliamentary democracy,
federalism, individual and group rights, aboriginal rights, and the principle of
constitutionalism. (pg 4)
Parliamentary Supremacy/Sovereignty
The parliament is supreme and that they are making, enacting and enforcing laws
The supreme court adds checks and balances to the parliament
o But the supreme court still gives deference to parliament
Federalism
Distribution of State power between a central authority (Federal Government) and
several regional authorities (Provincial/Territorial governments) in such a way that every
individual is subject to the laws of the 2 authorities
Not a hierarchy: central (Federal) and regional (Provincial) authorities are ‘coordinate’
authorities.
Division of Power
Separation of Powers
Part III - Federal Executive Power
Part IV - Federal Legislative Power
Part V - Provincial Executive and Legislative Powers
Part VII – Judicature
Supreme Court – essentially there for questions to be determined
Judicial Independence
CASE EXAMPLE: Re Remuneration of Judges
The provinces of Alberta, PEI, and Manitoba decided to lower the salary of provincial
court judges as a deficit reduction measure
The main issue:
o Does the guarantee of judicial independence in s.11(d) of the Charter restrict the
manner by and the extent to which provincial governments and legislatures can
reduce the salaries of provincial court judges?
Answer:
o There is a constitutional norm that protects the judicial independence of all
judges.
o The Court examined s.11(d) and identified three fundamental requirements of
judicial independence:
security of tenure,
financial security,
some administrative independence.
Judicial independence is a core principle of Canadian democracy and is critical to a well-
functioning justice system.
This principle is reinforced by a knowledgeable and informed judiciary, which is key to
maintaining public confidence in the justice system and the rule of law.
Parliamentary Privilege
CASE EXAMPLE: New Brunswick Broadcasting Co. v Nova Scotia (1993) SCC
There was no audio/visual oversight of parliament
CBC wanted to televise parliament and the gov’t of Nova Scotia opposed it
The court officially ruled that the parliamentary privilege is an unwritten constitutional
convention
Therefore, the CCRF does not apply to members of the House of Assembly
CASE EXAMPLE: Canada (House of Commons) v Vaid [2005] SCC
This case developed the test of necessity
A chauffeur was fired by several house representatives because he allegedly refused new
duties. The house then made the chauffeur position bilingual and Vaid had to go to
French training. Finally, due to reorganization, the chauffeur position was made a surplus
and
The test of necessity:
o The assembly or member seeking immunity under parliamentary privilege must
show that the sphere of activity for which privilege is claimed is so closely and
directly connected with the fulfillment by the assembly or its members of their
functions as a legislative and deliberative body, including the assembly's work in
holding the government to account, that outside interference would undermine
the level of autonomy required to enable the assembly and its members to do
their legislative work with dignity and efficiency.
Royal Prerogative
How the crown exercises its power
There is no conclusive list of prerogative powers but it is generally accepted that the
powers include:
o the appointment of the Prime Minister;
o the summoning, proroguing and dissolving Parliament;
o Royal Assent;
o the approval of Orders-in-Council and Proclamations;
o the Royal Prerogative of mercy and pardons;
o the making of treaties;
o declaring war and peace and the use of the Armed Forces;
