COMPARATIVE CONSTITUTIONAL LAW

Class 6

September 11 2006

Map of the Human Heart (1993)

• Excellent film focusing on Native Canadians (half-Inuit boy, half-Cree girl)

• Directed by Vincent Ward

• Music by Gabriel Yared (former law student!)

WRAP UP: We Compared Canada and US

• Origins of Constitution (stability, flexibility)• What constitutes the Constitution (multiple

documents, unwritten principles)• Different Type of Modern Democracy

(Constitutional Monarchy that relies on political conventions)

• Amendment (more than one formula, 7-50 or unanimous formulas very difficult to achieve, referenda prob. required, s. 43 amendments easier)

• Supreme Court (not entrenched other than ss. 41, 42)

JUSTICES OF THE SUPREME COURT OF CANADA

The Hon. Beverley McLachlin, P.C.

• Alberta/British Columbia 1989 (Brian Mulroney) Chief Justice 2000 (Jean Chretien)

The Honourable Mr. Justice Michel Bastarache

• New Brunswick 1997 (Jean Chretien)

The Honourable Mr. Justice William Ian Corneil Binnie

• Ontario 1998 (Jean Chretien)

The Honourable Mr. Justice Louis LaBel

• Quebec 2000 (Jean Chretien)

The Honourable Madam Justice Marie Deschamps

• Quebec 2002 (Jean Chretien)

The Honourable Mr. Justice Morris J. Fish

• Quebec 2003 (Jean Chretien)

The Honourable Madam Justice Rosalie Silberman Abella.

• Ontario 2004 (Paul Martin)

The Honourable Madam Justice Louise Charron

• Ontario 2004 (Paul Martin)

The Honourable Mr Justice Marshall Rothstein

• Manitoba 2006 (Stephen Harper)

The Honourable Madam Justice Louise Arbour

• (Ontario) 1999-2004• Currently U.N. High

Commissioner for Human Rights (2004- )

The Honourable Mr. Justice John C. Major

• (Alberta) 1992-2005• Appointed by Brian

Mulroney

SEPARATION OF POWERS

• Review

SEPARATION OF POWERS

• Judicial Independence: Explicit constitutional guarantees?

Constitution Act 1867

• Section 99(1) Subject to subsection two of this section, the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons

Constitution Act 1982

• 11. Any person charged with an offence has the right …

• (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Are there implied guarantees of judicial independence?

Are there implied guarantees of judicial independence?

• Re Remuneration of Judges [1997] 3 SCR 3

• Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice) [2005] 2 S.C.R. 286 Unanimous decision (McLachlin, Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron)

Federal Judicial Salaries Bill• Federal legislation

introduced in June 2006 to raise salaries of 1100 federal judges by 7.25 per cent (independent commission recommended 11 per cent)

Under the proposed bill:• CJ McLachlin would get

$298,500 (not the $308,400 the commission recommended)

• Her colleagues would earn $276,400, instead of $285,600.

Compare: US Constitution

• Art III s. 1 The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Advisory Opinions

• Compare jurisdiction of Supreme Court of Canada and US to give advisory opinions to questions referred by the federal/state/provincial government

Advisory Opinions

• Example: Patriation Reference : Re Resolution to Amend the Constitution [1981] 1 SCR 753

• Pierre Elliott Trudeau (PM (Liberal) 1968-1979,1980-1984) strong nationalist

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

• All Commonwealth realms had right of appeal to Privy Council in England. Some retained this after independence but many began to find it out of tune with their values

FEDERALISM

• Relationship between Canadian federal government and the provinces.

LEGISLATIVE POWERS

• Where are these found in the Canadian Constitution?

LEGISLATIVE POWERS

• Where are these found in the Canadian Constitution? Section 91 (29 heads of federal power) and section 92 (16 heads of provincial power)

• Compare with U.S. Constitution Art. I § 8 and Amendment X.

OVERLAPPING POWERS

• Do the federal and provincial powers overlap?

OVERLAPPING POWERS

• Do the federal and provincial powers overlap?

• E.g. 92(13) provincial power over property and civil rights in the province; 91(2) federal power to regulate trade and commerce; 91(19) interest, 91(21) bankruptcy/insolvency

• How did Privy Council generally deal with overlap in its case law?

DETERMINING WHICH LIST OF POWERS APPLIES TO A

PARTICULAR LAW

• Pith and substance of the law

• Laws with a double aspect

PARAMOUNTCY OF FEDERAL LAW

• If there is conflicting federal and state law, federal law prevails.

• Compare to Article VI

PEACE, ORDER AND GOOD GOVERNMENT

• Paix, ordre, et bon gouvernement• Preamble to Section 91: It shall be lawful for

the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces Was this interpreted broadly by the Privy Council? Like the N & P Clause in Art. I § 8?

PEACE, ORDER AND GOOD GOVERNMENT

• Was section 91 this interpreted broadly by the Privy Council? In general, no

• Gap-filling (but only over incorporation of companies with non-provincial objects that did not fall w/in s. 92(11)

• Emergencies• PROBLEMATIC LANGUAGE AND

STRUCTURE IN sections 91 and 92• Hogg suggests the language is the result of

conflicting goals.

Section 132 Constitution Act 1867

• The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.

Labour Conventions [1937] AC 326 (PC)

• Lord Atkin: while the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure

• Effect of this case? (still good law)

F.R. Scott’s critique

• So long as Canada clung to Empire treaties and no doctrine of ‘watertight compartments’ existed; once she became a nation in her own right, impotence descended.

EMERGENCY FEDERAL POWERS

• Did the Privy Council take the view that the POGG power of the federal government was broader power during emergencies?

• What about the Canadian Supreme Court?

National Concern

• Another branch of POGG recognized by Supreme Court of Canada after 1949.

• For a matter to qualify as a matter of national concern, . . . It must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconciliable with the fundamental distribution of legislative power under the Constitution. EXAMPLES?

OVERLAPPING POWERS

• E.g. 92

BROAD INTERPRETATION OF PROVINCIAL POWERS

• Especially s. 92(13): In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, . . . property and civil rights in the province.