Notwithstanding Clause

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

What is the notwithstanding clause?

Section 33 of the Charter of Rights and Freedoms is commonly referred to as the “notwithstanding clause.” Its function is to prevent a court from invalidating a law that violates Charter provisions relating to fundamental freedoms (section 2), legal rights (sections 7-14), or equality rights (section 15).

Provincial or federal governments can use section 33 when they want to pre-emptively shield a law from judicial invalidation on these specific grounds, or when they want to revive a law that has already been invalidated by a court on these grounds. While an invocation of section 33 expires after five years (as per section 33(3)), there is no limit on the number of times that the clause can be reused for a given law (section 33(4)).

Crucially, section 33 cannot be used to shield a law from invalidation on the grounds that it violates democratic rights, mobility rights, or minority language rights under the Charter. It also can't be used to shield a law from invalidation on the grounds that it violates the Aboriginal and Treaty rights that are "recognized and affirmed" by section 35 of the Constitution Act, 1982.

Why do we have a notwithstanding clause?

When the Charter was being drafted, federal and provincial leaders were divided on whether it should contain a notwithstanding clause. For the most part, the clause's proponents (such as the premiers of Saskatchewan and Alberta) argued that it was a democratic backstop that would prevent unelected judges from holding too much power vis-à-vis the interpretation and enforcement of the Charter. By contrast, those opposed, including then Prime Minister Pierre Elliott Trudeau, thought that the clause could undermine the Charter by letting legislatures ride roughshod over rights. In the end, Trudeau was forced to compromise on the notwithstanding clause to ensure that the Charter was passed with the support of most provinces (all except Quebec).

When has it been used?

The notwithstanding clause has never been used by most provinces, nor by the federal government. It has, however, been used by Quebec, Saskatchewan, Alberta, and, most recently, Ontario. Here are a few well-known examples:

Quebec

  • Quebec did not sign the Constitution Act 1982 and subsequently passed legislation that added a standard notwithstanding clause to every law in force at the time. The clause was added to every new law passed until December 2, 1985, when a new government stopped the practice.
  • In 1988, Quebec used the clause in response to a Supreme Court of Canada decision that the province’s law allowing French-only on commercial signs offended freedom of expression.
  • In 2019, the Legault government used the clause preemptively to pass Bill 21, a law that prohibited certain public sector workers from wearing religious symbols in their workplaces.
  • In 2021, the Legault government used the clause preemptively for a second time to pass Bill 96, a law that included sweeping amendments to Quebec's Charter of the French Language, e.g. the expansion of the investigative powers of Quebec's language office.

Saskatchewan

  • Saskatchewan added the clause to protect strike-ending legislation in 1986. The government used the clause because they thought the law forcing strikers back to work would violate freedom of association. However, the clause was removed when the Supreme Court said that the law would not affect Charter rights.

Ontario

  • In 2021, the Ontario government used the notwithstanding clause for the first time to revive a law that was struck down by the Ontario Superior Court on free expression grounds. The law placed a $600,000 limit on expenditures for third party political advertising that applied for a full-year before the beginning of an official election campaign.

Natural Resources

By contrast to the manufacturing economies of Ontario and Quebec, the economies of the western provinces have traditionally emphasized primary production of oil, gas, wood, minerals and grains. These natural resources are sold largely in interprovincial and international markets. In the 1970s, the Supreme Court of Canada held that Parliament has paramount jurisdiction to legislate in relation to the export of natural resources. The decisions invalidated provincial taxes upon exported natural resources as “indirect taxation” (see taxation power), made provincial regulatory jurisdiction insecure and seemed to hollow out provincial ownership rights.

There were other provincial concerns about natural resources. The decisions of the 1970s could be extended to the generation, production and export of electrical energy. Moreover, electrical generation is done by an interconnected grid that can and does in many cases extend beyond the limits of a province. This additional fact can bring the whole undertaking within federal jurisdiction, as can the fact that electrical energy is regularly supplied to the United States. All of this heightened provincial complaints about the constitutional division of powers over natural resources at the end of the 1970s.

Section 92A of the Constitution Act, 1982 was designed and proclaimed against this background. Section 92A authorizes the provinces to legislate for the export of resources to other provinces, subject to Parliament’s paramount legislative power in the area. It also permits indirect taxation in respect of resources, subject to a requirement not to discriminate against other provinces by use of this new taxing authority. The power would appear to respond to provincial concerns by reversing the decisions of the 1970s and by expanding provincial taxing and regulatory jurisdiction over natural resources.

Mobility Rights

At their most basic, mobility rights allow individuals to move from place to place, largely free from government intervention. In a country as large and diverse as Canada, the ability to live and work in a location of your choosing, and enter and leave the country freely, are of great importance.

The significance of these rights is reflected in their inclusion as section 6 of the Charter of Rights and Freedoms.[1]

The Mobility Rights section of the Charter is subdivided into: (1) the mobility right of citizens and (2) the right to move and to gain a livelihood for citizens and permanent residents.

(1) The mobility right

This right allows all citizens of Canada to enter, remain in, and leave Canada as they please. To facilitate this right, the courts have decided that citizens also have a right to a government-issued passport.[2] The mobility right does not extend to permanent residents and those who are non-citizens.[3] Non-citizens can be refused entry into the country without the need for justification, and their admittance into Canada can be subject to strict conditions (e.g. visa conditions).[4] They also do not have a right to remain in the country once their pre-determined stay in the country has expired, unless they apply for an extension, or for permanent resident status.[5]

(2) The rights to move and to gain a livelihood

These rights allow Canadian citizens and permanent residents to move freely about and reside in, any province they choose. They also grant the right to earn a livelihood in any province. It should be noted that this however, does not create a constitutional right to work.[6] You can apply for a job in any province, regardless of which province you are coming from, but that does not give you a constitutional right to a job.[7]

Section 6(2)’s Built-in Limitations

The rights to move and to gain a livelihood are subject to specific limitations which are outlined within Section 6 of the Charter. The rights are subject to provincial laws that do not discriminate primarily on the basis of one’s province of residence (either past or present), and are meant to apply generally to everyone in that province. This limit would save laws that require both in-province and out-of-province individuals to re-license or re-certify, in a regulated profession such as law or medicine, before being allowed to practice.[8] This is because these provincial licensing requirements apply to everyone equally. Similarly, requiring a person to obtain a new driver’s license or health care insurance when s/he moves to a different province is considered justifiable.

In addition, both provincial and federal laws that are passed to ensure individuals qualify for social services/assistance (based on reasonable residency periods) are allowed to limit this right.[9] For example, British Columbia revokes social assistance if the recipient is absent from the province for more than 30 consecutive days per year.[10]

Finally, certain laws, programs or activities are allowed to discriminate based on province of residence, so long as their objective is improving the conditions for socially or economically disadvantaged individuals.[11] In this way, an ‘affirmative action’ law or activity that ensures preferential hiring of certain individuals residing in a province could be constitutional, despite the fact that it, on its face, infringes on the mobility rights of others.[12]

Justifiable Infringement of Section 6

Mobility rights, like all other Charter rights, are subject to reasonable limits as prescribed by law. This means that the government may justify an infringement of section 6 rights. Say for example, that you were on Canada’s equivalent of the no-fly list, the Passenger Protect Program.[13] If your inclusion on that list had a valuable or important purpose the Government would likely be able to argue that its infringement of your mobility right – to leave the country – was justified as a reasonable limit under section 1 of the Charter. In a case involving the denial of a passport to a Canadian citizen – and convicted terrorist – the Federal Court of Appeal held that the government’s decision was justifiable, as the denial was a reasonable method of addressing national security concerns.[14]

Not Withstanding

Interestingly, mobility rights are not subject to the “notwithtanding” clause that allows Parliament or a provincial legislature to override certain Charter rights and freedoms.[15] As such, provinces can not ‘opt out’ and enact a law that allows for a specific limitation of mobility rights. So, while a province may wish to pass legislation protecting the livelihood of their own residents by restricting the ability of residents of other provinces to gain employment (for example), unless that legislation falls within the built-in limitations of Section 6, or is a justifiable infringement, it is unconstitutional for them to do so.

[1] Canadian Charter of Rights and Freedoms,Part 1 of the Constitution Act, 1982, s 6, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .

[2] Kamel v Canada (Attorney General), 2008 FC 338, [2009] 1 FCR59, aff'd 2009 FCA 21, [2009]4FCR 449.

[3] Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007) (loose-leaf revision 1) vol 2 at 46-1 [Hogg]; see also Government of Canada, “New Immigrants – Life in Canada: Carrying identification and traveling outside of Canada” (13 November 2013), online: <http://www.cic.gc.ca/english/newcomers/after-life-id.asp>.

[4] Hogg, supra note 3 at 46-1, 46-2.

[5] Canada, “Extend your stay in Canada as a visitor” (24 June 2016), online: <http://www.cic.gc.ca/english/visit/extend-stay.asp>.

[6] Mollie Dunsmuir & Kristen Douglas, “Mobility Rights and the Charter of Rights and Freedoms” (19 August 1998), online: <http://publications.gc.ca/Collection-R/LoPBdP/CIR/904-e.htm#2.%20%20Selftxt>.

[7] See Law Society of Upper Canada v Skapinke,[1984] 1 SCR 357 at 382, DLR (4th) 161.

[8] Hogg, supra note 3 at 46-7. It should however be noted that virtually all provinces in Canada have acted to increase labour mobility: see Agreement on Internal Trade (entered into force 1 July 1995), online: <www.ait-aci.ca/>.

[9] Charter, supra note 1 at s 6(3)(b).

[10] British Columbia, “Residency in BC Eligibility” (20 May 2010), online: <www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eligibility/residency>.

[11] Ibid at s 6(4). This discrimination is allowed to happen when the disadvantaged individuals reside in a province with an employment rate below the national average, see Hogg, supra note 3 at 46-8.

[12] Hogg, supra note 3 at 46-8.

[13] Public Safety Canada, “Recourse for Listed Persons” (20 June 2016), online: <http://www.publicsafety.gc.ca/cnt/ntnl-scrt/cntr-trrrsm/pssngr-prtct/rcnsdrtn-eng.aspx>.

[14] Kamel v Canada (Attorney General), [2009] 4 FCR 449, 2009 FCA 21 (CanLII).

[15] Charter, supra note 1 at s 33; Hogg, supra note 3 at 39-5, 46-2.

Meech Lake Accord

Quebec’s refusal to accept the patriation package in 1981 caused it to feel somewhat alienated from the Canadian ’constitutional family.’ This led to renewed constitutional discussions, beginning around 1985, in which the government of Quebec made a series of proposals that, if accepted by all the provinces and the federal government, would have led to Quebec’s return to the ‘constitutional family.’

Since, in the interim, Quebec was as legally bound as all of the other provinces by the provisions of the Canada Act 1982 and its Schedule B, the Constitution Act, 1982, the Quebec proposals also assumed a great symbolic significance.

The Quebec proposals could be divided into two components. The first dealt with the distinctiveness of Quebec in the Canadian federation, and the second with a potpourri of other matters. These other matters arguably tended to enhance the role of the provinces in their relationship with the federal government. Not surprisingly, then, when Quebec proposed this package, including the latter portion, which enhanced the role of the provinces, all of the provinces initially agreed to the package under a principle of ‘juridical equality’. This package became known as the Meech Lake Constitutional Accord of 1987.

The ‘Meech Lake Accord’ recognized the province of Quebec as constituting a distinct society within Canada. At the same time, it recognized the anglophone minority in Quebec as a fundamental characteristic of Canada, as well as the francophone minority elsewhere in Canada.

The provinces were, for the first time, given a formal role in nominating persons to sit on certain federal institutions (namely, the Senate and the Supreme Court of Canada).

For some time, social programs falling within provincial legislative jurisdiction (e.g. health care) had largely been financed by the federal government since the federal government held greater taxation power, and hence possessed greater spending ability than the provinces (see federal spending power).

Provincial concerns with this related to federal attachments of conditions to this financing. Under the Accord, a province could opt out (see opting out) of one of these programs provided it established its own, and provided its own program had objectives compatible with the national objectives of the program. In such a case, the federal government would continue to finance the new provincial program with reasonable compensation.

Under the Constitution Act, 1867, the provinces and the federal government were given joint or parallel jurisdiction over immigration, leading to a series of agreements on the settlement of new immigrants in Canada. The Accord constitutionalized those agreements.

The Accord also constitutionalized the federal-provincial consultative process by requiring that at least one First Ministers’ meeting be held annually and by requiring that the issues of Senate reform and the fisheries be discussed at those meetings.

Finally, the Accord slightly changed the existing formula for constitutional amendment (see amending formula). Before the Accord, two formulae for amendment existed in Canada. The general formula required the consent of the Senate and the House of Commons and of the legislatures of two-thirds of the provinces, provided those provinces comprised fifty percent of the population of Canada. For some specialized listed matters, the formula required the consent of Parliament and the legislatures of all of the provinces. A third section listing other specialized matters existed as well, but these matters required only the general amending formula. The Accord took this latter list of specialized matters, added a number of other issues, and moved them to the first list of specialized matters. As a result, all listed specialized matters (such as changes to the Senate and the creation of new provinces) came to require the unanimous consent of Parliament and the legislatures of the provinces.

To become law, the Accord had to be ratified by Parliament and the legislatures of all the provinces in accordance with section 41 of the Constitution Act, 1867. Quebec’s legislative assembly was the first to pass the required resolution of approval on 23 June 1987; the Accord had to receive unanimous ratification on or before 23 June 1990. In early June of 1990, all First Ministers finally agreed to ratify the Accord subject to guarantees of further constitutional discussion following the Accord on such issues as an elected Senate, the amending formula and equality and Aboriginal issues.

Nevertheless, on the final ratification date, the Accord unravelled. Although all parties in Manitoba had finally agreed to the Accord, it required public hearings unless there was the unanimous consent of the legislature to dispense with such hearings. However, one member of the Manitoba legislature, Elijah Harper, withheld his consent and ultimately the Accord did not come to a vote in that province. On the same day, wishing to allow Manitoba time, the federal minister responsible for federal-provincial relations suggested extension by three months of the ratification date – to the third anniversary of Saskatchewan’s ratification – necessitating re-ratification in Quebec. This dissatisfied the premier of Newfoundland who then did not bring the Accord to a vote in his legislature on that day – ultimately delivering yet another blow to the ‘Meech Lake Accord’ and ensuring its disintegration.

Aboriginal

Through its mention in section 35 of the Constitution Act, 1982, the term “Aboriginal” has surged to heavy usage both in the legal sphere and in general Canadian English.[1]

Aboriginal is an inclusive term, covering various peoples with ties to the original inhabitants of Canada. Section 35(2) of the Constitution Act, 1982 states that “'Aboriginal Peoples of Canada' includes the Indian, Inuit, and Métis peoples of Canada.” Because the list is open-ended, it is possible that the legal definition of “Aboriginal Peoples of Canada” may be interpreted to cover other peoples not specifically mentioned, as long as such interpretations are in keeping with the characteristics of the listed groups.

Aboriginal is also a flexible term, since it can be used to refer to Aboriginals as individuals, or as groups:

i)     An Aboriginal person: A person whose ethnic ancestry traces back to the original inhabitants of Canada may refer to herself as “an Aboriginal person”, regardless of whether she qualifies particularly as a Métis, an Inuk, a First Nations person, or an Indian.

ii)    An Aboriginal people: A group of people participating in a shared society whose origins derive from a connection with a group of the original inhabitants of Canada may be “an Aboriginal people”. A First Nation or a Métis nation is therefore an Aboriginal people.

iii)   Aboriginals: The word “Aboriginals” does not distinguish between individuals and collectives, and includes both.

Legally, Aboriginal is often associated with Aboriginal rights, as recognised and affirmed in section 35(1). The constitutional use of the word Aboriginal, in addition to its advantageous flexibility as a catch-all term, has led Canadian political and legal institutions to gradually abandon the word "Indian" in favour of the word "Aboriginal".[2]

 

[1]    Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35.

[2]    In 2011, for example, the Federal Government changed the name of the Department of Indian Affairs and Northern Development to the “Department of Aboriginal Affairs and Northern Development”.

Living Tree Doctrine

The “living tree” doctrine refers to a method of constitutional interpretation that allows for Canada’s Constitution to change and evolve over time while still acknowledging its original intentions.[1] The doctrine achieves a balance between two seemingly contradictory goals: predictability and flexibility. To be effective, the Constitution must consist of a predictable set of rules. That way, Canadians know how their activities are governed, and Canada and the provinces can be governed in a consistent manner. On the other hand, flexible interpretation accommodates the realities of changing modern life. If the Constitution could not be interpreted this way, it would be frozen in time and become more obsolete than useful.[2]

Two Canadian cases illustrate the balance between the constitutional predictability and flexibility that embody the living tree principle. Edwards v Canada,[3] a cornerstone in constitutional interpretation, introduced the living tree metaphor and the courts’ need to interpret the Constitution more broadly. Otherwise known as the “Persons Case,” Edwards was a 1929 decision by Canada’s highest court at the time, the Judicial Committee of the Privy Council (JCPC) in Britain. After analyzing the Constitution’s use of the term “persons,” which had always referred to men, the JCPC decided that both men and women were now “persons” and therefore eligible to sit in the Canadian senate.[4] According to Justice Sankey, while constitutional stability and integrity is of the utmost importance, the Constitution “also planted in Canada a living tree capable of growth and expansion within its natural limits."[5] Women may not have been able to vote or hold office in 1867, but times had changed and so had constitutional interpretation. The decision helped women gain a measure of equality to men in the political arena.

More recently, cases like Reference Re Same-Sex Marriage updated the living tree concept. This 2004 case questioned the constitutional validity of same-sex marriage. Building on Justice Sankey’s “living tree” metaphor, Chief Justice McLachlin introduced another metaphor, stating that the “ ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation, that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”[6] By allowing the term “marriage” to adapt or grow with contemporary times, its meaning within legislation became modernized and subsequently included unions of same-sex couples.[7]

Allowing the Constitution to evolve is not a simple task. Doing so takes time and considerable thought, and the courts make changes only after much deliberation. Sections of the Constitution that are questioned or challenged must be examined within the context of contemporary society to ensure that they adapt to change but still maintain the “framers’ intent,” or what the Constitution’s authors were trying to achieve.[8] Therefore, contemporary interpreters must focus on what the originators intended it to accomplish rather than what the text actually states before allowing the Constitution to evolve or remain unchanged.[9]

[1]Peter W Hogg, Constitutional Law of Canada, vol 2, 5th ed (Scarborough: Thomson, 2007) at 36.8(a)

[2]Ibid; Reference Re Same Sex Marriage, 2004 SCC 79 (CanLII) .

[3]Edwards v Canada (Attorney General) [1930] AC 124 at 124, 1929 UKPC 86 .

[4]Ibid.

[5]Ibid.

[6]Same-Sex, supra note 2 at para 22.

[7]Ibid.

[8]William Beal, Cardinal Rules of Constitutional Interpretation (Buffalo, US: William S Hein & Co, Inc, 2000) at 257.

[9]Ibid.

Legal Rights

The legal rights section of the Charter guarantees the rights held by anyone investigated, detained or criminally charged, or who is faced with legal restrictions of any kind.

Sections 8 through 14 of the Charter[1] protect procedural legal rights. These rights explain what state agents such as police officers may do when investigating, or prosecuting, a legal infraction. As “the treatment meted out by agents of the state to even the least deserving individual will often indicate the treatment that all citizens of the state may ultimately expect,”[2] courts will diligently protect procedural rights. These include section 8,[3] which protects against unreasonable search and seizure, section 9,[4] which protects against arbitrary detention, and section 12,[5] which protects against cruel and unusual punishment. Sections 10,[6] 11[7] and 13[8] protect rights upon and after arrest, such as the right to legal counsel and the right to trial within a reasonable time.

Section 7 protects substantive legal rights from restriction.[9] This section ensures that our rights to “life, liberty and security of the person” are only infringed by laws that conform to the “principles of fundamental justice.” There are three established principles of fundamental justice.[10] A law that restricts section 7 rights must not be arbitrary: it must relate to a specific problem. The law must not be overbroad: it must only restrict section 7 rights to the extent necessary. Finally, a law must not be disproportionate: the restriction to the rights must not outweigh the problem the law addresses.

Legal rights ensure the state treats citizens fairly. Section 7 specifically ensures that laws do not unfairly restrict the life, liberty or security of people living in Canada. Sections 8 through 14 protect people in their interactions with the justice system and law enforcement.

[1] Canadian Charter of Rights and Freedoms,Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .

[2] R v Stillman, [1997] 1 SCR 607 at para 47.

[3] Charter, supra note 1, s 8.

[4] Ibid, s 9.

[5] Ibid, s 12.

[6] Ibid, s 10.

[7] Ibid, s 11.

[8] Ibid, s 13.

[9] Ibid, s 7.

[10] Carter v Canda (Attorney General), 2015 SCC 5 at para 72.

Judicial Review

In Canada, as well as in many other constitutional democracies, there are two types of ‘judicial review’ – judicial review on administrative acts, and judicial review on the constitutionality of legislation. Both types of ‘judicial review’ are based on the idea of the rule of law. This idea means that not only citizens, but also governments’ officials, are subject to the law. If these officials do something that the law does not allow them to do, the courts are allowed to nullify their actions.

The first type of ‘judicial review’ involves the actions of the executive branch of government. In the modern state it is impossible for the legislature to address every administrative decision (such as the decision to issue or to refuse to issue a business license), therefore, many statutes endow various governmental authorities with administrative powers. If a person believes that a certain governmental authority has exercised its power in an arbitrary, discriminatory, or otherwise unreasonable way, she can file a suit in a court of law and ask for ‘judicial review’, that is, to ask that the court review the administrative decision. If the court finds in favour of the plaintiff, it can annul the administrative decision.

The other type of ‘judicial review’ does not involve the actions of the executive branch, but rather the actions of the legislative branch. S. 52 of the Constitution Act, 1982 provides that “the Constitution of Canada is the supreme law of Canada”. S. 24 of the same Act guarantees the right for individuals to challenge legislation which does not conform with the Constitution thereby giving Canadian courts the power to engage in ‘judicial review’ on the constitutionality of legislation. The purpose of this type of ‘judicial review’, also referred to as “constitutional review”, is to ensure that legislation conforms to the Constitution of Canada. The Constitution regulates two different areas – the division of powers between the federal and provincial government, and the rights guaranteed to every Canadian against both levels of government. Consequently, there are two ways in which an act of a legislature or of Parliament might be unconstitutional. First, when the act is enacted by a provincial government while the relevant subject matter of the act is under Federal jurisdiction (or vice versa) (see division of powers). Second, when this act violates the Charter of Rights and Freedoms.

When a court strikes down legislation on division of powers grounds, it does not mean that the content of law itself violates the constitution. Rather, it means that the institution which enacted the law (a provincial legislature or Parliament) violated the Constitution. Consequently, if there is a strong public interest in enacting this legislation, the appropriate institution can enact this act. Conversely, when a court strikes down legislation on Charter grounds, it means that the content of the law violates the Constitution, and no legislature could properly enact this law. For this reason, ‘judicial review’ on Charter issues is often criticized as illegitimate since it gives to the judiciary the power to block important legislative initiatives.

The obvious response to this criticism is that when the courts nullify legislation that violates the Constitution, it enforces this document, not the judicial will. An objection to this response is that the language of theCharter is very open-textured, and refers to abstract concepts such as “freedom of expression”. People could reasonably disagree about the meaning of such concepts, and therefore courts would not really enforce “the Charter”. Rather, they impose their own subjective reading of the ambiguous language of theCharter. Since judges are not democratically elected, and cannot be replaced in office by the public will, their own view of the Charter of Rights and Freedoms has no legitimacy.

The question pertaining to the legitimacy of constitutional review is poignant for every constitutional democracy and is not unique to Canada. It has been the subject of a vast body of literature in the past century. The two most common responses to this question are as follows. First, precisely because the Constitution’s language is ambiguous, it needs interpretation by an authoritative institution. For the reason that part of the purpose of the Charter, indeed of the entire Constitution, is to protect minority groups and individuals, it should not be enforced and interpreted by majoritarian institutions such as the legislature. Judges are not elected and are not accountable, and therefore they are best capable of interpreting the constitution in a way that will protect minorities.

Second, while courts have the power to strike down legislation based on their reading of the constitution, in reality judicial decisions are not final, and legislatures have their ways to respond to a judicial decision with which they do not agree. The constitutional mechanisms for such legislative action are judicial appointments, constitutional amendments, and in Canada, the use of thenotwithstanding clause.

Judicial Independence

Introduction

The judiciary is one of three branches of government in Canada: executive, legislative and judicial. Each of these branches has responsibilities rooted in Canada’s Constitution and history. Judicial independence is foundational to the constitutional role of the judiciary. Courts must be “completely independent of any other entity,” including other branches of government, social groups, and individuals.[1] A court must not only be independent, the public must also see it as independent. [2]

The Importance of Judicial Independence

Judicial independence ensures that the judiciary can properly exercise its judicial responsibilities. That includes adjudicating individual disputes. Judges should make decisions “based solely on the requirements of law and justice.”[3]

The judiciary is also the protector of the Constitution and the values it embodies.[4] These values include the rule of law, democracy, equality, and fundamental justice.[5] Two sources make the judiciary the protector of the Constitution. First, Canada is a federal country, meaning it has two levels of government: central and provincial. Sections 91 and 92 of the Constitution Act, 1867 give different powers to these levels of government. A federal system requires an independent arbiter (the judiciary) to resolve disputes between the two levels of government.[6] Second, the judiciary is responsible for protecting our basic human rights contained in the Canadian Charter of Rights and Freedoms, which is part of the Canadian Constitution. An independent judiciary protects us against government action that violates these rights.[7]

The importance of judicial independence for protecting the Constitution is also tied to the principle of separation of powers. Separation of powers means that the branches of government should be independent of one another.[8] Each of the branches exercises separate and distinct functions that the other branches cannot interfere with. However, this does not mean that each of the branches is completely separate from the other.

The branches of government have a particular relationship with one another based on their functions.[9] The Supreme Court of Canada has said that the relationship between the judiciary and the other branches is a depoliticized one. This means that the legislature and executive cannot put political pressure on the judiciary, and the judiciary should not speak publicly on issues that could come before the courts.[10]

Finally, judicial independence is essential for upholding the rule of law, which means that governments can only take actions that are permitted by law and the Constitution. [11] The judiciary makes sure that government actions and laws are consistent with the Constitution. An independent judiciary maintains public confidence that justice will be done by an impartial authority.[12]

Judicial Independence: Two Dimensions and Three Characteristics

Judicial independence has two dimensions: individual and institutional. Individual independence means that individual judges decide cases without interference.[13] Institutional independence means that courts are independent from other branches of government.[14]

Three core characteristics – security of tenure, financial security, and administrative independence – are necessary for maintaining judicial independence.[15]

Security of tenure means that judges cannot be removed on a whim. Judges are appointed until retirement, unless they cannot perform their duties.[16]

Financial security means that judges’ salaries are set by law, and the executive cannot change them.[17] It also means that courts must be “free from political interference through economic manipulation by the other branches of government.”[18] For example, if a provincial government wants to change or freeze the salaries of provincial court judges, it must set up an effective and independent commission to determine whether that can be done.[19] Otherwise, if a provincial government were to unilaterally change the salaries of provincial court judges, then it would be interfering with the financial security of provincial court judges. If a provincial government interfered with the financial security of judges, it would be interfering with judicial independence.

Administrative independence means that courts have control over their own judicial administration. This includes assigning judges to cases, court sittings, and direction over administrative staff.[20]

Sources of Judicial Independence

Judicial independence has two sources explicitly written into the Constitution. Sections 96 – 100 of the Constitution Act, 1867 guarantee the highest degree of independence for superior courts. This includes security of tenure, salary and pension. Section 11(d) of the Charter guarantees the right to an “independent and impartial body” for every individual accused of an offence. These sources do not explicitly apply to all courts. For example, a provincial court dealing with a family law matter does not fall under any of these sections because it is not a superior court (in other words, sections 96-100 of the Constitution Act do not apply) and is not dealing with a criminal law matter (therefore, section 11(d) of the Charter does not apply).

That said, judicial independence does apply to all courts because it is an unwritten principle of our Constitution.[21] The preamble to the Constitution Act, 1867 says that Canada is to have a Constitution “similar in principle to that of the United Kingdom.” Since judicial independence is an important principle in the United Kingdom’s Constitution, it was transferred into Canada’s Constitution as an unwritten principle.[22] Over the course of the Constitution’s history, the principle of judicial independence has evolved to apply to all courts.[23] Without this principle, some courts might not be protected from outside interference.

The content of judicial independence is also a product of the political realm.[24] This means that the “day-to-day processes of negotiation and interaction” between members of the political and legal system determine how judicial independence is implemented. For example, the Constitution Act, 1867 contains provisions for appointing judges and setting their salaries. These provisions relate to judicial independence, but the way that they are implemented is partially a product of the political process.[25]

The requirement for provinces to set up an independent commission to change the salaries of provincial court judges is an example of this political process. Provincial governments can make a political decision to adjust the salaries of provincial judges depending on economic circumstances. But the Supreme Court of Canada has mandated that an independent commission must be met for this happen. Here we have an interplay between the branches of government in determining how one aspect of judicial independence (financial security) should be dealt with.

Judicial Appointments and Independence

The politics of judicial independence can be seen clearly in the process by which judges are appointed. The Constitution gives the Governor General authority to appoint judges to trial and appeal courts. However, the Constitution does not provide for a process of appointment. In practice, the minister of justice selects a candidate from a list compiled after consultation with other judges and members of the legal profession. The minister then recommends the candidate to the federal cabinet, which includes the prime minister.[26] Qualifications for appointment of these judges can be found in section 3 of the Judges Act. If the appointment process for appointing judges is not open or transparent, those appointments might seem like political choices.

Does judicial independence require an open process for judicial appointments to avoid the perception that those appointments are based on political preference or interference? Perhaps, an independent commission should be required to appoint judges in the same way that an independent commission is needed to change judges’ salaries.[27] This issue will likely receive more attention in the coming years.

Conclusion

Judicial independence is essential to the rule of law and to the effective functioning of our democracy. It must be safeguarded to ensure that the public remains confident in the judiciary. If the public loses confidence in the judiciary’s independence, it might also lose faith in our justice system.

[1] Mackin v New Brunswick (Minister of Justice), 2002 SCC 13 at para 35, [2002] 1 SCR 405.

[2] British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49 at para 47, [2005] 2 SCR 473.

[3] Supra note 1 at para 37.

[4] Beauregard v Canada, [1986] 2 SCR 56 at para 24, [1986] SCJ 50.

[5] Ibid at para 24.

[6] Ibid at para 27.

[7] Ibid at para 28.

[8]Guy Regimbald & Dwight Newman, The Law of the Canadian Constitution, 1st ed (Markham: LexisNexis Canada Inc, 2013), at 101

[9] Ref re Remuneration of Judges of the Prov Court of PEI; Ref re Independence and Impartiality of Judges of the Prov Court of PEI, [1997] 3 SCR 3 at para 139

[10] Ibid at para 140

[11] Provincial Court Judges Assn (Manitoba) v Manitoba, [1997] 3 SCR 3 at para 10, [1997] SCJ 75.

[12] Ibid at para 10.

[13] Supra note 4 at para 8

[14] R v Valente (No 2), [1985] 2 SCR 673 at para 20, 24 DLR (4th) 161.

[15] Supra note 2 at para 45.

[16] Supra note 11 at para 30.

[17] Ibid at para 40.

[18] Supra note 8 at para 131; see also Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3.

[19] Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3 at para 166.

[20] Supra note 11 at para 49.

[21] Supra note 8 at para 83.

[22]Supra note 4 at para 29.

[23] Supra note 8 at para 106.

[24] Gee, Graham et al. The Politics of Judicial Independence in the UK’s Changing Constitution (Cambridge: Cambridge University Press, 2015)

[25] Ibid at 9

[26] See http://www.cscja-acjcs.ca/judges_selected-en.asp?l=5

[27] See Joseph Arvay, Sean Hern & Alison Latimer, “Why we need a constitutional challenge on judicial appointments” The Globe and Mail (06 August 2015) online: The Globe and Mail < http://www.theglobeandmail.com/globe-debate/why-we-need-a-constitutional-challenge-on-judicial-appointments/article25867097/>.

Watertight Compartments

This article was written by a political sciences student for the general public.

‘Watertight Compartments’

‘Watertight compartments’ is an expression used to describe a particular vision of federalism. Also known as ‘classic’ federalism, this model is a strict understanding of the division of powers. Governments are independent, separate, and expected to work exclusively on their constitutionally assigned profiles. A rigid interpretation of ‘watertight compartments,’ then, sees the federal and provincial governments “operate in splendid isolation from one another.”

Sections 91 and 92 and the Constitutional Reality

Sections 91 and 92 of the Constitution outline federal and provincial responsibilities. For instance, Ottawa has jurisdiction over areas such as criminal law, defense, and the postal service. These are files that are national in scope and affect all Canadians. Provinces are responsible for portfolios like education, health care, and municipal institutions. Needs in these areas differ from province to province and thus require local attention. Dividing these compartments is a central theme of federalism and is intended to minimize having ‘too many cooks in the kitchen.’

While the Constitution clearly defines governmental powers, the strict division of powers does not always work neatly in practice. One such instance can be seen in the area of criminal law. Although the Criminal Code is a federal document, the establishment, maintenance, and management of jails fall under provincial jurisdiction. Thus, a certain level of intergovernmental coordination is necessary to fulfill the administration of justice. This is the case in many other areas such as health care. According to Richard Simeon and Amy Nugent, “the classical ‘watertight compartments’ model of federalism no longer exists, if indeed it ever did in reality.”

Jennifer Smith, Federalism (Vancouver: UBC Press, 2004) at 166.

Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 .

 Criminal Code, RS C 1985, c C-46; Ibid at s 92(6).

Richard Simeon & Amy Nugent, “Parliamentary Canada and Intergovernmental Canada: Exploring the Tensions” (in Herman Bakvis & Grace Skogstad, eds, Canadian Federalism, Don Mills: Oxford University Press, 2012) at 64.

Judicial Committee of the Privy Council

From 1867 until 1949 the ‘Judicial Committee of the Privy Counsel’ (JCPC), a British institution, served as Canada's highest court of appeal. Ottawa abolished appeals to the JCPC in 1949. Until then, the Supreme Court of Canada was subordinate, not supreme. Its decisions could be appealed to the JCPC. Furthermore, provincial court of appeal decisions could be appealed directly to the JCPC, bypassing Canada's Supreme Court altogether.

The JCPC played a vital, controversial role in the evolution of Canadian federalism. The British North America Act, 1867 (renamed Constitution Act, 1867 in 1982) created an ‘imperial federation.’ The federal Parliament retained the same imperial powers over the provinces (see reservation and disallowance) that London enjoyed over the colonies. The division of powers also gave the federal government the most significant government powers of the time. The intent was clear: Canada was to be a very centralized country. Ottawa should lead in building a national economy and society; the powers of provinces should be limited so they could be nothing more than "glorified municipal institutions."

The JCPC's interpretation of the division of powers disappointed the champions of a centralized federation and delighted those who wanted the provinces to be Ottawa's equals. In the first seventy years after Confederation the JCPC authored an expansive interpretation of section 92 (especially the provincial jurisdiction over property and civil rights). This expansive interpretation of provincial power came at the expense of several of the federal powers outlined in section 91 (especially the trade and commerce power and the power to legislate for the Peace, Order, and Good Government of Canada).

Debates over the appropriateness of the JCPC's role in re-balancing federal and provincial powers in Canada foreshadowed today's debates about the role the courts are playing as interpreters of the Canadian Charter of Rights and Freedoms.

Sources:

  • A.C. Cairns, “The Judicial Committee and Its Critics” (1971) 4 Canadian Journal of Political Science 301.
  • J.R. Mallory, Social Credit and the Federal Power in Canada (Toronto: University of Toronto Press, 1954; reprinted 1976).
  • P.H. Russell, R. Knopf & F.L. Morton, Leading Constitutional Decisions, 5th ed. (Ottawa: Carleton University Press, 1989).

Victoria Charter

The ‘Victoria Charter’ refers to a package of changes to the Canadian Constitution that was debated by Prime Minister Trudeau and the provincial Premiers in Victoria in June 1971. The Victoria Charter's key elements touched the following subjects: fundamental freedoms and political rights, language rights, the composition and appointment of the Supreme Court of Canada, income security, and a constitutional amending formula. The ‘Victoria Charter’ also would have abolished the federal powers to reserve and disallow provincial legislation (see reservation and disallowance), committed governments to the reduction of social and economic disparities between the provinces, and formalized annual conferences of the Prime Minister and the Premiers.

Quebec Premier Robert Bourassa, facing strong opposition from both separatist and federalist quarters in Quebec, announced that Quebec could not accept the terms of the ‘Victoria Charter’. Specifically, he claimed that the terms of the income security measures (covering pensions and family/youth/occupational training allowances) were too uncertain for Quebec's tastes. The federal government and the other nine provinces declined to pursue these changes in light of Quebec's rejection of the package.

Comparing the ‘Victoria Charter’ to the Constitution Act, 1982 is particularly interesting. This comparison reveals several important differences in the process and substance of efforts to change the Constitution. The most significant procedural difference is that Quebec's rejection of a constitutional package, sufficient to stop constitutional change in 1971, did not prevent the patriation of the Constitution in 1982. Substantively, the amending formula found in the ‘Victoria Charter’ was very different from the one adopted in 1982. The ‘Victoria Charter’ prescribed that amendments needed the support of Ottawa and a majority of the provinces. But, the provincial majority had to include Ontario, Quebec, at least two of the Atlantic Provinces, and at least two of the Western provinces that had at least fifty percent of the region's population. By receiving veto power, Ontario and Quebec were treated differently than the other provinces. The current amending formula bows in the direction of provincial equality since no province is given the power to veto constitutional change. Another difference is that the 1982 Constitution requires that amendments to a number of subjects require the unanimous consent of the federal and provincial governments. Also, the rights guarantees found in the Canadian Charter of Rights and Freedoms are considerably more extensive and expansive than those contained in the ‘Victoria Charter’.

Sources: