Canadian Constitutional Law/Printable version

Canadian Constitutional Law

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Sources of Constitutional law


Canada is a kingdom; Queen Elizabeth II is the Queen of Canada; all executive, legislative, and judicial power is vested in the Queen. These facts are established in the Constitution Act, 1867. However, in 1947 the King transferred all of his legal power to the Governor General (GG) of Canada, except for the power of appointing a GG. It might be said, then, that the GG occupies the top position in the government legally but that the Queen does so symbolically. Similarly, it might be said that all executive, legislative and judicial power is vested in the GG. The constitution, however, provides that these powers can be exercised only on the initiative of the ministers, the Parliament, or the judiciary, respectively.

The government is organized in three branches: executive; legislative; and judicial.

The executive branch consists of the GG, the Prime Minister, and the other cabinet ministers. This branch carries out the administration of government and prepares the governmental plans, budgets and legislative proposals for consideration by the legislative branch. In the administration of government, the executive acts under the authorization of either existing legislation or of the inherent legal power (the "prerogative") of the GG. To take an executive action, the Prime Minister or a minister advises the GG to take the action and (for routine executive business) the GG must comply. It might be said that the GG occupies the top position in the executive legally but that the Prime Minister does functionally. There is some evidence that one role of the GG is to refuse to act on advice that would give an advantage to one political party over another. Similarly, it might be said that the GG should refuse a proposal from the Prime Minister that would give himself/herself increased power or that would otherwise amend the constitution. The GG and the rest of the Executive Branch are subject to Canadian constitutional law.

The legislative branch consists of the Queen, the House of Commons, and the Senate. One purpose of the Commons is to install or replace the Executive, sometimes through a vote of non-confidence. Another purpose is to consider and accept, modify, or reject the plans, budget, and proposed legislation originated by the Executive. Parliamentary debates before confederation indicated that the first purpose of the Senate was to ensure that proposed legislation did not impose an unfair majority view on a minority geographical region; it might be said that the veto power of the Senate existed for this purpose. A second purpose was said to be the modification of any bill expressing an unwise but popular view of the Commons. A third purpose was to review for errors or omissions any bill passed by the Commons. (The first and second purposes of the Senate seem to have been forgotten now.) Representation in the Commons is by population; representation in the Senate, by geographical region, to offset the large legislative power of large provinces. The GG enacts legislation on the advice and consent of the Commons and the Senate; the GG may refuse to do this (presumably to protect the constitution, as for refusal to carry out an executive act on the advice of the Prime Minister) but has not refused for many decades.

Court judgments are given in the name of the Queen. Superior court judges are appointed for life, to promote independence. Federally, an independent public prosecutor has been set up to remove political influence on decisions of whether or not to prosecute in a particular case.

Since Canada began life as a British colony, its form of democracy is based on the model of the United Kingdom, a model that is known in Canada as Responsible Government, . Both countries share a constitutional monarchy and responsible government, in which the powers of the Executive are given to the party (or coalition) that has the confidence of the elected house of the legislature becomes installed in the executive branch and the GG acts on the advice of the Prime Minister and ministers.Many other aspects of Canada's public law derive from the United Kingdom.

However, Canada departed from Britain the British model from the outset by being a federal union in which legislative power is divided between a central parliament and provincial legislatures. The division of powers was set out in the UK British North America Act, now issued as the (Canadian) Constitution Act, 1867. Since each level of government's power was limited by the other, the courts reviewed legislation to determine whether it was constitutional, a role they have never played in the United Kingdom.

Provincial governments are organized in the same way as the federal under their Lieutenant Governor. They are as competent and independent in their field of jurisdiction as the federal government is in its field.

In 1982, Canada's constitution was fundamentally reformed by adding a judicially-enforced Canadian Charter of Rights and Freedoms (the "Charter"), a guarantee of the rights of Canada's indigenous peoples, and a constitutional amending formulas. The Charter has led to important changes to Canada's law and society, as well as to an ongoing debate about the relative role of judges and politicians in determining how Canadians should be governed. The amending formulas must be followed if the "entrenched" part of constitutional law is to be amended; other parts of the constitution can be amended without reference to the amending formulas.

What is the Constitution of Canada?Edit

Canada's constitution defines itself, or at least it tries to. Section 52 (2) of the Constitution Act, 1982 says:

 The Constitution of Canada includes
 (a) the Canada Act, 1982, including this Act;
 (b) the Acts and orders referred to in the schedule; and
 (c) any amendment to any Act or order referred to in paragraph (a) or (b).

The Canada Act is a reference to the statute of the UK Parliament that ended the British role in amending Canada's constitution. The Constitution Act, 1982 was appended to the Canada Act, and for practical purposes they are the same. Part I of the Constitution Act, 1982 is the Canadian Charter of Rights and Freedoms. Part II sets out the Rights of the Aboriginal Peoples of Canada. Part III is entitled Equalization and Regional Disparities and provides for a non-justiciable commitment to regional equalization. Parts IV and IV.1 provide for constitutional conferences. More importantly, Part V provides a Procedure for Amending the Constitution of Canada. Part VI amended the Constitution Act, 1867, Canada's original constitution. Part VII is General.

The Schedule referred to in paragraph (b) lists 30 historical documents that fill out Canada's written constitution. By far the most important is the first, the Constitution Act, 1867, which continues to be the primary source for the division of sovereignty between the federal and provincial governments. There have been some minor amendments since 1982, but the two major attempts at constitutional change, the Meech Lake Accord and the Charlottetown Accord, resulted in failure.

For most purposes, therefore, Canada's written constitution consists of the two documents, the Constitution Act, 1867 and the Constitution Act, 1982. However, as section 52 (2) recognizes by the use of the word "includes," Canada's constitution is not all written. Both the Constitution Act, 1867 and the Constitution Act, 1982 are written against a background of principles inherited from the United Kingdom and not set out explicitly in the text. Some of these unwritten elements are enforceable in court, and others are constitutional conventions, derived from tradition and enforced by the political system.

An example of an unwritten constitutional concept is the office of the prime minister. While the prime minister of is the most powerful official in the Canadian government, the Canadian written constitution hardly mentions the existence of a prime minister. No law says how the prime minister is chosen or what powers he or she exercise. These matters are governed by constitutional convention.

The Supreme Court of Canada summed up the "unwritten constitution" this way:

The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. (Re: Secession of Quebec [1998] 2 SCR 217 headnote)


Canadian federalism means that the sovereignty of Canada is divided between two levels, or "orders" of government: federal and provincial. Each province has its own government, and the constitution gives the federal government certain powers and each provincial government certain powers. The division of powers is listed in Sections 91 and 92 of the Constitution Act, 1867. Section 91 lists the powers of the federal government, while section 92 lists the powers of the provincial governments.

The most important "unwritten" constitutional principle relating to federalism is that Canada has full sovereignty, that is, Canada can exercise all of the powers of an independent country. All of Canada's sovereignty can theoretically be exercised by either the federal or provincial governments; there is nothing that one or the other government cannot do. Another unwritten constitutional principle is that it is up to Canada's courts to decide which government has the power to do what, when the rules are unclear.


Reading the Constitution Act, 1867, the most important Constitutional document until 1982, the impression one would get is that Canada is not a democracy, but a colony ruled directly by a Governor appointed by the Queen of England. An elected legislature exists, but all of the laws of the legislature must be approved by the Governor and most executive decisions are made by the Governor and his or her Council.

This is because one of the most important constitutional rules of Canada is unwritten. It is called Responsible Government. The important aspects of responsible government are:

  • The Governor must appoint his or her Council (aka. "Council of Ministers" or "Cabinet") from the political party with the most support in the legislature
  • The Governor must choose the leader of the political party with the most support in the legislature as Prime Minister
  • The Governor must act "on the advice of the Prime Minister" (i.e., the Governor must do whatever the Prime Minister says) or "on the advice of Council" (i.e., the Governor must do as instructed by Cabinet).

Therefore, whichever party wins the election gets the most seats in the legislature. Their party leader becomes Prime Minister. The Prime Minister tells the Governor who to appoint to the Cabinet, and then the Cabinet tells the Governor how to run the country. In this way, the Governor's position becomes completely ceremonial; sovereignty, which is technically exercised by the Queen through her Governor, is in fact exercised through elected officials.

Responsible government applies equally to provincial governments. Each province has a ceremonial Lieutenant-Governor, appointed by the Queen, who acts "on the advice" of the Premier (the provincial equivalent of the Prime Minister) and the provincial Cabinet.

Constitutionalism and the rule of lawEdit

Constitutionalism means that the Constitution is supreme. Statutes passed by legislatures may not violate the constitution; any part of a statute that violates the constitution is null. The government is not free to disobey the constitutional rules when it suits them, be they written or unwritten.

The rule of law is a fundamental principle, not only of Canadian constitutional law, but of Canadian life. The stereotype of Canadians as straight-laced people who want everything done "by the book" suggests how seriously the country takes the rule of law. The Rule of Law principle is that the government may not act arbitrarily, but must act only according to the authority given them by the law. The law must, in turn, be valid according to the following criteria:

  1. It must be validly approved (i.e., passed according to the rules of the legislature and given "Royal Assent" by the Governor)
  2. It must be consistent with the constitution
  3. It must be possible to obey (this usually means that it cannot conflict with another law, it must be made public, it cannot be retroactive, etc., although judges sometimes make exceptions to these rules)

Respect for MinoritiesEdit

This constitutional principle has existed since the beginning of the Canadian legal system, although this has not always led to minorities being respected in practice. Nowadays, it is a principle that guides courts in interpreting things such as Aboriginal treaties and the place of French speakers in Canada.

The Royal PrerogativeEdit

The royal prerogative are the powers given to the crown by the common law. These powers are unique to the crown and have no equivalent power to any one else. In modern times, the royal prerogative has fallen into disuse. The courts have held that there is no longer the prerogative power to legislate or administer justice, and there remains little of this power left. The prerogative exists primarily as a convention and is generally accepted as no longer being enforced by the courts.

The Constitution Act, 1867 was not meant to be a complete constitution for an independent country. In 1867, the territory of what is now Canada was broken up into several provinces of the British Empire. The Constitution Act, 1867 was simply a statute passed by the British Parliament to federate several of its provinces. The relations between the Empire and its Canadian colonies would remain the same: the Empire would still run Canada's foreign affairs, sign and ratify treaties on its behalf, and declare war in its name.

When Canada became an independent country, the powers that the British Empire exercised on Canada's behalf fell to the federal government. However, they were not powers that the Canadian Parliament (legislature) inhereited. Rather, they were powers that the Governor-General inherited. As stated above, the powers of the Governor-General are in fact exercised by the Prime Minister. Therefore, decisions on how to run Canada's foreign affairs, to sign and ratify treaties, and declare war are not decisions that the Parliament of Canada make. Rather, they are made directly by the Prime Minister and Cabinet.

Constitution Act, 1867Edit

The Constitution Act, 1867 was the product of negotiations between the top officials of four British colonies in North America: Canada, Nova Scotia, New Brunswick, and Prince Edward Island. They were discussing ways to deal with several common problems: the huge expenses of building rail and canal projects, worsening relations with the United States, and the unworkable political systems that made the colonies hard to govern. In the end, the provinces of Canada, Nova Scotia, and New Brunswick agreed on a plan to create a federation of four provinces (by dividing the former province of Canada into the provinces of Ontario and Quebec). They proposed legislation to the Imperial Parliament in London, which passed it. On July 1, 1867, the British North America Act came into effect, creating a new British colony, "the Dominion of Canada" (s.3).

The highlights of the British North America Act (a.k.a. "the BNA Act") were:

  1. A federal system: powers would be shared between a new federal government and a government in each province (s.91 and 92);
  2. The federal government would have vast powers in the Canada's most crucial financial and economic areas (currency, all forms of taxation, the debt, banks, interest, the building of interprovincial railways and canals) as well as other areas of "national" concern, such as aboriginals and their lands, and criminal law (s. 91)
  3. The provincial governments would generally have powers over local matters and areas that affected the common people: property rights, licenses, hospitals, cities, courts, government land; (s. 92)
  4. The capital of the new country would be Ottawa, on the Quebec-Ontario border; (s.16)
  5. The federal government would have a House of Commons: an elected legislature with representation from the provinces roughly equal to the size of their population; (s.37-40)
  6. The federal government would also have a Senate, with 24 representatives each from Ontario and Quebec and 12 representatives each from New Brunswick and Nova Scotia, the members of which would be chosen by the Governor (in fact, by the Prime Minister of Canada); (s. 21-36)
  7. The provincial governments would each have one elected legislative assembly; Quebec would also have an appointed Legislative Council; (s.69, 71, 88)
  8. The federal government could set up a general court of appeal for Canada and other courts for the "better administration of the laws of Canada", and appoint the judges; (s. 101)
  9. While the provinces were in charge of courts, the Governor (i.e., Prime Minister of Canada) had the power to appoint the judges to the most important provincial courts. (s.96)

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Amending the Constitution

Before 1982, the only way to amend the written Constitution of Canada was to ask the Parliament of the United Kingdom in London to pass legislation. Even upon the passage of the [Statute of Westminster, 1931, when the United Kingdom Parliament stated that its laws no longer applied to Canada, the U.K. Parliament retained the right to amend the Constitution of Canada through section 4 of the Statute. The Constitution Act, 1982, was therefore made law by a statute of the United Kingdom (called the Canada Act).

The Courts

Very generally speaking, Canada's court system is a four-level hierarchy as shown below from highest to lowest in terms of legal authority. Each court is bound by the rulings of the courts above them; however, they are not bound by their own past rulings or the rulings of other courts at the same level in the hierarchy.

Supreme Court of CanadaEdit

Although created by an Act of Canada's Parliament in 1875, its decisions could be reviewed by the Judicial Committee of the Privy Council until 1949 when the Supreme Court of Canada truly became the final and highest court in the country. The court currently consists of nine justices, which include the Chief Justice of Canada, and its duties include hearing appeals of decisions from the appellate courts (to be discussed next) and, on occasion, delivering references (i.e. the court's opinion) on constitutional questions raised by government. By tradition, three of the nine justices are appointed from Quebec. This has come about because of two reasons, the Court will sometimes have cases heard by three of the nine justices and Quebec uses the civil code rather than common law, which requires the Court to have justices versed in the civil code.

Appellate Courts of the Provinces and TerritoriesEdit

These courts of appeal (as listed below by province and territory in alphabetical order) exist at the provincial and territorial levels. Their function is to review decisions rendered by the superior-level courts and to do references (i.e. deliver a judicial opinion) when requested by a provincial or territorial government. These appellate courts do not normally conduct trials and hear witnesses.

These courts are Canada's equivalent of the Court of Appeal in England and the various United States Courts of Appeals. Each of the above-listed appellate courts is the highest court from its respective province or territory. A province's chief justice (i.e. highest ranking judge) sits in the appellate court of that province.

Superior-level Courts of the Provinces and TerritoriesEdit

These courts (as listed below by province and territory in alphabetical order) exist at the provincial and territorial levels. The superior courts are the courts of first instance for divorce petitions, civil lawsuits involving claims greater than small claims, and criminal prosecutions for "indictable offences" (i.e. "felonies" in American legal terminology). They also perform a reviewing function for judgments from the local "inferior" courts and administrative decisions by provincial or territorial government entities such as labour boards, human rights tribunals and licensing authorities.

Furthermore, some of these superior courts (like the one in Ontario) have specialized branches that deal only with certain matters such as family law or small claims. To complicate things further, the Ontario Superior Court of Justice has a branch called the Divisional Court that hears only appeals and judicial reviews of administrative tribunals and whose decisions have greater binding authority than those from the "regular" branch of the Ontario Superior Court of Justice. Although a court, like the Supreme Court of British Columbia, may have the word "supreme" in its name, it is not necessarily the highest court from its respective province or territory.

Provincial and Territorial ("inferior-level") CourtsEdit

These courts operate locally and exist only at the provincial and territorial levels. They do trials, often concerning "summary conviction offences" (i.e. "misdemeanors" in U.S. legal vocabulary), but their judgments must be appealed to the "superior" courts instead of directly to the higher appellate courts. These "inferior" courts do not have "inherent jurisdiction" (to be explained later) and are descended from the old localized courts presided over by lay magistrates and Justices of the Peace who did not necessarily have formal legal training. Many of such "inferior" courts have specialized functions, such as hearing only criminal law matters, juvenile delinquency matters, family law matters, small claims matters, or "quasi-criminal" offences such as not paying fines or not complying with building safety standards. It is improper to call these courts "inferior" and this derogatory term is used here only to help readers understand and remember these courts' subordinate relationship to the "superior" courts. Instead, the phrase "provincial court" or "territorial court" is often used to mean a low level court whose decisions can be reviewed by a "superior" court. Decades ago they were commonly referred to as "district courts" and "county courts".

Federal CourtsEdit

The Federal Court and the more specialized Tax Court of Canada exists primarily to review administrative decisions by federal government bodies such as the immigration board and hear lawsuits under the federal government's jurisdiction such as intellectual property and maritime law.

The Federal Court of Appeal hears appeals from decisions rendered by the Federal Court, the Tax Court of Canada and a certain group of federal administrative tribunals like the National Energy Board and the federal labour board. The chief justice of the Federal Court sits in the Federal Court of Appeal.

Before 2003, the Federal Court was known as the Federal Court of Canada - Trial Division while the Federal Court of Appeal was known as the Federal Court of Canada - Appeal Division. In turn, the Federal Court of Canada is descended from the old Exchequer Court of Canada created back in 1875.

Although the federal type courts can be said to have the same prestige as the superior courts from the provinces and territories, the federal ones lack the "inherent jurisidiction" (to be explained later) possessed by superior courts such as the Ontario Superior Court of Justice.

Administrative TribunalsEdit

Known in Canada as simply "tribunals", these are non-judicial adjudicative bodies, which means that they adjudicate (hear evidence and render decisions) like the courts do BUT are not presided over by judges. Instead, the adjudicators are experts of the very specific legal field handled by the tribunal (e.g. labour law, human rights law, immigration law, enegry law, liquor licensing law, etc.) who hear arguments and evidence provided by lawyers before making a written decision on record. Its decisions can be reviewed by a court through an appeal or a process called "judicial review". The reviewing court may be required to show some deference to the tribunal if the tribunal possesses some highly specialized legal knowledge that the court does not have.

Appearing before an administrative tribunal may feel like appearing in a court, but the appearing lawyer will appreciate the fact that the tribunal's procedure is relatively less formal than that of the court, and more importantly, the rules of evidence are not as strictly observed. In other words, evidence that would be inadmissible in a court hearing would be allowed in a tribunal hearing. The presiding adjudicator is normally called "Mister/Madam Chair", and lawyers routinely appear in tribunals advocating a matter for their clients.

What tribunals all have in common is that they are created by statute, their adjudicators are appointed by government, and they focus on very particular and specialized areas of law. Because some subject matters (e.g. immigration) fall within federal jurisdiction while others (e.g. liquor licensing) in provincial jurisdiction, some tribunals are created by federal law while others are created by provincial law. Yet, there are both federal and provincial tribunals for some subject matters such as unionized labour and human rights.

Most importantly, from the lawyer's perspective, is the fact that the principle of stare decisis does not apply to tribunals. In other words, a tribunal adjudicative could legally make a decision that differs from a past decision, on the same subject and issues, delivered by the highest court in the land. Because a tribunal is not bound by legal precedent, established by itself or by a reviewing court, A TRIBUNAL IS NOT A COURT even though it performs an important adjudicative function and contribute to the development of law like a court would do. Although stare decisis does not apply to tribunals, their adjudicators will nonetheless find a prior court decision on a similar subject to be highly persuasive and will likely follow the courts in order to ensure consistency in the law and to prevent the embarrassment of having their decisions overturned by the courts.

Among the federal tribunals, there is a small group of tribunals whose decisions must be appealed directly to the Federal Court of Appeal rather than to the Federal Court. These so-called "super tribunals" are listed in Subsection 28(1) of the Federal Courts Act (R.S.C. 1985, Chapter F-7) and some examples include the National Energy Board, Canadian International Trade Tribunal, the Competition Tribunal, the Canada Industrial Relations Board (e.g. federal labour board), the Copyright Board, and the Canadian Radio-television and Telecommunications Commission ("CRTC").

Courts of Inherent JurisdictionEdit

These are the superior courts from the provinces and territories as discussed above. The words "inherent juridiction" refers to the idea that the decision-making power of Canada's superior courts is inherited from England's superior courts rather than granted by Canada's federal parliament or provincial legislatures. Because the superior courts possess "inherent jurisdiction", they can hear cases concerning any area of law except those which are specifically reserved by legislation for the lower "provincial" courts. The doctrine of "inherent jurisdiction" gives superior courts greater freedom than statutory courts (to be explained next) to be flexible and creative in the delivering of legal remedies and relief.

Statutory CourtsEdit

These courts include the Supreme Court of Canada, the different types of federal courts, the various appellate courts from the provinces and territories, and the numerous low level "provincial" courts. Their decision-making power is granted by either the federal parliament or a provincial legislature.

The word "statutory" refers to the fact that these courts' powers are derived from a type of legislation called a statute and is defined and limited by a statute. A statutory court cannot try cases in areas of law that are not mentioned or suggested in the statute. In this sense, statutory courts are similar to non-judicial adjudicative bodies such as administrative tribunals, boards, commissions, etc. which are created and given limited power by legislation. The practical implication of this is that a statutory court cannot provide a type of legal remedy or relief that is not expressly or implicitly referred to in its enabling or empowering statute.

Appointment and Regulation of JudgesEdit

Judges in Canada are appointed and not elected. Judges of the Supreme Court of Canada, the appellate courts and the "superior" courts are appointed by the federal government. Thus, judges of the Ontario Superior Court of Justice are chosen not by Ontario's provincial government but by the same level of government that appoints judges to the federal courts. Meanwhile, judicial appointments to judicial posts in the so-called "inferior" or "provincial" courts are made by the local provincial government. There are Canadians who would like to see their judges be elected as is the case for some American judges, but as of 2005 there is no indication that the longstanding British tradition of appointing judges will be altered in Canada anytime soon. Those who favour the appointment method point out that the election approach could possibly threaten the judiciary's ability to be independent in its decision-making. Because judicial independence is seen by Canadian law to be essential to a functioning democracy, the regulating of Canadian judges requires the involvement of the judges themselves. The Canadian Judicial Council, made up of the chief justices of the various courts, receives complaints from the public concerning questionable behaviour from members of the bench.

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Application of the Constitution

In the governmental structure of Canada there is no clear separation of powers between the judicial, executive, and legislative branches of government. As such, the role of the courts will often overlap into other territories, such as the Supreme Court's advisory role in hearing reference cases. Conversely, the judicial realm can be encroached by other groups, such as the creation of administrative tribunals to hear cases. Nonetheless, there are limits to these sorts of encroachments as can be seen in the issue of justicibility and jurisdiction. Following this, there is the further issue of who is able to apply to the Courts. Namely, what type of individual or group can have proper standing to make a claim to a Court. Lastly, we will look at what sort of remedies are available under the Constitution to a successful claimants.


The justiciability of a dispute asks whether the issue is so political or speculative that the courts should not be involved. The concern is that the courts may go beyond their constitutional role in Canada if they were to get involved in controversies that are outside of their expertise of interpreting and applying the law.

The US constitution is based on a strict doctrine of separation of powers, which is enforced by the "political question" doctrine that prevents courts from examining issues that are meant to be dealt with by the legislative branch. In Canada, however, there is a presumption that the heads of power will overlap to some degree. The "political question" doctrine has been rejected by the Courts (Operation Dismantle).

The current practice has been that so long as there is a legal component to the issue, the dispute will be considered justiciable, but only the legal issue can be examined. In Re Quebec Secession, the Court examined only the "legal framework" of the province's ability to secede, but not the merits of the decision to do so. Equally, in Operation dismantle the courts refused to examine the soundness of the executive branch's policy. In Re Canada Assistance Plan, They further articulated that even if the question is partly political, if there is a "sufficiently legal component" than it can be fairly examined.


As already mentioned, the jurisdictional division between courts is not clean split. The debate focuses on the application of section 96 which gives the federal government the authority to appoint judges to the Superior Courts. As the true authority of the Superior Court is said to be inherent, this section has been construed to provide protection for the Superior Courts' jurisdiction. The Superior Court functions as an anchor to which the entire court system radiates from. The issue of jurisdiction can be framed as the carving out of jurisdiction for inferior and statutory courts. To complicate matters, jurisdiction is not necessarily exclusive. It is possible for courts to have concurrent jurisdiction where two or more types of court can hear a given case.

Provincial CourtsEdit


In recent years the use of administrative tribunals in handling disputes has exploded. These tribunals, created by federal or provincial statute, are typically composed of mostly individuals without legal experience. Familiar examples are rental boards, workers' compensation boards, no-fault automobile insurance boards, and labor dispute panels.

The power of a tribunal to review cases depends on the governments ability to encroach on section 96 powers. The leading case on this is the Supreme Court decision of Re Residential Tenancies Act (1981).

Federal CourtsEdit


Public InterestEdit

Over the past few years there has been a developing tradition of allowing public interest groups to apply to the Courts with constitutional arguments. The test for whether a public interest group can dispute a law was first given in Borowski. The Court proposed a three-step test:



Mootness refers to a legal issue that has no connection to the controversy to be resolved in a court case. The Court generally will decline issues that are moot. The test for mootness is "whether there is a live controversy which affects or may affect the rights of the parties. The court may decline to hear a hypothetical or abstract issue. However, it may exercise its discretion to depart from this general policy or practice".[1]


  1. Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 at 15

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Methods of judicial review

Character of lawEdit

Pith and SubstanceEdit

Purpose and EffectEdit

Double AspectEdit

The doctrine of Double Aspect says that a law may possess more than one "matter" that may be enumerated in both section 91 and 92. The doctrine originates from the Privy Council decision of Hodge v. The Queen (1883) where the court stated that "subjects which in one aspect and for one purpose fall within s.92, may in another aspect and for another purpose fall within s.91". In applying the doctrine, it should be in situations where the importance of one matter should not be significantly larger than the other. In effect, the doctrine removes the need for courts to split hairs to determine which head of power should be assigned a particular law.


Concurrent jurisdictionEdit

Ancilliary effectsEdit

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Distribution of powers


From 1867 until 1982, the Division of Powers was the most important issue in Canadian constitutional law.

Upon reading s. 91 and 92 of the BNA Act (renamed the Constitution Act, 1867 in 1982), it becomes clear that much of what a government does today was not envisaged in 1867. The welfare state, electricity, air and space travel, telecommunications, the automobile, and industrial pollution are of major importance to modern governments. Yet none of these things existed in 1867, and so nothing was mentioned about them in the BNA Act division of powers.

However, as seen in the last lesson on the Unwritten Constitution, a constitutional principle exists that full sovereignty is vested in the two levels of government, i.e., anything that can be thought of is either in the jurisdiction of the federal government or the provincial government. Therefore, for a century and a half, Canadian (and British) courts have been stretching the meaning of the words of the BNA Act to extend to cover all of these new areas of society. The British North America Act, 1867,(BNA ACT) which established a federal Constitution for Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, it was not long before it was found that the topics enumerated in the two sections overlapped, and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within its competence, the legislature is, in truth, making a law on a subject beyond its competence. But where that is not the position, then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment. Vide Citizens Insurance Company of Canada v. William Parsons (1881) 7 AC 96; The Attorney-General for Ontariao v. Attorney-General for the Dominion of Canada 1894 A.C. 189; The Attorney General of Ontaria v. Attorney-General for the Dominion (1896) AC 348; Union Colliery Company of British Columbia v. Bryden (1899) AC 580; Attorney-General for Canada v. Attorney-General for Ontaria (1937) AC 355; Attorney-General for Alberta V. Attorney-General for Canada (1939) AC 117 and Board of Trustees of Letherbridge Northern Irrigation District v. Independent Order of Foresters (1940) AC 513.

Peace, Order, and Good GovernmentEdit

The Fathers of Confederation believed at the time that they had covered every possible new area of law with a clause in the BNA Act. The first paragraph of section 91 of the BNA Act states that the federal government has the power "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", in addition to the powers specifically listed as federal. Thus, any new areas of law would become federal.

It quickly became apparent, however, that the "Peace, Order and Good Government" (POGG)section, if interpreted too broadly, could effectively rob the provinces of most of their powers. For instance: the invention of the automobile. The automobile could have been seen as a new jurisdiction, under the complete control of the federal government. But if so, the province's jurisdiction over roads, cities, intra-provincial transportation, and land would become effectively meaningless.

The Judicial Committee of the Privy Council (JCPC) is a court run by the House of Lords in London. It was the highest court in Canada from 1867 to 1949, and heard Canada's important division of powers cases from that era. It could overrule the Supreme Court of Canada; many important cases bypassed the Supreme Court altogether and went directly to the JCPC.

The JCPC developed a doctrine called "pith and substance". This meant that, whenever a government's legislation was challenged for being outside its jurisdiction, the JCPC would examine the "pith and substance" of the legislation. The court would try to figure out what the law was "really about". Once the JCPC had figured out the legislation's "pith and substance," it would decide which one of the listed powers mentioned in s. 91 or 92 of the BNA Act most closely corresponded with that "pith and substance", to see if the government had jurisdiction. If the pith and substance of the law was substantially within the government's jurisdiction, then any incidental effects the law had on another government's jurisdiction were permissible.

This doctrine greatly increased the importance of the listed powers in s. 91 and 92, consequently decreasing the importance of the POGG clause. The power that the JCPC found most often corresponded to the "pith and substance" of contested legislation was s. 92(13), the provincial jurisdiction over "Property and Civil Rights."

"Civil Rights" is a term of art in Canadian law. Unlike in the United States, where "civil rights" is synonymous with "human rights", civil rights in Canada means the ability of a person to make contracts (including marriage contracts), to buy, sell, and use property, to have parental authority, and to sue and be sued; one can think of them as the rights one attains upon adulthood.

The JCPC found that the pith and substance of most disputed laws related to property and civil rights. In Toronto Electric Commissioners v. Snider (1925), the JCPC struck down the federal Industrial Disputes Investigation Act. It was a law giving the federal government certain authority over certain labour disputes. The JCPC rejected the federal government's argument that such a law was for the Peace, Order, and Good Government of Canada, holding that the POGG power really just gave the federal government the power to act during emergencies. Rather, since labour disputes are contract disputes, such a law is in pith and substance about Civil Rights, a provincial jurisdiction. Therefore, the federal law was struck down as unconstitutional.

The POGG power never really recovered from the rulings of the JCPC. Eventually, the federal government abolished appeals to the JCPC, making the Supreme Court of Canada truly the supreme court. The Supreme Court of Canada has interpreted the POGG power slightly more broadly. In the Anti-Inflation Reference (1975), the federal government asked the Supreme Court whether the federal government could fight inflation by imposing wage and price controls (usually in provincial jurisdiction) using its POGG power. The majority of Supreme Court justices agreed, but for differing reasons. Most felt that POGG was an emergency power, and that the Court should be deferential in letting the federal government decide whether inflation was a "national emergency" or not. This is the "national emergency" doctrine of POGG. A smaller group of judges felt that another doctrine of POGG was also valid: the "national concern" doctrine. This doctrine means that where a new type of jurisdiction emerges, which does not correspond to any of the listed jurisdictions of the BNA Act, AND if it is of "national concern", then it falls under POGG.

The Supreme Court clarified the "national concern" doctrine in R. v. Crown Zellerbach, [1988] 1 S.C.R. 401. The Supreme Court stated that the "National Concern" doctrine is valid, and has the effect of essentially adding a new category to the list of federal powers, if one can answer "yes" to all of these questions:

  1. Is the jurisdiction in question a single, distinct, and indivisible jurisdiction?
  2. Is it impossible for the provinces to deal with this jurisdiction on their own?
  3. Does it have ascertainable and reasonable limits, so that it does not remove large areas of jurisdiction from the provinces?

Despite these decisions, the POGG power has very rarely justified the federal government exercising jurisdiction. Much more common is the politically controversial "Spending Power". Using its taxing power under s. 91(3) of the Constitution Act, 1867, the federal government collects more tax revenue than it needs in order to exercise the areas under its own jurisdictions. It gives the extra money to the provinces to spend on their jurisdictions, providing that the provinces meet certain conditions required by federal laws. This gives the federal government varying amounts of influence over areas of provincial jurisdiction, such as health and education. and its all ???

Interjurisdictional ImmunityEdit

As seen previously, if the government has jurisdiction over the "pith and substance" of the law it has enacted, then any "incidental effects" on other governments' jurisdictions are acceptable. For instance, the federal Divorce Act is valid legislation because the federal government has jurisdiction over divorce (s.91(26)), even though the Divorce Act has some incidental effects on child custody, which is usually considered to be within the provincial jurisdictions of "Civil rights" (s.92(13)) and "Matters of a private nature" (s.92(16)).

In a few rare instances, the Supreme Court of Canada has ruled that the federal government's jurisdiction (up until now, never the provincial government's jurisdiction) had "Inter-Jurisdictional Immunity." Provincial government legislation could have no effect on these jurisdictions, not even incidentally.

There are two cases where this has happened. The first is federal election postering. In McKay v. the Queen (1965), the Supreme Court of Canada held that municipal by-laws could not be enforced to prevent the posters of federal political parties from being put up during election periods. This was because federal election postering has Inter-Jurisdictiona Immunity from provincial government legislation. Since municipalities get their authority to make by-laws from provincial legislation (see BNA Act s. 92(8)), such by-laws had no effect on federal election posters. This did not mean that the municipal by-law was rendered invalid; it maintained its effect on every type of postering except federal election posters.

The other case were the Supreme Court has recognized Inter-Jurisdictional Immunity is in Federal Works and Undertakings. This federal power oddly comes from BNA Act s.92(10)(a). The provincial government has jurisdiction over "works and undertakings" except the ones listed. One of these exceptions is "telegraphs". Consequently, the major telephone companies are all under the jurisdiction of the federal government.

Worker health and safety is a provincial jurisdiction ("Civil rights"). So, if the province passes a law which, in pith and substance, regulates worker health and safety, can it have incidental effects of the major telephone companies? No, according to the Supreme Court decision in Bell Canada v. Quebec (C.S.S.T.), [1988] 1 S.C.R. 749. The Supreme Court laid out the following test:

  1. If the purpose of the provincial law is to regulate a federal work/undertaking, then it is unconstitutional.
  2. If the provincial law directly affects a vital part of the federal work/undertaking, then interjurisdictional immunity applies (the law has no effect on the federal work/undertaking).
  3. If the provincial law has an indirect effect which impairs the operation of the federal work/undertaking, then interjurisdictional immunity applies.

On the facts of the case, the Supreme Court ruled that occupational health and safety directly affected the vital management decisions of Bell Canada, and therefore the law had no effect on the company.

The Interjurisdictional Immunity doctrine has a very limited application; for the mostpart, provincial legislation applies to companies that are usually under the jurisdiction of the federal government.

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Aboriginal peoples

Government jurisdictionEdit

By virtue of section 91(24) of the Constitution Act, 1867 the federal government has exclusive jurisdiction over matters relating to “Indians and lands reserved for the Indians”. On this basis the federal government has sole jurisdiction to negotiate treaties with the aboriginal peoples. Any attempt on the part of the provincial governments to interfere with any of the treaties would be in violation of the Constitution.

The Indian Act is the sole legislation regulating the government oversight of aboriginals. Much of the Act deals with the rights of band members living on reserves, and has little constitutional significance.

Provincial JurisdictionEdit

Section 88 of the Act provides that the provinces can have jurisdiction over aboriginal matters so long as it does not conflict with the laws of the Act.

88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act.

The extent of provincial authority over Indian matters apply only with respect to matters that fall within the provincial jurisdiction. However, in practice five exceptions have been developed.

Aboriginal and Treaty rightsEdit

Section 35 of the Constitution Act, 1982 acknowledges the existence of aboriginal and treaty rights, it states:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Often this section is confused as being part of the Charter which ends at section 34. Thus, this section provides an absolute right to aboriginals and is not subject to section 1 or 33.

The word "existing" is key to the understanding of section 35. The Supreme Court acknowledged in R. v. Sparrow[1990] 1 S.C.R. 1075 that, prior to 1982, aboriginal rights existed by virtue of the common law, and therefore could extinguished by an Act of Parliament. However, with the constitutional entrenchment of those rights in section 35, aboriginal rights cannot be extinguished unilaterally by the government.

Broadly speaking, section 35 provides for two types of aboriginal rights: Aboriginal Treaty Rights and Aboriginal Rights. The first is a sui generis right gained through the enactment of treaties between the government and the aboriginal peoples. Proving the existence of these rights can often prove difficult as they are frequently based on oral tradition passed on through the aboriginal peoples. The second type is a right based in the common law.

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Charter of Rights and Freedoms


Up until 1982, the previous section covered just about all of Canadian constitutional law. In just over two decades, the Constitution Act, 1982 has had a predictably enormous impact on constitutional law. The most important section of the Constitution Act, 1982, both for the legal community and for the general population, has been the Canadian Charter of Rights and Freedoms ("Charter"). The Supreme Court of Canada has spent most of the past twenty years interpreting the Charter, and in so doing, has caused governments and lawyers to rewrite the basic rules of almost every area of public law.

Before the Charter came into effect, Canadian law had a melange of legal human rights protections. For the average person, they worked very well, although what most people now consider enormous injustices were legally inflicted on some. The Supreme Court of Canada held that the Unwritten Constitution protected some human rights. In Roncarelli v. Duplessis, [1959] 121., the Court ruled that the Constitution protected the people from arbitrary action by government officials. The federal government enacted the Canadian Bill of Rights in 1960, although it is now remembered mainly for the occasions that courts refused to apply it. In addition, some provinces had human rights legislation which forbade people from exercising their civil rights in discriminatory ways. However, as a general rule, no instrument permitted courts to strike down laws which violated human rights. This changed in 1982 by virtue of s. 52 of the Constitution Act, 1982, which stated that any law that violated the Constitution, including the new part of the Constitution containing the Charter, was of no force or effect.

In order to give full effect to the Charter, the Supreme Court of Canada decided to give the Charter a "broad and liberal interpretation." (R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295). The Court adopted a "purposive" approach, asking what the purpose of protecting the rights in question are, and giving effect to those purposes through the Court's interpretations of their meanings. This contrasts with the Supreme Court's interpretation of the Canadian Bill of Rights, in which the meaning of the words of the Bill were interpreted so narrowly that the Bill protected virtually no rights in practice.

Applicability of the CharterEdit

According to s.32, the Charter applies to "the Parliament and government of Canada" and the "legislature and government of each province". It does not apply to private individuals or corporations. If Mr. Smith discriminates against Mr. Jones, Mr. Jones cannot go to court and sue Mr. Smith for violating his Charter rights (although Mr. Jones would probably be protected against discrimination by other legislation). Of course, the "legislature and government" is a broad term. How far does it apply? To organizations that receive government grants? To people who bring a private dispute to a court created by the government?

In RWDSU v. Dolphin Delivery, [1986] 2 S.C.R. 573, the Supreme Court of Canada decided that the Charter did not apply to a dispute between two private parties before the courts. More controversially, it also decided that the Charter did not apply to the common law, unless the common law was the basis for government action. So, even if the common law restrictions against picketing violated the picketer's freedom of expression, the Charter would not protect him from being sued by the target of the picketing.

The "effective control test" determines whether an organization is part of the government or not for the purposes of Charter s.32. In Mckinney v. University of Guelph, [1990] 3 S.C.R. 229, the Court decided that Universities are not part of the Government, even though they receive most of their money from the government. The main question to ask is how much control the government has over the institution: Is there a law that directs how the institution will operate? Does the government appoint the majority of the institution's board of directors? Does the institution have any history or guarantees of independent action from government? The greater the government control over the operation of the institution, the more likely it is to be a part of the government, although different Supreme Court decisions have required different amounts of control.

Limits on RightsEdit

The first section of the Charter, somewhat surprisingly, is the main section placing limits on the rights and freedoms contained in the Charter. Section 1 states: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

For Charter rights to be limited, the limits must meet three requirements:

  1. They must be reasonable in a free and democratic society
  2. They must be prescribed by law
  3. They must be demonstrably justified

The second and third requirements are relatively clear. "Prescribed by law" means that the limits must be written either in legislation or regulation. A governmental limit on Charter rights cannot be arbitrarily decided by an official. Nor can it be contained in rules which do not amount to "law", such as administrative manuals. "Demonstrably justified" means that the burden of proof is on the government to prove that the limits it has imposed are reasonable. In court, this means that once the plaintiff proves on a balance of probabilities that his or her rights have been violated, the government must prove on a balance of probabilities that it is reasonable.

On the other hand, the question of what constitutes a "reasonable limit" in a "free and democratic society" is perhaps the most important question of modern constitutional law. Most major Charter cases in Canada do not turn on the question of whether a right has been violated (the courts often find that it has been), but whether the law constituted a reasonable limit on that right.

The test for deciding whether the violation of a Charter right is a reasonable limit on a right or freedom was created by the Supreme Court in R. v. Oakes, [1986] 1 S.C.R. 103. Known simply as the Oakes test, it asks the following questions:

  • Is the purpose of the legislation to limit the charter right or freedom? If so, it is not a reasonable limit.
  • Is the limit proportional to the objective? It is if it meets all of the three following criteria:
    • The limit has a "pressing and substantial objective"
    • The limit infringes on the Charter right as little as possible to meet its objective (aka the "minimal impairment test")
    • The benefit of the limit is greater than the harm caused by limiting the right or freedom

The Oakes test is still used by the Supreme Court, although it has nuanced the second part of the proportionality test. The Supreme Court found that a limit on a right should infringe at right "as little as possible" when the objective of the law is to set relations between the government and the individual (for instance, in criminal law, where it is the government against the individual). However, the government should have more flexibility when trying to strike a balance between different groups of people. This latter case would come up most often in areas of social welfare. Where the government cannot afford to give everyone equal benefits, it will almost always have to create a somewhat arbitrary dividing line, such that some people have their right to be treated equally violated. The Court must give some flexibility to the government in deciding whom to give benefits and whom to deny. In such a case, the Supreme Court reasoned in McKinney, the "minimal impairment test" is whether the government had a reasonable basis for believing that the right to equality has been violated as little as possible to achieve the government objective.

Freedom of ExpressionEdit

Perhaps other than the Equality provisions, freedom of expression (Charter s. 2(b)) has created the most important litigation and had the biggest impact on Canadian society.

One of the most important questions to be litigated was what was protected as "expression". In Irwin Toy ltd. v. Quebec (Attorney general), <no wiki>[1989</no wiki> 1 S.C.R. 927], the Supreme Court ruled that anything that "conveyed meaning" was expression. This meant virtually any way that someone chose to express themselves, whether through words, acts, or depictions. Anything that conveyed meaning and was not in "an unacceptable form" (i.e., violence or threats of violence), was protected by the Charter.

The second question the Supreme Court answered in Irwin Toy was what constituted a violation of the right to free expression. If the purpose of the government restriction on expression was to restrict certain content, then that restriction violates the Charter. This includes restricting certain methods of conveying meaning that are tied to the content itself (e.g., instead of banning rock music, the content, banning FM radio, the method of conveying the music).

If the purpose of the limit is not to restrict content but to prevent certain harmful effects from the way the content is physically expressed, then the court must examine the effects of the restriction. If the restriction has the effect of frustrating "the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing", then the restriction violates the Charter. The burden of proof is then on the government to show that the restriction is reasonable under the Oakes test. If it is not reasonable, then the restriction on expression is unconstitutional.

In cases after Irwin Toy, the Supreme Court has found that political expression promotes "the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing" more than other types of expression, such as commercial advertising or pornography. Therefore, almost all restrictions on political expression have been found to be violations of the right to free expression.

Another important finding in Irwin Toy was that corporation has the right to free expression (although much of its expression will be commercial advertising, the restriction of which is not always a violation of free expression).

Search and SeizureEdit

Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.

Under the heading of legal rights, section 8 states:

8. Everyone has the right to be secure against unreasonable search or seizure.

Reasonable expectation of privacyEdit

Generally speaking, this right does not protect against normal searches or seizures. Rather, the right focuses on the action being unreasonable on the basis that it violates an indivdual's reasonable expectation of privacy.


According to s. 15 of the Charter, everyone is equal before and under the law and has equal protection and equal benefit of the law, without discrimination. Section 15 further lists some prohibited grounds of discrimination: race, national or ethnic origin, colour, religion, sex, age, mental ability, and physical disability.

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143defined discrimination. Discrimination is a distinction which imposes disadvantages or withholds advantages based on the characteristics of an individual or group. A mere distinction is not enough. It must be a distinction based on characteristics that a person has because he or she belongs to a certain group.

That group must either be distinguished by one of the prohibited grounds above, or "analogous" grounds. A ground is analogous if it has some of the following similarities to the grounds listed, such as:

  • having that characteristic is not in the control of the individual
  • that characteristic cannot be altered or can only be altered at unacceptable cost
  • the groups defined by that characteristic have relatively little power in society

Andrews decided that being a non-citizen was an analogous ground of discrimination. The Supreme Court has also ruled in Vriend v. Alberta, [1998] 1 S.C.R. 493 that sexual orientation is an analogous ground. Vriend is also important as being the first case in which the Supreme Court required the provinces to add a new prohibited ground of discrimination in their human rights legislation. Provincial human rights legislation, unlike the Charter, apply to private disputes.

Exclusion of EvidenceEdit

Practices regarding what evidence may be brought against an individual in trials are addressed by section 24(2). This subsection is said to make Canadian practices regarding this matter more like those in the United States; however, the Canadian standards are still not as strict as the US standards. Whereas in the US, any evidence will not be used against the individual if it was acquired in an illegal way, for evidence to be excluded in Canadian trials, it must not only have been acquired illegally but must also threaten to bring the Canadian court system into "disrepute."[4] The 1987 case R. v. Collins attempted to define this. It was ruled that evidence should be excluded if it would render the trial unfair, and furthermore, the more Charter rights are violated, the more courts should have an obligation to exclude the evidence that violated the rights. Often, it is the right to have counsel and the security from unreasonable search and seizure that, when infringed, lead to evidence being excluded.

"Notwithstanding" ClauseEdit

The addition of the Charter to the Constitution was a radical change in Canadian constitutional law. To assuage concerns that the courts were being given too much power to rewrite and reinterpret legislation, s.33 was included in the Charter. Under this provision, legislation can be made immune from being challenged as a violation of certain Charter rights. These include freedom of expression, religion, assembly, association, and freedom from discrimination, as well as criminal rights. Legislation can operate "notwithstanding" these rights for renewable terms of five years. This clause has rarely been used in practice.

External linksEdit

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