General Review & Some Principles
First: Secession Reference
Supreme Court Questions:
1) Can Que. legislature declare unilateral secession under Canadian law?
2) Can Que. legislature declare unilateral secession under international law?
3) If Canadian and International law conflict, which one takes precedence?
Supreme Court Answers:
1) No and yes, sort of, maybe
2) No.
3) No real conflict
Principles involved in Answer 1:
a) federalism
b) democracy
c) constitutionalism and rule of law
d) respect for minorities
Review: Structure and Operation of the Constitution
"Distribution of power among organs of the State":
Constitution Act, 1867
a) nuts and bolts of executive, legislative, and judiciary functions
b) federalism
c) language
d) recognized pre-Confederation constitutional arrangements (e.g. Quebec Act 1774)
Canada Act, 1982
Constitution Act, 1982
a) consitutional supremacy & definition & entrenchment
b) civil liberties (Charter of Rights and Freedoms)
c) amending formulas
d) patriation (full Canadian control of Canadian constitution
Additional elements
*Canadian statutes: e.g. Supreme Court Act, Provincial Human Rights Codes (not mentioned in Consitution Act, 1982)
*convention
* Prerogative
* case law
*other elements implied in "a constitution similar in principle to that of the United Kingdom"
- Judicial independence
- Rule of law
- "liberal" reading of constitutional law
Question: but how does all of this work?
Short answer: because political players accept it, and act as though it really does work
Focus on the Judiciary (courts)
*Courts as final arbiters of what the law is
*Courts as interpreters of the constitution
*Courts as basis of trust in the fairness of law
Beauregard
Question: can Parliament require Superior Court judges to contribute to their own pension plans?
(Short) Answer: yes
So what is the issue?
Principle of judicial independence
*Does parliament's control over judges' salaries impair their independence?
*Are judges governmental employees? (No)
*Would it be a bad thing if judges were governmental employees? (Yes)
Judicial independence: what is it?
* "complete liberty of individual judges to hear and decide cases that come before them"
* no external interference
* guarantee of neutrality and fairness
* especially important when government is a litigant in a trial (e.g all criminal trials)
Sources/Reasons for independence
(Canadian context reasons)
a) federalism (neutral umpire between federal and provincial governments)
b) civil liberties (Charter of Rights and Freedoms)
c) text of Constitution Act, 1867 "similar in principle to that of the UK" implies British commitment to independence was retained
One more reason for Judicial Independence:
*needed to make another constitutional principle possible:
The Rule of Law