Cecily Zamora
Canadian Constitutional Law is a complex and intriguing area of study, with a unique set of challenges and considerations. At its core, the Canadian Constitution is a blend of written and unwritten principles, creating a dynamic tension that shapes the country's legal landscape. Examining past exam questions in this field reveals a focus on exploring the interplay between democracy and judicial review, as enshrined in the Canadian Charter of Rights and Freedoms. Students are often tasked with evaluating landmark cases, such as Frank v Canada (Attorney General) and the Reference re Securities Act, to critically analyse the legal reasoning employed by various judgements. Additionally, the role of advisory opinions in guiding government decision-making is crucial, with the Supreme Court of Canada playing a pivotal role in interpreting reference questions from the federal government. As students delve into these topics, they develop a nuanced understanding of the rights, freedoms, and checks and balances that define Canada's constitutional framework.
| Characteristics | Values |
|---|---|
| Discuss the tension between written and unwritten parts of the Canadian constitution | Use case law to support your answer |
| Discuss the purpose of the Canadian Charter of Rights and Freedoms | Use case law to support your answer |
| Critically evaluate legal reasoning in Frank v Canada (Attorney General) [2019] SCC 1 | N/A |
| Discuss the decision of "The Reference re Securities Act [2011] 3 SCR 837" | Discuss in relation to the principle of 'cooperative federalism' |
| Discuss Hogg and Bushell's theory of democratic dialogue | Discuss its praise and problems |
| Reference questions | Only governments can initiate them |
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What You'll Learn
Tension between written and unwritten parts of the constitution
Canada's Constitution has always been characterized by a duality of written and unwritten elements. The written components include the Constitution Act, 1867, the Constitution Act, 1982 (which includes the Canadian Charter of Rights and Freedoms), treaties between the Crown and Indigenous peoples, and certain statutes deemed constitutional by the courts. These written aspects establish the federal branches, divide powers between federal and provincial governments, create individual rights, affirm Aboriginal and treaty rights of Indigenous peoples, and outline the process for constitutional amendments.
The unwritten elements are equally significant and include constitutional conventions, prerogative powers, common law rights, Charter values, and constitutional principles. These unwritten principles help interpret the Constitution, fill gaps in the written text, and ensure its evolution to address new circumstances. For example, in 1929, Canada's highest court interpreted the word "persons" in the Constitution to include women, demonstrating the adaptability of the Constitution through unwritten principles.
However, the tension between the written and unwritten parts arises when there is a conflict between these elements. In the case of Toronto (City) v Ontario (Attorney General), the Supreme Court of Canada held that unwritten constitutional principles cannot invalidate legislation but can only aid in interpretation and filling gaps. This decision underscores the primacy of the written Constitution, ensuring that unwritten principles cannot override its provisions.
The existence of unwritten constitutional components was reaffirmed in 1998 by the Supreme Court in Reference re Secession of Quebec, and they continue to play a crucial role in shaping the interpretation and application of Canada's Constitution. Nonetheless, the tension between the written and unwritten parts of the Constitution persists, and it is a topic that is often discussed and analyzed in Canadian constitutional law.
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Purpose of the Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter, is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982. The Charter was proclaimed in force by Queen Elizabeth II of Canada on April 17, 1982.
The Charter guarantees certain political rights to Canadian citizens and civil rights to everyone in Canada. It is designed to unify Canadians around a set of principles that embody those rights. The Charter sets out those rights and freedoms that Canadians believe are necessary in a free and democratic society. It was intended to be a source of Canadian values and national unity. The Charter's unifying purpose was particularly important to the mobility and language rights.
The Charter protects Canadians against the state and minorities against parliamentary majorities. It applies to anyone in Canada, citizen or newcomer. However, some of its rights apply only to citizens, including the right to vote and the right to enter and leave the country. Its language is more general than specific, which is one reason critics fear it gives too much interpretive power to judges.
The principal rights and freedoms covered by the Charter include freedom of expression, the right to a democratic government, the right to live and seek work anywhere in Canada, the legal rights of people accused of crimes, the rights of Indigenous peoples, the right to equality including gender equality, the right to use Canada's official languages, and the right of French or English minorities to an education in their language.
Section 33 of the Charter, sometimes referred to as the "notwithstanding clause", requires a government that wishes to pass laws that limit Charter rights to clearly state what it is doing and accept the political consequences. It gives Parliament and provincial and territorial legislatures limited power to pass laws that may limit certain Charter rights, namely fundamental freedoms, legal and equality rights. They can only do this if they clearly state that a particular law is exempt from the Charter.
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Application of the Charter to private action
The Canadian Charter of Rights and Freedoms applies to the government and not to private individuals, businesses, or other organizations. However, there are two ways in which the Charter can be applied. Firstly, if an entity is considered a part of the "government", either inherently or due to extensive government control, then the Charter applies to all of its actions. For example, the Charter applies to Ontario public school boards as they are considered "government by nature".
Secondly, even if an entity is not part of the government, the Charter might still apply to certain actions of that entity. This occurs when a non-governmental entity implements a specific government policy or program. In this case, the entity must comply with the Charter when performing the relevant governmental activity but not in respect of their non-governmental or private activities. For instance, private corporations are created by statute and derive their authority from legislation, but the Charter does not apply to them because they are not entrusted to implement specific governmental policies.
The Supreme Court of Canada has discussed the application of the Charter in the context of purely private litigation. In Dolphin Delivery, it was held that a party to a dispute between private individuals could rely on the Charter if it could be shown that the other party relied on some form of governmental action. However, private parties cannot found their cause of action upon a Charter right as these rights do not exist in the absence of state action.
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Legal reasoning in Frank v Canada (Attorney General)
In Frank v Canada (Attorney General) [2019] SCC 1, the Supreme Court of Canada considered the issue of voting rights for non-resident citizens. The appellants, Dr. Frank and Mr. Duong, were Canadian citizens who had moved to the United States temporarily for educational purposes and maintained strong connections to Canada. They challenged the restriction on their voting rights as non-residents, arguing that it breached their democratic rights under the Charter.
The central legal question in this case was whether the limit on the voting rights of non-residents was a reasonable and justifiable limit under s. 1 of the Charter. The respondent, the Attorney General of Canada (AGC), conceded that the voting restriction breached s. 3 of the Charter but argued that it advanced the objective of maintaining the fairness of the electoral system for resident Canadians. The AGC asserted that this objective justified the limitation on the democratic rights of non-resident citizens.
The Court's legal reasoning focused on evaluating the justification provided by the AGC. The Court acknowledged that maintaining electoral fairness for residents was an important legislative objective. However, the Court concluded that the electoral fairness objective was vague and unsubstantiated. The AGC failed to demonstrate how limiting the voting rights of non-resident citizens was minimally impairing or tailored to address a specific problem. The five-year threshold for determining non-resident status was arbitrary and did not consider the varying circumstances of individuals with strong connections to Canada.
Additionally, the Court considered the impact of the voting restriction on the appellants and other non-resident citizens. The Court recognized that voting is a fundamental political right and a core tenet of democracy. By denying the right to vote to non-resident citizens with deep and abiding connections to Canada, the voting restriction improperly impaired their democratic rights. The Court concluded that the limitation could not be demonstrably justified under s. 1 of the Charter and, therefore, breached the democratic rights protected by the Charter.
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Evaluating the principle of 'cooperative federalism'
Canadian federalism is a system of government where political power is shared by the federal and provincial governments. Cooperative federalism is a concept of federalism based on the federal and provincial governments working together to achieve mutual goals. The division of powers, outlined in sections 91 (federal powers) and 92 (provincial powers) of the Constitution Act, 1867, limits what each level of government can do.
Cooperative federalism has been developed by the courts into a legal principle that rejects strict approaches to interpreting the division of powers. This reflects the reality that the federal and provincial governments must often establish coordinated efforts. A more flexible approach to interpreting the division of powers makes collaboration between governments easier. Courts prefer to allow laws jointly enacted by both levels of government to operate in order to promote cooperative federalism.
Despite its name, the principle of cooperative federalism has been invoked by courts to support independent action by each order of government. For instance, in Alberta (Attorney General) v Moloney, the majority of the Supreme Court referred to cooperative federalism as a principle favouring a restrained application of the paramountcy doctrine. This means that while there is a call for cooperation, the end result is that both orders of government may act independently of one another.
In another case, Reference re Secession of Quebec, the Supreme Court concluded that the principle of cooperative federalism cannot be used to force the federal government to give Quebec certain data. If the federal government has the power to create registries, it also has the power to dispose of its data without Quebec's consent.
In evaluating the principle of cooperative federalism, it is important to consider its implications and consequences. While cooperative federalism promotes collaboration and coordination between the federal and provincial governments, it can also lead to uncooperative consequences and independent action by each order of government. The interpretation and application of cooperative federalism can vary depending on the specific context and the approach taken by the courts.
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Frequently asked questions
A reference question is a submission by either the federal or provincial government that asks the courts for advice on a legal issue. The court's answer is not binding and results in an "advisory opinion" that guides the government in determining a law's meaning or the constitutionality of a proposed action.
Only governments can initiate reference questions. They cannot be initiated by private individuals or groups, but a court's advice often impacts these stakeholder groups.
The Supreme Court of Canada (SCC) hears reference questions from the federal government. It is the highest court in the country, and its decisions are the final word on the reference questions put before it.
One example is, "There is an undesirable tension between written and unwritten parts of the Canadian constitution." This question can be discussed by using case law to support your answer.
