COMPARATIVE
CONSTITUTIONAL LAW
Class 4
August 27, 2008
Map of the Human Heart (1993)
• Excellent film
focusing on Native
Canadians (halfInuit boy, half-Cree
girl)
• Directed by Vincent
Ward
• Music by Gabriel
Yared (former law
student!) Wrote
music for Cold
Mountain
WRAP UP: We Compared Canada and
US
• Supreme Court (not entrenched other than
ss. 41, 42) – creation, jurisdiction
• JUDICIARY - SCA s. 6. At least three of
the judges shall be appointed from among
the judges of the Court of Appeal or of the
Superior Court of the Province of Quebec
or from among the advocates of that
Province.
• Appointment process, other
qualifications
SEPARATION OF POWERS
• Less executive-legislative judicial
independence in Canada
• Judicial Independence: Explicit
constitutional guarantees?
Constitution Act 1867
• Section 99(1) Subject to subsection two
of this section, the Judges of the
Superior Courts shall hold office during
good behaviour, but shall be removable
by the Governor General on Address of
the Senate and House of Commons
Constitution Act 1982
• 11. Any person charged with an offence
has the right …
• (d) to be presumed innocent until
proven guilty according to law in a fair
and public hearing by an independent
and impartial tribunal;
Are there implied guarantees of
judicial independence?
Are there implied guarantees of
judicial independence?
• Re Remuneration of Judges [1997] 3
SCR 3 – 3 components of judicial
independence
• Rehearing in 1998 [1998] 1 S.C.R. 3 ;
• Provincial Court Judges’ Assn. of New
Brunswick v. New Brunswick (Minister
of Justice) [2005] 2 S.C.R. 286
Unanimous decision (McLachlin, Major,
Bastarache, Binnie, LeBel, Deschamps,
Fish, Abella, Charron)
2006 dispute over federal judicial
salaries
• Federal legislation
introduced in June 2006
to raise salaries of 1100
federal judges by 7.25
per cent (independent
commission
recommended 11 per
cent)
• Settled – 7.25%
increase plus cost of
living increases
(retroactive to 2004)
Judicial Salaries: Supreme Courts
of Canada and U.S.
• Canadian Chief Justice: $334,100
Canadian Puisne Judges: $309,300
• U.S. Chief Justice: $217,400
• U.S. Associate Justices: $208,100
• Exchange rate: $1 Canadian = about $ .95
U.S.
Current 2008 dispute over federal
judicial salaries
• Judges’ 4 year pay and benefit package expired
April 1, 2008
• Judicial compensation commission wants
increases of 17% over 4 years – Chief Justice
would then get nearly $400,000 (Canadian)
• Judges had asked for 10% over 4 years plus
cost of living increases (close to what
commission recommends); Government says
5% is all it can manage
Compare: US Constitution
• Art III s. 1 The Judges, both of the
supreme and inferior Courts, shall hold
their Offices during good Behaviour,
and shall, at stated Times, receive for
their Services, a Compensation, which
shall not be diminished during their
Continuance in Office.
Should U.S. judges’ salaries be
higher?
Advisory Opinions
• REVIEW Compare jurisdiction of
Supreme Court of Canada and US to
give advisory opinions to questions
referred by the federal/state/provincial
government – a separation of powers
issue
Advisory Opinions
• Example: Patriation
Reference : Re
Resolution to
Amend the
Constitution [1981]
1 SCR 753
• Pierre Elliott
Trudeau (PM
(Liberal) 19681979,1980-1984)
strong nationalist
FEDERALISM
• Relationship between Canadian federal
government and the provinces.
LEGISLATIVE POWERS
• Where are these found in the Canadian
Constitution?
LEGISLATIVE POWERS
• Where are these found in the Canadian
Constitution? Section 91 (29 heads of
federal power) and section 92 (16 heads of
provincial power)
• Compare with U.S. Constitution Art. I § 8 and
Amendment X. Amendment X
• The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or
to the people.
OVERLAPPING POWERS
• Do the federal and provincial powers
overlap?
OVERLAPPING POWERS
• Do the federal and provincial powers overlap?
• E.g. 92(13) provincial power over property and
civil rights in the province; 91(2) federal power to
regulate trade and commerce (compare to
Commerce Clause) ; 91(19) interest, 91(21)
bankruptcy/insolvency
• How did Privy Council generally deal with
overlap in its case law?
• What happens if government (Federal or
provincial) does not act if assigned sphere of
legislative power? Contrast to US (see Field p.
11 RR)
DETERMINING WHICH LIST OF
POWERS APPLIES TO A
PARTICULAR LAW
• Pith and substance
of the law: See The
Labatt Case [1980] 1
SCR 914 p. 28 RR
• Laws with a double
aspect
PARAMOUNTCY OF FEDERAL
LAW
• If there is conflicting federal and state
law, federal law prevails.
• Compare to Article VI
PEACE, ORDER AND GOOD
GOVERNMENT
• Paix, ordre, et bon gouvernement
• Preamble to Section 91: It shall be lawful for
the Queen, by and with the Advice and
Consent of the Senate and House of
Commons, to make Laws for the Peace,
Order, and good Government of Canada, in
relation to all Matters not coming within the
Classes of Subjects by this Act assigned
exclusively to the Legislatures of the
Provinces Was this interpreted broadly by
the Privy Council? Like the N & P Clause in
Art. I § 8?
PEACE, ORDER AND GOOD
GOVERNMENT
• Was section 91 this interpreted broadly by
the Privy Council? In general, no
• Gap-filling (but only over incorporation of
companies with non-provincial objects that
did not fall w/in s. 92(11)
• Emergencies
• PROBLEMATIC LANGUAGE AND
STRUCTURE IN sections 91 and 92
• Hogg suggests the language is the result of
conflicting goals.
Section 132 Constitution Act 1867
• The Parliament and Government of
Canada shall have all Powers necessary
or proper for performing the Obligations of
Canada or of any Province thereof, as Part
of the British Empire, towards Foreign
Countries, arising under Treaties between
the Empire and such Foreign Countries.
Labour Conventions [1937] AC
326 (PC)
• Lord Atkin: while the
ship of state now sails
on larger ventures and
into foreign waters she
still retains the
watertight
compartments which
are an essential part of
her original structure
• Effect of this case? (still
good law)
Lord Atkin
• Considered himself
Welsh
• Motivated by
Christian faith and his
views of what
common sense
required..
F.R. Scott’s critique
• So long as Canada clung to Empire
treaties and no doctrine of ‘watertight
compartments’ existed; once she became
a nation in her own right, impotence
descended.
EMERGENCY FEDERAL
POWERS
• Did the Privy Council take the
view that the POGG power of the
federal government was broader
power during emergencies?
• What about the Canadian
Supreme Court?
National Concern
• Another branch of POGG recognized by Supreme
Court of Canada after 1949.
• For a matter to qualify as a matter of national
concern, . . . It must have a singleness,
distinctiveness and indivisibility that clearly
distinguishes it from matters of provincial concern
and a scale of impact on provincial jurisdiction that
is reconciliable with the fundamental distribution of
legislative power under the Constitution.
EXAMPLES?
• See Crown Zellerbach Case [1988] 1 SCR 401 RR p.
36 – is federal legislation regulating dumping
constitutionally applicable to waters within
provincial territory?
OVERLAPPING POWERS
• E.g. 92
BROAD INTERPRETATION OF
PROVINCIAL POWERS
• Especially s. 92(13): In each Province
the Legislature may exclusively make
Laws in relation to Matters coming
within the Classes of Subjects next
hereinafter enumerated; that is to say, .
. . property and civil rights in the
province.