Canadian Constitutional Law/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 justicibility 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 justicible, 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.
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).
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".
- Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC),  1 SCR 342 at 15