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.

Justiciability

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.

Jurisdiction

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.

Tribunals

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).

Standing

Public Interest

Over the past few years, there has been a developing tradition of allowing public interest groups to judicially challenge the validity of legislation. The test for whether a public interest group can dispute a law was first given in Canada (Minister of Justice) v Borowski, [1981] 2 S.C.R. 575. The Court proposed a three-step test:

1. Is there a "serious issue" as to the validity of the law? If so,
2. Can the plaintiff show that they either (a) are directly affected by the law, or (b) have a "genuine interest" in the validity of the law? If so,
3. Is there no other "reasonable and effective manner" in which the issue of the law's validity can be brought before the court?

In the Borowski case, the Court considered a challenge to Canada's abortion law from anti-abortion activist Joe Borowski, who argued that it violated the right to life of fetuses as guaranteed by Section 7 of the Charter of Rights and Freedoms. The Supreme Court held that Borowski did have standing to challenge the law, since Borowski (a) did present a serious issue before the court, (b) he did have a genuine interest in the law's validity, and (c) "[a]s the legislation provides exemption from criminal liability, it would be difficult to find a class of person directly affected or exceptionally prejudiced by it who would have cause to attack the legislation."

This test was modified by Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 (CanLII), [2012] 2 SCR 524, which established the following standard:

1. Does the case present a "serious justiciable issue"?
2. Can the plaintiff show that they either (a) have a real stake in the proceedings or (b) are engaged with the issues that they raise?
3. Is the suit, in all of the circumstances and in light of a number of considerations, a reasonable and effective means to bring the case to court?

The Court held that the "no other reasonable and effective manner" standard from Borowski was rarely applied consistently, and thus superseded that rule with one that merely addresses the question of whether the suit is a reasonable means, rather than the only reasonable means, of bringing the issue to court. Justice Cromwell, writing for the Court, stated:

[The third criterion for public interest standing] has not always been expressed and rarely applied so restrictively. My view is that we should now make clear that it is one of the three factors which must be assessed and weighed in the exercise of judicial discretion. It would be better, in my respectful view, to refer to this third factor as requiring consideration of whether the proposed suit is, in all of the circumstances, and in light of a number of considerations ... a reasonable and effective means to bring the challenge to court. This approach to the third factor better reflects the flexible, discretionary and purposive approach to public interest standing that underpins all of the Court’s decisions in this area.

Mootness

A legal issue is moot if it has no connection to the controversy to be resolved in a court case. The test for mootness is "[whether] a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties." The Court may decline to hear cases that present merely hypothetical or abstract issues. The Court grounds this policy in (a) the requirement of an adversarial legal relationship between the parties, (b) the scarcity of judicial resources, and (c) the need for courts to be aware of the judiciary's role as an interpretive, not legislative, entity. However, it may exercise its discretion to depart from this general policy, if it finds that the underlying rationalia for the mootness doctrine do not apply in a particular case.

References

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