COMPARATIVE CONSTITUTIONAL LAW Class 4 August 27, 2008

Map of the Human Heart (1993) Excellent film focusing on Native Canadians (half- Inuit 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 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?

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) , ) 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 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.