CIVE 463 Lecture 3: Class 3_W2
25 May 2018
School
Department
Course
Professor
Class 3: The nuts and bolts and (constitutional?) basis of judicial review
What is the constitutional basis of judicial review in Canada?
• Is there some place in the Constitution Act 1867?
o preamble, principle of good government
o s. 96: all it really does is give appointing power of judge of superior court to the
federal Crown. Crevier: the purpose of s. 96 is not just establishing an appointing
power, but rather a power of superior court of inherent jurisdiction. Argument was
met with criticism: s. 96’s location should be a signal that simply who gets the
appointing power, federal Crown rather than provincial Crown. The court
supports that with the preamble, as it says that our Constitution similar in
principles as the UK Constitution. AV Dicey on the British Constitution: 2
principles that structure C:
▪ parliamentary sovereignty
• there is nothing that parliament can, cannot, do, ex of the
omnipotence of parliament law-making: what had been unlawful,
lawful, amnesty laws - parliament pardon wiping out indigenous
peoples);
• a present parliament cannot tie the hands of future parliament (See
Canada Assistance Plan) = parliament here and now is all
powerful
• → reflects democratic ethos: because it is only if parliament is
sovereign that we can appropriately say that people rule
themselves as the parliament is an expression of the people giving
laws to themselves, i.e. freedom. It is only if commander is
uncommanded that we can talk about parliament jurisdiction being
legitimate
▪ rule of law - 3 ingredients
• all equal under the law (Roncarelli) - possibility to find redress
against a public actor
• access “ordinary courts” (i.e. Superior courts with inherent or
original jurisdiction) that are independent (not politically
appointed) and impartial (no vested interest in a case) →
institutional means through which you are all to be deemed equal
before the law
• spirit of the law: repository of principles in the CML. For judicial
review and Dicey, Victorian principles: rights protected liberty
interest of people, e.g. freedom of expression, from detention &
rights protecting proprietary interests unless statute expressly takes
away the rights. Constitutional protections:
o Ex1. CML right to expropriation power = compensation.
Unless the legislation is supper clear that it takes away
compensation right, if is does not, it violates constitutional
rights to expropriate without.
o Ex2: habeas corpus: detaining authority has to present the
person before the court to justify detention, esp when the
Document Summary
Class 3: the nuts and bolts and (constitutional?) basis of judicial review. Is there some place in the constitution act 1867: preamble, principle of good government, s. 96: all it really does is give appointing power of judge of superior court to the federal crown. Crevier: the purpose of s. 96 is not just establishing an appointing power, but rather a power of superior court of inherent jurisdiction. Argument was met with criticism: s. 96"s location should be a signal that simply who gets the appointing power, federal crown rather than provincial crown. The court supports that with the preamble, as it says that our constitution similar in principles as the uk constitution. For judicial review and dicey, victorian principles: rights protected liberty interest of people, e. g. freedom of expression, from detention & rights protecting proprietary interests unless statute expressly takes away the rights.
