Constitutionally Guaranteed Role for the Courts

• NCJ Number: 72786
• Journal: CANADIAN BAR REVIEW Volume: 57 Issue: 4 Dated: (1979) Pages: 669-686
• Author(s): D P Jones
• Date Published: 1979
• Length: 18 pages
• Publication Format: Article
• Language: English
• Country: Canada

Annotation

This paper examines the constitutionally guaranteed role for the Canadian courts under draft proposals for a new constitution in an outline of the courts' past and present roles.

Abstract

Because the British North America Act (B.N.A.) of 1867, Canada's constitution, establishes neither principles nor institutions by which the conuntry is to be governed (other than that the Canadian constitution should be similar in principle to that of the United Kingdom), the move to constitutional reform examines both governing principles and institutions. This paper delineates the principles, such as the Rule of Law, which implies that all governmental actions must be established by law and not administrative fiat or arbitrary personal rule. One of the most obvious reforms is the need to give the Supreme Court of Canada constitutional recognition instead of its present status as a creature of the Federal Parliament. The unstated premise of most of the proposals for entrenching a Bill of Rights, which would effectively remove from any level of government the ability to pass certain types of laws, is the enforceability of these rights in the ordinary courts. Achieving this, however, necessitates limiting the sovereignty of both Parliament and the provincial legislatures. Through the proposed General Administrative Law Jurisdiction as well as Rule of Law principles, the doctrine of the sovereignty of the parliament must be considered. Unfettered, this doctrine could, on both the Federal and provincial levels, abolish the right of a citizen to have recourse to the courts to determine the lawfulness of governmental actions. If the Rule of Law is an important constitutional principle, it should be fully enunciated in the new constitution, and provisions made for courts of constitutionally guaranteed jurisdiction. This requires the framers of the constitution to determine what are inherently judicial matters, and if there is to be any limit on the type of matters which can be delegated to administrative (as opposed to judicial) bodies. The following reform proposals are evaluated: The Task Force on Canadian Unity, the Federal Liberal Government bill, the government of Alberta's position, and the Canadian Bar Association Proposals. Seventy footnotes are appended.