Canadian constitutional law

The building of the Supreme Court of Canada, the chief authority on the interpretation of the Constitution of Canada.

Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the Courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.

Reviewable matters

Under the authority of section 52(1) of the Constitution Act, 1982 Courts may review all matters of law. Accordingly, the courts have a broad reaching scope of competence. Constitutional issues come before the court through disputes between parties as well as through reference questions. The Court has the discretion to hear any Constitutional issues as long as there is a sufficient legal component. The US constitutional political questions doctrine was rejected and so a political dimension to the issue does not bar it from Court.

Courts must be careful when considering reference questions. They are required to be careful to only answer questions that are not speculative, of a purely political nature, or unripe. When answering the questions the Court must retain its proper role within the constitutional framework.

Valid parties

A party must have standing (locus standi) bring a constitutional challenge to the Courts. Those who wish to challenge a law can do so in one of several ways. A party who is directly affected by the law that proports to be unconstitional has standing as of right. Likewise, rights holder may challenge any law that will limit any of their rights. Those who are not protected by a right but are nonetheless prosecuted by that law may challenge it as well.

Public interest groups may also gain standing if they satisfy the requirements of the Borowski test. The group must demonstrate that the law raises a serious constitutional issue, the group has a genuine interest in the matter, and that there is no other reasonable and effective manner in which the issue may be brought before the Court.

Judicial review of legislative competence

There are three approaches to a challenging a law on the division of powers. A law may be challenged on its validity, applicability, or operability.

The validity of a law may be challenged where the core subject matter of the law is outside the legislative competence of the government. The analysis begins by determining the pith and substance of the law. This requires examining the purpose of the law as well as the legal and practical effects of the law. The matter identified is then assigned to the most appropriate legislative powers that are enumerated in sections 91 to 195 of the Constitution Act, 1867.

The applicability of a law may be challenged where a valid law will, in certain circumstances, affect a subject matter that is allocated to the other "head of power". In this case the law can be held to be inapplicable to the matters outside of the government's competence through the doctrine of inter-jurisdictional immunity.

The operability of a law may be challenged where the provincial and federal governments have concurrent jurisdiction over certain matters of law and have each enacted legislation that may interfere with one another. If it can be shown that the laws are functionally inoperative then the provincial law will be held to be inoperative under the paramountcy doctrine.

Principles of interpretation

In Reference re Secession of Quebec, the Supreme Court characterized four fundamental and organizing principles of the Constitution (though not exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities.

External links

• Article on the history of standing in Canada