Suchergebnisse

The Canadian Charter of Rights and Freedoms is Part 1 of the Constitution Act, 1982, which is part of the "Constitution of Canada". By virtue of section 52(1) of the Constitution Act, 1982, the Constitution of Canada is "the supreme law of Canada", and inconsistent laws enacted by the Parliament or a Legislature are of no force or effect. In this article the writer concludes that the Constitution Act, 1982, including PartI (the Charter) and section 52(1) (the supremacy clause), has been validly enacted by the United Kingdom Parliament, and has been effectively entrenched so that its provisions can only be amended by the new amending procedures laid down by Part V of the Constitution Act, 1982.

The federal form of government does not need a dual court system corresponding to the dual legislative and executive authorities. No such system was established at confederation. Yet a dual court system has now developed through the establishment and expansion of federal courts. The jurisdictional problems inherent in a dual court system have been exacerbated by recent decisions of the Supreme Court of Canada, forcing the fragmentation of litigation between the federal and provincial courts, and producing an unnecessary increase in the number of disputes which cannot be resolved in one lawsuit. This has occurred through the failure by the Supreme Court of Canada to accommodate its notions of federalism to the special nature of the administration of justice.

The patriation of the Canadian Constitution and the entrenchment of the Canadian Charter of Rights and Freedoms in 1982 are, in some ways, the story of one man and one party. The constitutional package was drafted by Prime Minister Pierre Trudeau's Liberals and approved by two Houses both controlled by the Liberals. The project was marked by Liberal control pitted against Conservative (and sometimes NDP) resistance, political gamesmanship, and partisan acrimony. But there is at least one chapter in this story where the Liberals lost their grip on the narrative, the parties set aside petty partisanship, and the Canadian public became the author of its own history. For three months in 1980 and 1981, a Special Joint Committee of the House and Senate provided a platform for the voices of hundreds of individuals and organizations that represented an extraordinarily diverse cross-section of Canadian society. For the first time in Canadian history, television shined the spotlight on a committee's work and captured the attention of the nation. The engagement of the broader public, combined with the ideas and passions of the witnesses who spoke to the Committee, softened a process that would otherwise have been partisan, and the end result was a stronger Charter of Rights.

The doctrine of "interjurisdictional immunity" is part of the framework of principles of Canadian federalism aimed at reconciling federal values with the reality that laws enacted by one level of government will inevitably have an impact on matters within the jurisdiction of the other level of government. The law on interjurisdictional immunity has undergone considerable evolution in the last few decades, with the most recent development being the Supreme Court of Canada's decisions in Canadian Western Bank and Lafarge, which were decided in 2007. Historically, the doctrine of interjurisdictional immunity was narrowly applied and the issue was whether a provincial law sterilized, paralyzed or impaired a federal undertaking or subject. This strict test was relaxed by the Supreme Court of Canada in the seminal cases of Bell 1966 and Bell 1988, which held that provincial legislation was inapplicable to federal undertakings whenever it "affected" a vital part of a federal undertaking or core of federal jurisdiction. In Canadian Western Bank and Lafarge, the Supreme Court shifted the balance of federalism in the direction of the provinces by reverting back to a more restrictive approach to interjurisdictional immunity. In the first part of this paper, the authors describe the interjurisdictional immunity doctrine and distinguish it from the doctrines of pith and substance and paramountcy. In the second part, the authors discuss the history and development of interjurisdictional immunity, and in the last part, they provide comments on the wisdom of the Supreme Court's move to a more restrictive application of interjurisdictional immunity in Canadian Western Bank and Lafarge.

This article responds to the argument that judicial review of legislation under the Canadian Charter of Rights and Freedoms is illegitimate because it is undemocratic. The authors show that Charter cases nearly always can be, and often are, followed by new legislation that still accomplishes the same objectives as the legislation that was struck down. The effect of the Charter is rarely to block a legislative objective, but rather to influence the design of implementing legislation. Charter cases cause a public debate in which Charter-protected rights have a more prominent role than they would have if there had been no judicial decision. The process is best regarded as a "dialogue" between courts and legislatures.

Tax law may be viewed as occupying its own universe, even though tax funds the implementation of public policies that animate Canadian society. This article reminds us that tax law must respond to basic rule-of-law norms in spite of overarching and well-meaning policy goals. It adopts reference points featured in recent cases. One is the Charter, which limits penalties that can be imposed on non-compliant taxpayers and tax advisers without adhering to due process safeguards. Another is the impact of international arrangements among countries in a global business environment to guide consistent regulatory responses and to identify and share information. No matter how seemingly efficient or well-grounded, international norms still need to be safely grounded in Parliamentary authority to be enforceable in relation to Canadian taxpayers. All practitioners concerned with tax equity, neutrality, and efficiency should remember that tax law exists within a larger legal system and must be so evaluated; occasionally, it must yield to the legal principles underlying that system.

The purpose of this paper is to make suggestions as to how Aboriginal self-government could be implemented without any amendment of the Constitution of Canada. The authors suggest that elements of the Charlottetown Constitutional Accord could be included in a political accord or accords, which could become the framework for self-government negotiations. The authors discuss the nature of the powers that could be included in a self-government agreement, making extensive reference to the Yukon First Nation Self-Government Agreements. The issues that are examined include personal and territorial jurisdictions, concurrent and exclusive powers, the relationship of Aboriginal laws to federal and provincial (or territorial) laws, the administration of justice and the financing of self-government. The authors recommend that self-government agreements should be constitutionally protected, and they explain how that can be accomplished under the existing Constitution. The applicability of the Charter of Rights is also discussed, and a recommendation is made for the development of Aboriginal constitutions, which could include Aboriginal Charters of Rights.