DOCSLIB.ORG

The Notwithstanding Clause: the Charter's Homage To

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Notwithstanding Clause: the Charter's Homage To THE NOTWITHSTANDING CLAUSE: THE CHARTER’S HOMAGE TO PARLIAMENTARY DEMOCRACY Peter H. Russell In this lively and spirited defence of the notwithstanding clause, the noted constitutional authority Peter H. Russell observes that “the Charter has become an object of worship” that has “thrown the notwithstanding clause (which, believe it or not, is part of the Charter) into bad political odour.” He notes: “It was included in the Charter for a very good reason: a belief that there should be a parliamentary check on a fallible judiciary’s decisions on the metes and bounds of our fundamental rights and freedoms.” Russell adds that “it was indeed a ‘deal-maker.’ Without it, Pierre Trudeau would not have had the support of nine premiers for his patriation package, and we would not have had the Charter in 1982.” Prenant vigoureusement la défense de la clause dérogatoire, le réputé spécialiste de droit constitutionnel Peter H. Russell observe que « la Charte est devenue l’objet d’un culte » qui a eu pour effet de discréditer politiquement cette disposition. « On l’a pourtant intégrée à la Charte pour une excellente raison, rappelle-t-il : la nécessité d’une supervision parlementaire des décisions d’une magistrature faillible sur les tenants et aboutissants de nos droits et libertés fondamentaux. » De fait, cette disposition a permis une entente majeure puisque sans elle, « Pierre E. Trudeau n’aurait pas obtenu l’appui de neufs premiers ministres à sa proposition de rapatriement, et la Charte n’aurait pas été créée en 1982 ». t is surely only in Canada, besotted as we are by all tained the notwithstanding clause, the Charter of Rights things constitutional, that something called the “was not worth the paper it is written on.” I “notwithstanding clause” could find a place in the lex- Well, I am here to tell you that Mulroney and his fellow icon of public debate. But it is also only in Canada that a Charter worshippers are wrong, and to plead the case not piece of constitutional furniture known as “the Charter” only for retaining the notwithstanding clause but for occa- (a.k.a. the Canadian Charter of Rights and Freedoms) could sionally having the guts and brains to use it. In doing so, I become a popular icon, deserving of an annual day of cele- know that I face an uphill battle, having just witnessed bration and a virtual blow-out on its 25th birthday. another Conservative prime minister, Stephen Harper, refus- These two peculiar facts about Canada are closely relat- ing to use the notwithstanding clause even though it was ed. The fact that the Charter has become an object of wor- needed to give effect to his legislative objective of restoring ship — a symbol of everything right and good — has the heterosexual marriage monopoly in Canada. thrown the notwithstanding clause (which, believe it or My point is not to defend so-called “traditional mar- not, is part of the Charter) into bad political odour. For riage” but to defend the legitimacy of Parliament debating under this strange sounding clause (even stranger when and deciding how marriage should be defined in Canadian dressed up in its fancy Latin garb as the non obstante clause) law. I believe that it is wrong to deny the equal benefit of our the parliaments of Canada can insulate a piece of legislation laws to Canadians because they are gay or lesbian. Like the from Charter challenge for five whole years. God forbid that many Canadian judges who have examined the matter, I can those whom we have elected should have their way with see no justification in a free and democratic society for lim- our beloved Charter! No wonder Brian Mulroney, sniffing iting the rights of gays and lesbians to enjoy the same bene- the populist breeze, once declared that so long as it con- fits that heterosexual Canadians derive from the state’s POLICY OPTIONS 65 FEBRUARY 2007 Peter H. Russell recognizing of their marriages. And I government against the rights and free- tution that dared to touch Quebec’s lan- was pleased to find that a majority of doms in the Charter. They accepted guage law. The decision turned out to be our elected representatives in the that Canada’s judiciary would be at the a decisive nail in the coffin of the Meech House of Commons were willing to front line of decision-making in giving Lake Accord, and while that may be the support legislation chang- ing the traditional defini- To defend the notwithstanding clause is not to oppose the tion of marriage. But I Charter. After all, it is part of the Charter. It was included in the would have been a lot hap- Charter for a very good reason: a belief that there should be a pier if our parliamentarians parliamentary check on a fallible judiciary’s decisions on the had been as clear as our courts have been about the metes and bounds of our fundamental rights and freedoms. It reasons for doing so, instead was in the great tradition of the Canadian capacity for of simply repeating Prime compromise on things fundamental. It was a compromise Minister Martin’s mantra between the tradition of parliamentary supremacy and the that it was simply a matter of Charter rights. And I prospect of judicial supremacy. And, in 1981, it was indeed a would have a lot more “deal-maker.” Without it, Pierre Trudeau would not have had respect for Prime Minister the support of nine premiers for his patriation package, and we Harper if he had the guts would not have had the Charter in 1982. and — dare I say it? — the brains to be willing to use the notwith- meaning to the abstract ideals of the one good thing Trudeauites can say standing clause to re-test the will of Charter and applying them, with about the notwithstanding clause, it is Parliament in a meaningful way. authority, to the realities of democratic not exactly an advertisement for it. governance. While most of the time the o defend the notwithstanding clause country would live with the decisions et me add to the detractors’ case by T is not to oppose the Charter. After of judges on the requirements of the L citing another quieter but all, it is part of the Charter. It was includ- Charter, a clause was needed for those nonetheless abusive use of the clause ed in the Charter for a very good reason: exceptional occasions when elected leg- by a Quebec government. This was the a belief that there should be a parliamen- islators, federal, provincial or territorial, blanket use of the notwithstanding tary check on a fallible judiciary’s deci- after careful deliberation, conclude that clause by the PQ government to immu- sions on the metes and bounds of our the way judges have construed, or are nize all new Quebec legislation from fundamental rights and freedoms. It was likely to construe, a Charter right or Charter review. The Supreme Court of in the great tradition of the Canadian freedom is an unreasonable constraint Canada upheld this blanket use of the capacity for compromise on things fun- on democratic power or threatens a legislative override in the same deci- damental. It was a compromise between vital interest of society. sion in which it struck down Quebec’s the tradition of parliamentary supremacy sign law. But it was wrong to do so. The and the prospect of judicial supremacy. will admit that the story of the judges clearly had no appreciation of And, in 1981, it was indeed a “deal- I notwithstanding clause’s use and the notwithstanding clause’s role in maker.” Without it, Pierre Trudeau would non-use through the Charter’s first maintaining parliamentary democracy. not have had the support of nine pre- quarter-century has not been an encour- But these abusive uses of the miers for his patriation package, and we aging story for its fans. Indeed, the most Charter’s legislative override do not justi- would not have had the Charter in 1982. famous — or infamous — use of the leg- fy getting rid of it or not using the clause Premiers like Saskatchewan’s Allan islative override seems to bolster the in an appropriate manner. After all, Blakeney, Alberta’s Peter Lougheed and case of its detractors. I refer to Robert judges too can use the Charter abusively. Manitoba’s Sterling Lyon, who insisted Bourassa’s decision in December 1988, Not so long ago, an Ontario Superior on inclusion of the notwithstanding in the heat of the constitutional battle Court judge, Paul Cosgrove, was raked clause in the Charter, were no less civil over the Meech Lake Accord, to invoke over the coals by Ontario’s Court of libertarians than Trudeau. But they had the notwithstanding clause to restore Appeal for making 150 Charter rulings a stronger respect than Trudeau ever Quebec’s French-only sign law, which in a murder trial that were “without evinced for the importance of parlia- had been struck down by the Supreme foundation.” That finding may eventu- mentary democracy to this country’s Court of Canada. The decision was ally lead to Justice Cosgrove’s removal freedom. As civil libertarians they wel- made not through reasoned legislative from the bench. But it will not and comed the opportunity the Charter legislative debate but by Bourassa’s cabi- should not lead to terminating the use of gives citizens to go to court and ask net and caucus listening to mobs in the the Charter by trial judges. Judges, like judges to test the laws and practices of streets howling against any federal insti- legislatures, are fallible.
Load more

Recommended publications
  • From Next Best to World Class: the People and Events That Have
    FROM NEXT BEST TO WORLD CLASS The People and Events That Have Shaped the Canada Deposit Insurance Corporation 1967–2017 C. Ian Kyer FROM NEXT BEST TO WORLD CLASS CDIC—Next Best to World Class.indb 1 02/10/2017 3:08:10 PM Other Historical Books by This Author A Thirty Years’ War: The Failed Public Private Partnership that Spurred the Creation of the Toronto Transit Commission, 1891–1921 (Osgoode Society and Irwin Law, Toronto, 2015) Lawyers, Families, and Businesses: A Social History of a Bay Street Law Firm, Faskens 1863–1963 (Osgoode Society and Irwin Law, Toronto, 2013) Damaging Winds: Rumours That Salieri Murdered Mozart Swirl in the Vienna of Beethoven and Schubert (historical novel published as an ebook through the National Arts Centre and the Canadian Opera Company, 2013) The Fiercest Debate: Cecil Wright, the Benchers, and Legal Education in Ontario, 1923–1957 (Osgoode Society and University of Toronto Press, Toronto, 1987) with Jerome Bickenbach CDIC—Next Best to World Class.indb 2 02/10/2017 3:08:10 PM FROM NEXT BEST TO WORLD CLASS The People and Events That Have Shaped the Canada Deposit Insurance Corporation 1967–2017 C. Ian Kyer CDIC—Next Best to World Class.indb 3 02/10/2017 3:08:10 PM Next Best to World Class: The People and Events That Have Shaped the Canada Deposit Insurance Corporation, 1967–2017 © Canada Deposit Insurance Corporation (CDIC), 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior written permission of the publisher.
    [Show full text]
  • The Politicization of the Scarborough Rapid Transit Line in Post-Suburban Toronto
    THE ‘TOONERVILLE TROLLEY’: THE POLITICIZATION OF THE SCARBOROUGH RAPID TRANSIT LINE IN POST-SUBURBAN TORONTO Peter Voltsinis 1 “The world is watching.”1 A spokesperson for the Province of Ontario’s (the Province) Urban Transportation Development Corporation (UTDC) uttered those poignant words on March 21, 1985, one day before the Toronto Transit Commission’s (TTC) inaugural opening of the Scarborough Rapid Transit (SRT) line.2 One day later, Ontario Deputy Premier Robert Welch gave the signal to the TTC dispatchers to send the line’s first trains into the Scarborough Town Centre Station, proclaiming that it was “a great day for Scarborough and a great day for public transit.”3 For him, the SRT was proof that Ontario can challenge the world.4 This research essay outlines the development of the SRT to carve out an accurate place for the infrastructure project in Toronto’s planning history. I focus on the SRT’s development chronology, from the moment of the Spadina Expressway’s cancellation in 1971 to the opening of the line in 1985. Correctly classifying what the SRT represents in Toronto’s planning history requires a clear vision of how the project emerged. To create that image, I first situate my research within Toronto’s dominant historiographical planning narratives. I then synthesize the processes and phenomena, specifically postmodern planning and post-suburbanization, that generated public transit alternatives to expressway development in Toronto in the 1970s. Building on my synthesis, I present how the SRT fits into that context and analyze the changing landscape of Toronto land-use politics in the 1970s and early-1980s.
    [Show full text]
  • Rethinking Toronto's Middle Landscape: Spaces of Planning, Contestation, and Negotiation Robert Scott Fiedler a Dissertation S
    RETHINKING TORONTO’S MIDDLE LANDSCAPE: SPACES OF PLANNING, CONTESTATION, AND NEGOTIATION ROBERT SCOTT FIEDLER A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN GEOGRAPHY YORK UNIVERSITY TORONTO, ONTARIO May 2017 © Robert Scott Fiedler, 2017 Abstract This dissertation weaves together an examination of the concept and meanings of suburb and suburban, historical geographies of suburbs and suburbanization, and a detailed focus on Scarborough as a suburban space within Toronto in order to better understand postwar suburbanization and suburban change as it played out in a specific metropolitan context and locale. With Canada and the United States now thought to be suburban nations, critical suburban histories and studies of suburban problems are an important contribution to urbanistic discourse and human geographical scholarship. Though suburbanization is a global phenomenon and suburbs have a much longer history, the vast scale and explosive pace of suburban development after the Second World War has a powerful influence on how “suburb” and “suburban” are represented and understood. One powerful socio-spatial imaginary is evident in discourses on planning and politics in Toronto: the city-suburb or urban-suburban divide. An important contribution of this dissertation is to trace out how the city-suburban divide and meanings attached to “city” and “suburb” have been integral to the planning and politics that have shaped and continue to shape Scarborough and Toronto. The research employs an investigative approach influenced by Michel Foucault’s critical and effective histories and Bent Flyvbjerg’s methodological guidelines for phronetic social science.
    [Show full text]
  • 970 Canada Year Book 1980-81 the Senate
    970 Canada Year Book 1980-81 The Hon. Charles Ronald McKay Granger, The Hon. Monique Begin, September 15,1976 September 25, 1967 TheHon. Jean-Jacques Blais, September 15, 1976 The Hon. Bryce Stuart Mackasey, February 9, 1968 The Hon. Francis Fox, September 15, 1976 The Hon. Donald Stovel Macdonald, April 20, The Hon. Anthony Chisholm Abbott, September 1968 15,1976 The Hon. John Can- Munro, April 20, 1968 TheHon. lonaCampagnolo, September 15, 1976 The Hon. Gerard Pelletier, April 20, 1968 The Hon. Joseph-Philippe Guay, November 3, The Hon. Jack Davis, April 26, 1968 1976 The Hon. Horace Andrew (Bud) Olson, July 6, The Hon. John Henry Horner, April 21,1977 1968 The Hon. Norman A, Cafik, September 16, 1977 The Hon. Jean-Eudes Dube, July 6, 1968 The Hon, J. Gilles Lamontagne, January 19, 1978 The Hon. Stanley Ronald Basford, July 6, 1968 The Hon. John M. Reid, November 24, 1978 The Hon. Donald Campbell Jamieson, July 6, 1968 The Hon. Pierre De Bane, November 24, 1978 The Hon. Eric William Kierans, July 6, 1968 The Rt. Hon. Jutes Leger, June 1, 1979 The Rt. Hon. Joe Clark, June 4, 1979 The Hon. Robert Knight Andras, July 6, 1968 The Hon. Walter David Baker, June 4, 1979 The Hon. James Armstrong Richardson, July 6, The Hon. Flora MacDonald, June 4, 1979 1968 The Hon James A. McGrath, June 4, 1979 The Hon. Otto Emil Lang, July 6, 1968 The Hon, Erik H. Nielsen, June 4, 1979 The Hon. Herbert Eser Gray, October 20, 1969 The Hon. Allan Frederick Lawrence, June 4, 1979 The Hon.
    [Show full text]
  • Factum of the Appellant, Joseph Peter Paul Groia
    S.C.C. Court File No.: 37112 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) BETWEEN: JOSEPH PETER PAUL GROIA APPELLANT (Appellant) - and - THE LAW SOCIETY OF UPPER CANADA RESPONDENT (Respondent) -and- ATTORNEY GENERAL OF SASKATCHEWAN and DIRECTOR OF PUBLIC PROSECUTIONS INTERVENERS FACTUM OF THE APPELLANT, JOSEPH PETER PAUL GROIA (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) LERNERS LLP GOWLING WLG (CANADA) LLP Lawyers 2600 - 160 Elgin St 130 Adelaide St. West Box 466 Station D Suite 2400, P.O. Box 95 Ottawa, ON K1P 1C3 Toronto, ON M5H 3P5 Jeff Beedell Earl A. Cherniak, Q.C. Tel: 613.786.0171 Tel: 416.601.2350 Fax: 613.788.3587 Fax: 416.867.2402 E-mail: [email protected] E-mail: [email protected] Counsel for the Appellant, Joseph Peter Paul Ottawa Agent for Counsel for the Appellant, Groia Joseph Peter Paul Groia TO: THE REGISTRAR Supreme Court of Canada 301 Wellington Street Ottawa, ON K1A 0J1 AND TO: LENCZNER SLAGHT ROYCE SMITH DENTONS CANADA LLP GRIFFIN LLP Barristers and Solicitors Barristers 99 Bank Street, Suite 1420 130 Adelaide Street West Ottawa, ON KIP 1H4 Suite 2600 Toronto, ON M5H 3P5 David R. Elliott Corey A. Villeneuve (Law Clerk) J. Thomas Curry Tel: (613) 783-6366 Tel: 416.865-3096 Fax: (613) 783-9690 Fax: 416.865.9010 E-mail: [email protected] E-mail: [email protected] Ottawa Agent to Counsel for the Jaan E. Lilles Respondent, The Law Society of Upper Tel: 416. 865-3552 Canada Fax: 416.
    [Show full text]
  • To Download the PDF File
    INFORMATION TO USERS This manuscript has been reproduced from the microfilm master. UMI films the text directly from the original or copy submitted. Thus, some thesis and dissertation copies are in typewriter face, while others may be from any type of computer printer. The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleedthrough, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send UMI a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. Oversize materials (e.g., maps, drawings, charts) are reproduced by sectioning the original, beginning at the upper left-hand corner and continuing from left to right in equal sections with small overlaps. ProQuest Information and Learning 300 North Zeeb Road, Ann Arbor, Ml 48106-1346 USA 800-521-0600 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. THE POLITICS OF CULTURE IN OTTAWA: THE ORIGINS AND DEVELOPMENT OF A MUNICIPAL CULTURAL POLICY 1939 -1988 By ANN LORETTO BENINGER, BA., B.Ed. A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES AND RESEARCH IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS IN CANADIAN STUDIES CARLETON UNIVERSITY OTTAWA, ONTARIO (January 2005) ©2005 Ann Loretto Beninger Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
    [Show full text]
  • POLITICAL UPDATE 851 the Hon. Jean-Paul Deschatelets, April 22
    POLITICAL UPDATE 851 The Hon. Jean-Paul Deschatelets, April 22, 1963 The Hon. Pierre Juneau, August 29, 1975 The Hon. Hedard Robichaud, April 22, 1963 The Hon. Marcel Lessard, September 26, 1975 The Hon. John Watson MacNaught, April 22, 1963 The Hon. Jack Sydney George Cullen, The Hon. Roger Teillet, April 22, 1963 September 26, 1975 The Hon, Charles Mills Drury, April 22, 1963 The Hon. Leonard Stephen Marchand, The Hon. Maurice Sauve, February 3, 1964 September 15, 1976 The Hon. Yvon Dupuis, February 3, 1964 The Hon. John Roberts, September 15, 1976 The Hon. Edgar John Benson, June 29, 1964 The Hon. Monique Begin, September 15, 1976 The Hon, Leo Alphonse Joseph Cadieux, The Hon. Jean-Jacques Blais, September 15, 1976 February 15, 1965 The Hon. Francis Fox, September 15, 1976 The Hon. Lawrence T. Pennell, July 7, 1965 The Hon. Anthony Chisholm Abbott, The Hon. Jean-Luc Pepin, July 7, 1965 September 15, 1976 The Hon. Alan Aylesworth Macnaughton, The Hon. lona Campagnolo, September 15, 1976 October 25, 1965 The Hon. Joseph-Philippe Guay, November 3, 1976 The Hon. Jean Marchand, December 18, 1965 The Hon. John Henry Horner, April 21, 1977 The Hon. Joseph Julien Jean-Pierre Cote, The Hon. Norman A. Cafik, September 16, 1977 December 18, 1965 The Hon. J. Gilles Lamontagne, January 19, 1978 The Rt. Hon. John Napier Turner, December 18, 1965 The Hon. John M. Reid, November 24, 1978 The Rt. Hon. Pierre Elliott Trudeau, April 4, 1967 The Hon. Pierre De Bane, November 24, 1978 The Hon. Jean Chretien, April 4, 1967 The Rt.
    [Show full text]
  • Transcript of the Inquiry Committee Proceedings
    THE CANADIAN JUDICIAL COUNCIL IN THE MATTER OF AN INQUIRY COMMITTEE CONSTITUTED PURSUANT TO SECTION 63 OF THE JUDGES ACT R.S.C. 1985, C. J-1 AS AMENDED INTO THE CONDUCT OF THE HONOURABLE PAUL COSGROVE OF THE SUPERIOR COURT OF JUSTICE OF ONTARIO ********** HELD BEFORE THE HONOURABLE LANCE S.G. FINCH (CHAIRPERSON), THE HONOURABLE ALLAN H. WACHOWICH THE HONOURABLE J. MICHAEL MACDONALD KIRBY CHOWN and JOHN P. NELLIGAN, Q.C. at Federal Court of Canada 180 Queen Street West, Courtroom No. 7A, Toronto, Ontario on Monday, September 8, 2008 at 9:30 a.m. ********** APPEARANCES: Earl Cherniak, Q.C. Independent Counsel appointed Cynthia Kuehl pursuant to the Complaints Procedure Chris Paliare for The Honourable Paul Cosgrove Richard Stephenson Robert A. Centa George K. Macintosh, Q.C. for the Inquiry Committee (ii) INDEX PAGE Continued Submissions by Mr. Cherniak 1026 ******** 1025 1 Toronto, Ontario 2 --- Upon resuming on Monday, September 8, 2008 3 at 9:30 a.m. 4 THE CHAIR: Ms. Kuehl. 5 MS. KUEHL: Good morning, sir. I 6 believe that everyone now has been handed up a copy 7 of the evidence brief on disk. Each tab and, where 8 there is a sub-tab, each sub-tab is its own PDF 9 document, and it is updated as of the additional 10 materials put in the binders on Friday. 11 Each PDF document, when you open 12 it, is searchable in and of itself, so there is a 13 search engine attached to it, so you should be able 14 to look through, in some cases, 150 pages and 15 actually find the reference you are looking for.
    [Show full text]
  • 1 Foucault, Police and Policing in the Canadian
    FOUCAULT, POLICE AND POLICING IN THE CANADIAN DEMOCRACY By KEITH FORGIE Integrated Studies Project Submitted to Dr. Gloria Filax in partial fulfillment of the requirements for the degree of Master of Arts – Integrated Studies Athabasca, Alberta April, 2009 1 Introduction On June 15, 1215, John, by the Grace of God, King of England signed, with reluctance, Magna Carta, ‘the great charter’. By this document he made significant concessions of royal power and spelled out a number of ‘rights’ his subjects1 might expect. Magna Carta was a far-reaching document but for the purposes of this paper I am isolating four sections: 39. No freeman shall be taken, or imprisoned, or disseized (Middle English: To dispossess unlawfully of real property; oust), or outlawed, or exiled, or in any way harmed--nor will we go upon or send upon him-- save by the lawful judgment of his peers or by the law of the land. 40. To none will we sell, to none deny or delay, right or justice. 42. Henceforth any person, saving fealty to us, may go out of our realm and return to it, safely and securely, by land and by water, except perhaps for a brief period in time of war, for the common good of the realm…. 45. We will not make men justices, constables, sheriffs, or bailiffs unless they are such as know the law of the realm, and are minded to observe it rightly (Magna Carta). In other words, the King was promising, in 1215, that there would be no imprisonment without trial or without the rule of law and, no denial of and no delay in administering justice.
    [Show full text]
  • Factum of the Honourable Justice Paul Cosgrove
    In the matter of: Canadian Judicial Council Inquiry of Justice Paul Cosgrove Reply Factum of Justice Paul Cosgrove (Motion for Declaration of Invalidity of s. 63(1) of Judges Act) 1. Justice Cosgrove supports and adopts the submissions made by the Canadian Superior Court Judges’ Association, and by the Criminal Lawyers’ Association/Canadian Council of Criminal Defence Lawyers. Constitutional Foundation of Judicial Independence in Canada 2. At paragraph 39 of its factum the Independent Counsel submits that ss. 96, 99 and 100 of the Constitution Act, 1867 “provide a code governing the constitutional status of superior court judges”. While these provisions are obviously an important foundation for the constitutional protections enjoyed by the judiciary, it is incorrect to consider them to be anything approaching a complete code. In Valente, the Supreme Court of Canada identified the Canadian Charter of Rights and Freedoms as an important source of a constitutional foundation for judicial independence. In addition, in the PEI Reference, the Supreme Court of Canada was clear: Notwithstanding the presence of s. 11(d) of the Charter, and ss. 96-100 of the Constitution Act, 1867, I am of the view that judicial independence is at root an unwritten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Acts. The existence of that principle, whose origins can be traced to the Act of Settlement of 1701, is recognized and affirmed by the preamble to the Constitution Act, 1867. …. 1 In conclusion, the express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada.
    [Show full text]
  • Debates of the Senate
    DEBATES OF THE SENATE 1st SESSION • 42nd PARLIAMENT • VOLUME 150 • NUMBER 172 OFFICIAL REPORT (HANSARD) Wednesday, December 13, 2017 The Honourable GEORGE J. FUREY, Speaker CONTENTS (Daily index of proceedings appears at back of this issue). Debates Services: D’Arcy McPherson, National Press Building, Room 906, Tel. 613-995-5756 Publications Centre: Kim Laughren, National Press Building, Room 926, Tel. 613-947-0609 Published by the Senate Available on the Internet: http://www.parl.gc.ca 4482 THE SENATE Wednesday, December 13, 2017 The Senate met at 2 p.m., the Speaker in the chair. • (1410) Prayers. CONGRATULATIONS ON APPOINTMENTS Hon. Peter Harder (Government Representative in the BUSINESS OF THE SENATE Senate): Honourable senators, it is my pleasure, as the Government Representative in the Senate, to welcome our newest colleagues to this chamber, Mary Jane McCallum of Manitoba MOTION TO PHOTOGRAPH THE INTRODUCTION OF NEW and Mary Coyle of Nova Scotia. SENATORS ADOPTED Senator McCallum has spent her career serving and healing in The Hon. the Speaker: Honourable senators, there have been First Nations, northern and indigenous communities across consultations and there is agreement to allow a photographer in Manitoba. From dental services, to prenatal health and diabetes the Senate Chamber to photograph the introduction of new programs, to housing and education, Senator McCallum has senators. demonstrated a holistic approach to community well-being that is truly inspirational. Her attention to social determinants of health Is it agreed, honourable senators? will add to our collective understanding of this important issue. In committee and in this chamber, I have no doubt that Hon.
    [Show full text]
  • Public Works Canada Collection: Graphic Material, Acc. No. 1984-082
    Public Works Canada Collection: graphic material, Acc. No. 1984-082 The purpose of this introduction and the following finding aid is to aid researchers using Public Works Canada photographic material in the accession no. 1984-082 held by Library and Archives Canada. This accession consists of material from the Public Relations and Information Services Branch of the Department of Public Works Canada covering the time period c.1965-1981. The extent of the collection is 77,876 colour slides, 2742 black and white photographs, 817 colour photographs, 30,683 negatives and less than 0.1m of accompanying textual records; a total of 112,118 items that are stored in 66 archival containers. Two separate finding aids created for this accession provide material content descriptions: one for 35mm colour slides and one for graphic material (excl. slides) that includes safety, copy and inter negatives, colour and black and white photographs, and some textual records. These descriptions are at times linked, as subjects they describe are found in more than one medium, i.e. photographs, negatives and/or colour slides. Subjects covered in this accession include: Mackenzie, Alaska and Dempster Highway construction; Come By Chance Oil Refining project, Newfoundland; public buildings construction: Place du Portage, Hull, QC, 240 Sparks, Ottawa, ON, and Olympic Stadium, Montreal, QC; Mirabel and Pickering airport projects; Welland and Lachine canals; Montreal and Toronto Mail Processing Plant (MAAP) construction; dredging projects; Central Real Property Inventory; projected buildings for government departments; cities and regions of Canada; architectural details of public buildings in Canada; fine arts project commissions: sculptures, monuments, paintings, tapestries, murals, and Canadian artist inventory with description of medium and techniques used; portraits of senior officials and personnel activities of the Department of Public Works among others.
    [Show full text]