Freedom of Religion
The freedom of religion is one of the fundamental freedoms protected by section 2 of the Canadian Charter of Rights and Freedoms.[1]
What is the legal impact of having this freedom? In other words, what does it allow me to do and what government action does it protect me from?
According to the Supreme Court, the Charter protected freedom means that no one in Canada can be forced by the government to act in a way that is contrary to his or her religious views.[2] For example, the Supreme Court has determined that religious officials cannot be forced to perform same-sex marriages if doing so violates their religious beliefs.[3] In practice, having the freedom of religion means a person is allowed to entertain whatever religious beliefs he or she chooses.[4] Freedom of religion also allows a person to declare his or her religious beliefs “without fear of hindrance or reprisal,” and to worship, practice, and disseminate those beliefs.[5]
The freedom of religion protects only “beliefs, convictions, and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held.”[6] What does the term “religion” mean in this legal context? “Religion,” according to the Supreme Court, “is about freely and deeply held personal convictions … connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment.”[7] It often “involves a particular and comprehensive system of faith and worship” and “the belief in a divine, superhuman or controlling power.”[8]
What religious conduct is legally protected from government interference? A ‘trivial or insubstantial’ effect on a person’s ability to practice his or her religion will not constitute a breech of this freedom.[9] The freedom extends to protect against only non-trivial interference. Additionally, only practices that do not injure others are protected.[10]
Beyond these thresholds, religious beliefs that are ‘sincerely held’ are protected from government infringement.[11] Sincerity can be assessed many ways, for example, by examining the claimant’s demeanour, his or her prior religious experience, and the relationship between prior religious experience and the belief currently held.[12] There is no objective inquiry into whether a belief conforms with established religious practice.[13] The freedom of religion is not contingent on whether a religion is being practiced ‘correctly’.[14]
Are their any limitations on the freedom of religion? While freedom of religion is a fundamental freedom, it is not absolute: this freedom is subject to “reasonable limits” by the government as outlined in section 1of the Charter.[15] For example, the Alberta Government was allowed to impose a universal photo requirement for drivers licences even though this violated the religious freedom of Albertan Hutterites, whose religious beliefs prohibit them from having their photograph taken.[16]
[1] Canadian Charter of Rights and Freedoms, s 2, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[2] R v Big M Drug Mart, [1985] 1 SCR 295 at 337, 18 DLR (4th) 321 [Big M Drug Mart]. [3] Reference Re Same-Sex Marriage, 2004 SCC 79 at para 60, [2004] 3 SCR 698.
[4] Big M Drug Mart, supra note 2 at 336.
[5] Ibid.
[6] Syndicat Northcrest v Amselem, 2004 SCC 47 at para 39, 2004 2 SCR 551 [Amselem].
[7] Ibid.
[8] Ibid.
[9] Ibid at para 58. See R v Jones, [1986] 2 SCR 284 at 313–14, 31 DLR (4th) 569.
[10] Ibid.
[11] Ibid at 42; See also Jose Woehrling, “L’obligation d’Accommodement Raisonnabe et L’adaptation de la Societe a la Diversite Religieuse” (1998) 43:2 McGill LJ 325.
[12] See Re Civil Service Association of Ontario and Anderson et al, 60 DLR (3d) 397 at 399, 9 OR (2d) 341 (HC).
[13] Amselem, supra note 6 at para 43.
[14] Ibid at para 50: “In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining … the content of a subjective understanding of religious requirement, “obligation,” precept, “commandment,” custom or ritual”.
[15] Canadian Charter of Rights and Freedoms, supra note 1, s 1. [16] Hutterian Brethren of Wilson Colony v Alberta, 2009 SCC 37 at para 104, 310 DLR (4th) 193.
Charter Statements
Charter Statements are documents prepared by the Minister of Justice upon the introduction of a new bill. They are a tool designed to reassure the public that the government has considered potential constitutional problems that may arise as a result of its proposed law. A Charter Statement notes the potential constitutional issues that the legislation may present, and how these issues could be justified. However, a Charter Statement itself will not explicitly say if a Charterright would be violated by a provision in the bill that is proposed.
Under section 4.1.1 the Department of Justice Act, it is the responsibility of the Minister of Justice to ensure that bills introduced into Parliament comply with the Charter.[1]Charter Statements are one way of doing this. Therefore, to ensure that the public is aware that the government has taken its responsibility seriously, it has tabled Bill C-51 – An Act to Amend the Criminal Code and Department of Justice Act. This Bill states that Charter Statements will become mandatory for every piece of legislation introduced once it is passed. As stated by the current government, “[r]equiring the introduction of a Charter Statement for every new Government bill represents a new, more open and more transparent way of demonstrating respect for the Charter.”[2]
The practice of identifying a bill’s constitutionality has manifested in different ways before the introduction of Bill C-51. Before the use of Charter Statements, Ministers presenting new bills gave their implicit approval of a new bill’s constitutionality. Academic James Kelly points out that “Charter vetting” has always been a mandatory practice, as “[a] department cannot submit a memorandum to cabinet unless the DOJ [Department of Justice] has assessed the risk of judicial invalidation and must certify its constitutionality.”[3]
An Example of a Charter Statement: Bill C-45
Charter Statements are a separate document that accompanies a bill upon its introduction to the House of Commons. Every Charter Statement begins with an explanatory note, stating the purpose of a Charter Statement, which is the same for each bill. This note makes clear that the statement is not a comprehensive overview of Charter considerations, as bills see a number of amendments from their first reading in the House of Commons to their Royal Assent. It also identifies section 1 of the Charteras a balancing mechanism, noting that even though there may be a violation of the Charter in the proposed legislation, it may be one that can be justified by the government. Further, each CharterStatement makes a point of including that a Statement “isnot a legal opinion on the constitutionality of the Bill.”[4]
Following this explanatory note is a brief explanation of the bill’s purpose, along with an overview of the Charter“engagements” the bill presents. For example, in Bill C-45, the Cannabis Act,potential engagements with the Charterare categorized by different topics the legislation addresses. Some of these include criminal offences created through the Bill, restrictions on promotion/packaging/labeling, and “ticketable offences and administrative monetary penalties”. Regarding criminal offences, the Statement identifies that these provisions could engage section 7 of the Charter, which deals with life, liberty, and security of person. The statement explains what section 7 of theCharter is, and that “[a]ny criminal prohibition that gives rise to the possibility of imprisonment engages the section 7 right[.]”[5]It also provides considerations that support the consistency of the provisions with the Charterthat potentially engage section 7, citing case law and explanation. Therefore, the Charter Statement points out that the criminal offences provisions in Bill C-45 may engage section 7 of the Charter, letting the public know that this is a possibility, not a certainty. In short the government has, as a matter of its accountability to the public, considered this possibility and nonetheless feels confident in tabling the Bill.
[1]James B. Kelly, “Parliament and the Charter of Rights: An Unfinished Constitutional Revolution” Policy Options1 February 2007, online http://policyoptions.irpp.org/magazines/the-charter-25/ parliament-and-the-charter-of-rights-an-unfinished- constitutional-revolution/[Parliament and the Charter of Rights]
[2]Department of Justice Canada, “Cleaning up theCriminal Code, Clarifying and Strengthening Sexual Assault Law, and Respecting the Charter” Government of Canada 07 June 2017, online
[3]Ibid.
[4]Department of Justice, “Bill C-45: An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and Other Acts” Government of Canada29 May 2017, online
Property Rights
Section 1(a) of the 1960 Canadian Bill of Rights (S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III) provides federal statutory recognition of “the right of the individual to … enjoyment of property”, and the right “not to be deprived thereof except by due process of law.” The right to property is also included under the fifth and fourteenth Amendments of the American Bill of Rights. However, the Canadian Charter of Rights and Freedoms does not provide constitutional protection for individual ‘property rights’. At the meetings of the Special Joint Committee on the Constitution and during Parliamentary debate on Bill C-60, Progressive Conservative MPs proposed that a right to “the enjoyment of property” be included under section 7 of the Charter. This amendment was rejected largely due to provincial government concerns, shared by federal New Democratic Party MPs, that entrenching property rights in the Charter of Rights and Freedoms could interfere with environmental, zoning and other land use regulation; public ownership, expropriation and regulation of resource- based and other industries; and with legislative restrictions on foreign ownership of land. In the 1989 decision of Irwin Toy v. Quebec (A.G.) ([1989] 1 S.C.R. 927), the Supreme Court of Canada referred to the intentional exclusion of property rights from the Charter as a basis for finding that economic rights of a “corporate-commercial” nature are not protected under section 7.
Sources:
A. Alvaro, “Why Property Rights Were Excluded from the Canadian Charter of Rights and Freedoms” (1991) 24 Canadian Journal of Political Science 309.
Charter of Rights and Freedoms
The ‘Canadian Charter of Rights and Freedoms’ is Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
Since at least the mid-1950s, many had advocated that Canada should adopt an entrenched charter of rights. Entrenchment means the inclusion, in this example, of a charter of rights as part of the constitution. The significance of entrenchment therefore is that the entrenched charter, as part of the constitution, can only be amended by formal constitutional amendment. The Canadian experience over the years was marked by the enactment of the Canadian Bill of Rights (S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III) in 1960 (applying only to federal law), the Alberta Bill of Rights (R.S.A. 2000, c. A-14) (applying only to provincial law) and a series of anti-discrimination statues, federally and provincially, starting with the Saskatchewan Bill of Rights (Repealed 1979, c. S-24.1, s. 51; now Part I of the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.4) in 1953. Some of these statutes were regarded as quasi-constitutional in nature, suggesting that it would be politically inexpedient to repeal them. But they were not entrenched in the Constitution per se. The first major attempt to entrench a charter of rights was the Victoria formula of 1971 (see Victoria Charter) but it was not finally agreed upon. It was not until 1982 that Canada finally had a charter of rights as part of its Constitution. The Canadian Charter of Rights and Freedoms is organized around the protection of certain categories of rights. These categories are the fundamental freedoms (traditionally freedom of speech, freedom of the press, freedom of religion and freedom of assembly and association), democratic rights, mobility rights, protections afforded those persons in contact with the criminal justice system, egalitarian or equality rights, linguistic rights, language of education rights, Aboriginal rights and multicultural rights.
Under section 32, the Charter is applicable only to the public sector: that is, statutes, regulations, policy,etc. at all levels of government, although there are cases dealing with the issue of what constitutes government.
An entrenched charter may be looked at in several ways. One view is that a charter of rights diminishes the power of our elected representatives in that all legislation enacted is subject to review by our courts to ensure charter compliance. In 1982, to ensure that the notion of parliamentary supremacy would not be endangered, the drafters of the Charter included two provisions to reinforce parliamentary sovereignty or parliamentary supremacy. One measure is section 33 of the Charter, which allows the Parliament of Canada and the legislatures of the provinces to opt out of certain sections as they apply to particular legislation. That is, Parliament or the legislatures may enact legislation that operates notwithstanding its conflict with sections 2 and 7-15 of the Charter. Secondly, section 1 provides that even if a law is in violation of the Charter, it may nonetheless be saved as a reasonable limit, demonstrably justified in a free and democratic society. A law will be found to be such a reasonable limit, generally, if it is a rational, non- disproportionate, minimally intrusive means of achieving a pressing and substantial state objective (see balancing rights).
Entrenchment of a charter of rights not only diminishes the notion of parliamentary sovereignty (in the sense that legislative enactments are now subject to review by the courts to ensure compliance with the Charter), but it also, in effect, transfers authority from elected representatives to the judiciary. While this is not a new phenomenon in that judicial review has been an integral part of our judicial system since Confederation, it has attracted criticism largely because Charter cases often involve such controversial issues as abortion, pornography, hate propaganda, and other politically sensitive matters.
Property and Civil Rights
‘Property and civil rights’ is the constitutional jurisdiction assigned exclusively to the provincial legislatures by s. 92(13) of the Constitution Act, 1867. The phrase was used in pre-Confederation constitutions to refer to the totality of the private law – the law of property, contracts, torts and trusts. This is the sense in which the courts have interpreted the phrase in delineating provincial jurisdiction under s. 92(13). Accordingly, the jurisdiction of the provincial legislature in relation to property and civil rights in the province is sufficiently wide to allow some commentators to refer to it as the “real residuary power” in the Canadian Constitution. Charlottetown Accord
This article was written by a law student for the general public.
Following the failure of the Meech Lake Accord in 1990, a series of deliberations took place on the future of Confederation both within and outside of Quebec. In fact, there were four bodies empanelled to engage in these discussions – a parliamentary and an extra-parliamentary body within Quebec and a parliamentary and an extra-parliamentary body nationally. Specifically, within Quebec, there were the Allaire Committee (see Allaire Report) and the Belanger- Campeau Committee; and nationally, there were the Beaudoin- Edwards Committee and the Spicer Commission. These studies led to various reports including the federal documentShaping Canada’s Future Together. Subsequently, the federal government convened a series of five national conferences to discuss various aspects of this document. This, in turn, led to a federal report entitled A Renewed Canada. All of the foregoing culminated in negotiations among the federal government, the provincial governments (including Quebec in the latter stages of negotiations), the territorial governments and representatives from the Assembly of First Nations, the Native Council of Canada, the Inuit Tapirisat of Canada and the Métis National Council. These negotiations resulted in what is now referred to as the ‘Charlottetown Accord’.
The Accord dealt with a number of constitutional issues. For example, regarding the division of legislative powers (see division of powers), it provided for exclusive provincial jurisdiction over forestry, mining and some other areas. It also required the federal government to conduct negotiations with the provinces in order to “harmonize” policy in such areas as telecommunications, labour development and training, regional development and immigration. The provinces were given exclusive jurisdiction over cultural affairs. The federal government would, however, retain jurisdiction over national cultural institutions such as the Canadian Broadcasting Corporation and the National Film Board.
Two centralizing (see centralization) features in the Constitution are the federal power of reservation and disallowance and the declaratory power in section 92(10)(c). The Accord would have abolished the former and allowed the latter only subject to provincial consent. One important feature of the Accord related to the use of the federal spending power. Because Parliament has far greater taxation authority than the provinces, it also has the greater spending authority. Over the years, this has led to financing arrangements under which the federal government, through transfer payments and other fiscal devices, finances all or part of programs (such as medicare, social services, advanced education, etc.) that otherwise would fall within provincial legislative authority. In doing so, the federal government has typically attached conditions on this financing arrangement. One such example is the prohibition of extra billing by doctors contained in the Canada Health Act (R.S.C. 1985, c. C-6). Therefore, any province that has such a program would also have guarantees of federal compensation, provided the provincial programs conform to national standards.
The Accord also provided for enhancement of Canada’s social union and economic union. Regarding the former, it envisaged a social charter to seek and promote such objectives as health care, welfare, education, environmental protection and collective bargaining. Regarding the latter, it envisaged objectives such as the internal free trade among the provinces with the elimination of barriers to the free flow of goods, services, labour and capital, and other provisions related to employment, standard of living and development (see Agreement on Internal Trade (AIT)).
The Accord addressed the issue of Aboriginal self-government but provided for a hiatus of three years before the concept would be juridically recognized. It also dealt with aboriginal representation in the Parliament of Canada.
The ‘Charlottetown Accord’ also contained the so-called Canada Clause that set out the values that define the nature of the Canadian character. One of those values was the recognition that Quebec is a distinct society within Canada. Other values included egalitarianism, diversity and other qualities of Canadian society. This provision, like the present section 27 of the Canadian Charter of Rights and Freedoms relating to multiculturalism, is an interpretative section, directing the courts to construe the Constitution having regard to the existence of these constitutionally entrenched values.
The Accord also sought to make various institutional changes in the Canadian polity. For example, the Supreme Court of Canada, its composition and its appointment process were to be constitutionally entrenched. The Senate would have been changed in the following ways, reflecting the demands of many that Canada adopt a Triple E Senate – i.e. equal, elected and efficient. Each province would have an equal number of senators, and the senators would be elected either by the legislature of each province, or at large within each province. The Accord reduced the powers of the Senate and, on some matters, required a so-called ‘double majority’; that is, a majority of the senators generally and a majority of francophone senators.
Changes were also proposed for the House of Commons such that following a redistribution, the number of seats in the House would be increased. In addition, any redistribution would require that a province could not have fewer seats than any other province with a smaller population. However, the province of Quebec would never be allotted less than one- quarter of all the seats in the House.The Accord formally institutionalized the federal/provincial/territorial consultative process, allowing for Aboriginal inclusion in the process in appropriate circumstances. It also increased the number of matters in the existing amending formula that require unanimous consent for amendment.
Unlike the Meech Lake Accord, the ratification process here provided for a national referendum. In fact, three provinces had referendum legislation: British Columbia, Alberta and Quebec. As it turned out, British Columbia and Alberta decided to participate in the federal referendum, with the result that two referenda asking the same question were held on the same day, 26 October 1992. The question posed in the referenda was simply as follows: “Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992?”
Nationally, fifty-four percent of the votes cast opposed the Accord. It did, however, receive approval in New Brunswick, Newfoundland, Prince Edward Island, the Northwest Territories and, by the narrowest of margins, Ontario. It would seem that after the failure of the Meech Lake Accord, Canadians again could not reach a national consensus during the Charlottetown debate and referenda.
Privy Council (for Canada)
The Privy Council for Canada is a group of prominent individuals appointed, for life, by the Governor General. The appointments are made, as a matter ofconvention , on the advice of the Prime Minister. The Privy Council is tasked with aiding the reigning monarch (and thus the Governor General) by providing advice on significant issues.[1]
Privy Council – A Brief History
The origins of the English Privy Council date back to that country’s earliest history,[2] but little is known of its structure or procedures before 1540.[3]
In addition to its advisory role to the British Monarch, from 1833 until 1949, the Judicial Committee of the Privy Council served as the highest Court of Appeal for Canada: supreme even to our own Supreme Court.[4] During this period, Canadian constitutional law was largely shaped from London.[5]
The Canadian Privy Council was established by theBritish North America Act, 1867 (later renamed the Constitution Act, 1867).[6] Unlike its counterpart in the United Kingdom, it never functioned as a court. Instead, it was tasked with advising the Monarch, and with passing all orders-in-council / acts of executive power.[7]
Privy Council – The Job
Today, the Privy Council continues its historic role, advising the Governor General on various matters of state, including the use of royal prerogative (e.g. declaring war, assenting to legislation and calling an election).[8] However, advice given by the full council is not binding: the Governor General is, in practice, only obligated to follow the advice of Cabinet (the members of which form the operative branch of the Privy Council).[9]
Despite this obligation – in exceptional circumstances – the Governor General, as head of state, can act unilaterally to protect the Canadian people from “a Prime Minister and ministers who may forget that ‘minister’ means ‘servant’ and may try to make themselves masters.”[10]
After being summoned to the Privy Council by the Governor General, members are required to swear a general oath of allegiance to the reigning Monarch, and an oath of office as a member of the Privy Council.[11] As for perks, they are allowed to affix the initials P.C. after their names and to carry the title “The Honourable.”[12] Additionally, the flag on Parliament Hill is lowered to half-mast upon their death.[13]
Despite the honours granted, this is far from a full-time job. Most of the council’s current members have never met together. The most recent gathering called for the entire Privy Council was in 1982 when they met for lunch to celebrate the Queen signing the proclamation of the Constitution Act, 1982.[14]
Privy Council – Who’s on it?
The Queen’s Privy Council for Canada consists of:
Sitting cabinet ministers Former cabinet ministers The Chief Justice of Canada Former chief justices Former speakers of the House of Commons Former speakers of the Senate Former Governors Generals (Typically) Leaders of the Opposition, and Distinguished individuals (as a mark of honour)[15] Maurice Richard Conrad Black (since removed)[16] Winston Churchill[17]
All federal cabinet ministers, once appointed, must become members of the Privy Council.[18] Although it is technically possible for the whole Council to meet and advise, this almost never happens. It is the current members of federal cabinet that form the Council’s operative body (a.k.a. the “Committee of the Privy Council”),[19] performing the advisory duties of the Council on behalf of the other members.
[1] Canada, “The Queen’s Privy Council for Canada” (19 May 2010), online:
[2] JG Bourinot, How Canada is Governed, 10th ed (Toronto: Copp, Clark Company, 1909) [Bourinot] at 49.
[3] Lord Eustace Percy, The Privy Council Under the Tudors (Oxford: BH Blackwell, 1907) at 12-13, available online:
[4] Supreme Court of Canada, “Creation and Beginnings of the Court” (11 April 2016), online:
[5] Bourinot, supra note 2 at 5, 95.
[6] Ibid at 78-79.
[7] Ibid at 52: an order in council can be defined as “an order passed by the sovereign by and with the advice of the privy council.” For more information, see Queens University Library, “Orders in Council – An Overview” (24 September 2015), online:
[8] Frank Mackinnon, “Prerogative Powers” The Canadian Encyclopedia (2 July 2006), online:
[9] Eugene A Forsey, How Canadians Govern Themselves, 6th ed (Ottawa: Government Publications, 2005) at 34, available online:
[10] Ibid at 26, 40.
[11] Office of the Governor General, “Oaths of Office”, online:
[12] Canada, “Members of the Queen’s Privy Council” (19 February 2016), online:
[13] Tristin Hopper, “The privilege of sworn secrecy: Mulcair joins Privy Council, making him the newest advisor to the Queen” National Post (18 September 2012), online:
[14] Canada, “Privy Council: Interesting Facts” (19 May 2010), online:
[15] Canada, “Privy Council”, supra note 1.
[16] Tristin Hopper, “Conrad Black removed from the Order of Canada and stripped of Privy Council position” National Post (31 January 2014), online:
[17] “Becomes Canadian Privy Councillor” Ottawa Citizen (30 December 1941), online:
[19] Canada, “Privy Council” supra note 1; see also Bourinot, supra note 2 at 83-84.
Freedom of Peaceful Assembly
SECTION 2(C): FREEDOM OF PEACEFUL ASSEMBLY
Section 2(c) of the Charter of Rights and Freedoms guarantees the freedom of “peaceful assembly.”[1] It is one of the fundamental freedoms protected in the Charter. The section protects a person’s right to gather with others and express ideas.[2] The wording of section 2(c) qualifies the freedom, guaranteeing only peaceful assembly. It indicates that breaches of the peace, such as riots, receive no protection.[3]
Although drafted as a separate right, Canadian courts have not focused much attention on section 2(c). Instead, courts treat it as an aspect of a person’s freedom of expression, which is protected under section 2(b). Since people often gather to express themselves, courts have viewed freedom of expression as the more applicable freedom.[4]
As with other Charter freedoms, peaceful assembly has its limits. The freedom is subject to thenotwithstanding “ clause,” which is section 33 of theCharter .[5] The notwithstanding clause lets a government override a decision of a court that allows peaceful assembly.
For example, picture a group that peacefully assembled to protest student dress codes. Then imagine that the Government passed a law prohibiting protests at schools. As such, the assembly is broken up. The protesters go to court and argue that this anti-protest law goes against 2(c) and the freedom of peaceful assembly. The court agrees, and finds the law unconstitutional and of no force. However, because of section 33, even if the court states that the law violates section 2(c) and is unconstitutional, the Government can invoke the notwithstanding clause and have the law stand.
Finally, like other Charter freedoms, the freedom of peaceful assembly is subject to section 1.[6] That section allows a government to justify an action that infringes freedom of peaceful assembly if it passes the Oakes test.
Let us return to our hypothetical dress code protesters at court. However, in this scenario, the court looks at the law and finds that while it violates section 2(c), it is justified under section 1. That is, the Government justifies its actions and the court states that the law passes the requirements in the Oakes test. Because the law passes the Oakes test, the court would decide that even though it violates the freedom of peaceful assembly, the violation is justified.
[1]Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 2(c).
[2] Canadian Heritage, “Section 2 – Fundamental Freedoms” Government of Canada (13 March 2013).
[3] Peter W Hogg, Constitutional Law of Canada, 2012 student ed (Toronto: Carswell, 2012) at 44-2.
[4] CED (West 4th), vol 12, title 30 at § 513.
[5] Supra note 1 at s 33. [6] Ibid at s 1.
Centralization and Decentralization
Federal systems (see Federalism) differ greatly in the constitutional structures and powers of the two levels of government. Those in which the central government has preponderant weight, whether in legislative jurisdiction, financial capacity or administrative activity are described as centralized. Those in which the constituent states have great authority or financial capacity display decentralization. There are so many arrangements in existing federations that sure comparison of the result is difficult.
Canada is normally considered to be one of the more decentralized federations although theConstitution Act, 1867 had elements of centralization. For example, the federal government has the power to disallow provincial legislation (see Reservation and Disallowance), a power actively used in the first decades of our federal history but now totally in disuse, and the power to appoint the members of our Senate, a power that is still exercised by the Prime Minister with resulting injury to the representative authority of our second chamber. The modern use of the federal financial strength through its spending power (see federal spending power) has greatly increased the influence of the federal government in areas of provincial jurisdiction without any formal change to our Constitution. As a result, Canada now displays elements of both ‘centralization and decentralization’, while still being one of the most decentralized systems. Sources:
P.W. Hogg, Constitutional Law of Canada, looseleaf (Toronto: Carswell, 1977). J.R. Hurley, Amending Canada’s Constitution: History, Processes, Problems and Prospects (Ottawa: Privy Council Office, Policy Development and Constitutional Affairs, 1996). R.L. Watts, Comparing Federal Systems, 2d ed. (Kingston: Published for the School of Policy Studies, Queen’s University by McGill-University Press, 1999).
Preamble
The ‘preamble’ usually refers to the words that preface an act of Parliament or the legislatures. Here, we refer to the opening words contained in each of Canada’s constitutional texts. Preambles typically are used to state the general object or purpose of a law (see Dreidger at pages 93-94). They are not intended to have any real force and effect, as do the provisions of a law. Judges occasionally will resort to the preamble to help in understanding the constitutional guarantees that follow the preamble.
The preamble to the Constitution Act, 1867 contains four sentences, the most important declares that “the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom.” The modern Constitution Act, 1982 has a short preamble, which states “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”
Writing in the late nineteenth century, the English legal scholar Albert Venn Dicey wrote that, “if preambles were intended to express the truth,” the 1867 preamble should have declared that it was a constitution similar in principle to that of the United States (page 53). Dicey saw more similarities between the U.S. and Canada – in its federal arrangement, difficulty of amendment, and necessity for judicial review – than between Canada and the United Kingdom. Canadian scholars responded that these were superficial resemblances. Rather, it was in the nature of Parliamentary government that Canada’s constitution was similar in principle to the United Kingdom’s (see Clement at page 335).
Though the preambles likely were not intended to have much significance, they have become increasingly important. The Supreme Court of Canada suggested that the reference in the 1867 Act to “a Constitution similar in principle to that of the United Kingdom” is the foundation for Canada’s implied bill of rights (O.P.S.E.U. v. Ontario, [1987] 1 S.C.R. 2). The same phrase was invoked by the Court to secure independence for provincial court judges from provincial legislatures (see Reference re Remuneration of Judges, [1997] 3 S.C.R. 3). The reference to “the rule of law” in the 1982 preamble, the Court has noted, reflects “an unwritten postulate which forms the very foundation of the Constitution of Canada” (Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721). Though an abstract notion, it “may give rise to substantive legal obligations” that governments are bound to obey as they are other constitutional provisions (Reference re the Secession of Quebec, [1998] 2 S.C.R. 217).
Sources:
W.H.P. Clement, The Law of the Canadian Constitution, 3d ed. (Toronto: Carswell, 1916). A.V. Dicey, Introduction to the Study of the Law of the Constitution (London: MacMillan, 1885). E.A. Dreidger, The Composition of Legislation (Ottawa: The Queen’s Printer, 1957).