Constitution Interpretation And Enforcement

Constitution of Canada Interpretation and Enforcement

The constitution is the supreme law of Canada and almost any law that contradicts or is inconsistent with the constitution is unenforceable. If the federal government has concerns about the constitutionality of a proposed law before it is passed, it can submit a reference case to the Supreme Court of Canada and ask the Court to determine if the proposed law is constitutionally valid. The Supreme Court will issue an advisory opinion. Similarly, a province can submit reference cases to its provincial court of appeal, which are subsequently referred to the Supreme Court. Individual citizens who believe that they have been harmed by an unconstitutional law can also ask the courts to decide if a law is valid or not. The courts serve as the primary interpreters and enforcers of the written constitution, and they have the power to invalidate unconstitutional laws. This is called judicial review.

Judicial review has been controversial in Canada. It is a departure from the British tradition of parliamentary sovereignty, which holds that the parliament should decide whether a law is legitimate or not. Judicial review also contradicts other parts of the democratic system. Canadian federal judges are not elected but appointed, and are almost impossible to remove from office.

Judicial review significantly affects how the Canadian constitution is implemented. For example, courts have been important in determining the division of powers between Canada's central government and its provinces. The Constitution Act of 1867 anticipated that the federal government would exercise the most power. Between 1867 and 1949, the final court for all decisions from Canada was not the Supreme Court of Canada, but a special committee of the English House of Lords called the Judicial Committee of the Privy Council, which convened in London, England. For more than 80 years, the council's rulings limited the powers of the federal government, while expanding powers granted to the provinces. As a consequence, Canada has become extremely decentralized.

Since 1982 the Supreme Court has exercised its power of judicial review in the context of the Canadian Charter of Rights and Freedoms. Many laws and governmental actions have been challenged on the grounds that they treat people unequally or infringe on liberties guaranteed by the charter. For example, laws prohibiting abortion and cigarette advertising have been struck down, while discrimination claims advanced by women, gays and lesbians, and persons with disabilities have been validated by the Supreme Court. (1)

In this Section

• Constitution
• Constitution Origins
• Constitution Major Elements
• Constitution Documents
• Constitution Act of 1867
• Constitution Act of 1982
• Constitution Conventions
• Constitution Interpretation and Enforcement

Resources

Notes and References

1. Encarta Online Encyclopedia

See Also

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This entry was last updated: March 23, 2014