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Constitution - General. Canada v. Boloh 1(a)
In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal noted that "(p)rovisions in the Constitution cannot be interpreted and applied to amend, modify or nullify other provisions in the Constitution":[54] If sections 7, 9, 12 and 15 of the Charter were given the scope the respondents give them here, subsection 6(1) of the Charter would be paved over: it would become completely redundant. Provisions in the Constitution cannot be interpreted and applied to amend, modify or nullify other provisions in the Constitution: Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585 at para. 24; Adler v. Ontario, 1996 CanLII 148 (SCC), [1996] 3 S.C.R. 609, (1996), 140 D.L.R. (4th) 385; Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15, [2005] 1 S.C.R. 238 at para. 14. Subsection 6(1), a specifically worded right meant to govern this sort of circumstance, applies in this case and is not overborne by other, more broadly worded, general rights. . Reference re Greenhouse Gas Pollution Pricing Act
In Reference re Greenhouse Gas Pollution Pricing Act (SCC, 2021) the Supreme Court of Canada states basics of constitutional federalism in the preamble to a text-massive ruling (over 600 paras ;-):A. Principle of Federalism
[48] Federalism is a foundational principle of the Canadian Constitution. It was a legal response to the underlying political and cultural realities that existed at Confederation, and its objectives are to reconcile diversity with unity, promote democratic participation by reserving meaningful powers to the local or regional level and foster cooperation between Parliament and the provincial legislatures for the common good: Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217 (“Secession Reference”), at para. 43; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 22.
[49] Sections 91 and 92 of the Constitution give expression to the principle of federalism and divide legislative powers between Parliament and the provincial legislatures: Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837 (“2011 Securities Reference”), at para. 54. Under the division of powers, broad powers were conferred on the provinces to ensure diversity, while at the same time reserving to the federal government powers better exercised in relation to the country as a whole to provide for Canada’s unity: Canadian Western Bank, at para. 22. Importantly, the principle of federalism is based on a recognition that within their spheres of jurisdiction, provinces have autonomy to develop their societies, such as through the exercise of the significant provincial power in relation to “Property and Civil Rights” under s. 92(13). Federal power cannot be used in a manner that effectively eviscerates provincial power: Secession Reference, at para. 58; 2011 Securities Reference, at para. 7. A view of federalism that disregards regional autonomy is in fact as problematic as one that underestimates the scope of Parliament’s jurisdiction: R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 82.
[50] As this Court observed in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at para. 124, courts, as impartial arbiters, are charged with resolving jurisdictional disputes over the boundaries of federal and provincial powers on the basis of the principle of federalism. Although early Canadian constitutional decisions by the Judicial Committee of the Privy Council applied a rigid division of federal-provincial powers as watertight compartments, this Court has favoured a flexible view of federalism — what is best described as a modern form of cooperative federalism — that accommodates and encourages intergovernmental cooperation: 2011 Securities Reference, paras. 56-58. That being said, the Court has always maintained that flexibility and cooperation, while important to federalism, cannot override or modify the constitutional division of powers. As the Court remarked in 2011 Securities Reference, “[t]he ‘dominant tide’ of flexible federalism, however strong its pull may be, cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state”: para. 62. It is in light of this conception of federalism that I approach this case. . British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia
In British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020) the Supreme Court of Canada set out the major institutional players in Canadian constitutional law:[65] Canadian constitutional law has long recognized that sovereign power in this country is divided not only between Parliament and the provincial legislatures, but also among the executive, legislative and judicial branches of the state: Fraser v. Public Service Staff Relations Board, 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455, at pp. 469‑70; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, at p. 389; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 33. Although there are limited areas of overlap, the branches play fundamentally distinct roles and have accordingly developed different core competencies: Provincial Judges Reference, at para. 139; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 29.
[66] As this Court underscored in Criminal Lawyers’ Association, at para. 29, “each branch will be unable to fulfill its role if it is unduly interfered with by the others”. Several doctrines work to prevent undue interference, including the secrecy afforded judicial deliberations (MacKeigan v. Hickman, 1989 CanLII 40 (SCC), [1989] 2 S.C.R. 796), and the recognition of the privileges, powers and immunities enjoyed by the Senate, the House of Commons and the legislative assemblies: Constitution Act, 1867, preamble and s. 18; New Brunswick Broadcasting Co.; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687. These doctrines are a corollary to the separation of powers because they help to protect each branch’s ability to perform its constitutionally‑assigned functions.
[67] The executive, too, benefits from a degree of protection against undue interference. Deliberations among ministers of the Crown are protected by the constitutional convention of Cabinet confidentiality. Constitutional conventions do not have direct legal effect: Reference re Resolution to Amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, at pp. 880‑83; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 98. However, as I will explain in greater detail, the common law respects the confidentiality convention and affords the executive public interest immunity over deliberations among ministers of the Crown: see Carey; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at paras. 18‑19 and 60.
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