A CONSTITUTIONALLY GUARANTEED ROLE FOR THE COURTS

Abstract

Although the BNA Act provides the basis for most Canadian judicial institutions, the author notes that it does not articulate the courts’ governing principles, jurisdiction or relationships to Parliament and provincial legislatures. In particular, it fails to provide any broad acknowledgment of the Rule of Law or the independence of the judiciary as constitutional values. The discussion examines several issues relating to the jurisdiction of the courts that must be addressed in formulating a new constitution, namely 1) explicit constitutional jurisdiction for the Supreme Court of Canada, 2) a Bill of Rights enforceable through the courts, 3) judicial review of administrative actions, 4) amendment of section 96 and limits on delegation to administrative bodies, and 5) specified jurisdiction to settle private disputes between citizens. The author evaluates five proposals relating to the status of the courts in the context of constitutional reform, ranging from a government bill to the recommendations of the Pépin-Robarts Task Force of 1977, and concludes that the proposal of the Canadian Bar Association comes closest to capturing the importance of the Rule of Law and the role of the courts.