Canadian Constitutional Change

Constitutional Change and Dispute Resolution

• Constitutional amendments require agreement from all 11 levels of government (federal and provincial).
• Public consultation and referendums further complicate the amendment process.
• Political rigidity often hinders compromise and agreement.
• Intergovernmental disputes are typically resolved through negotiation.
• Representatives from various government levels (first ministers, cabinet ministers, bureaucrats) engage in dialogue.
• Canadian constitutional practices evolve informally.
• Courts play a vital role in interpreting the constitution and resolving legal disputes.
• Laws conflicting with the constitution can be declared unconstitutional.
• Courts determine if laws are within (intra vires) or beyond (ultra vires) their delegated authority in federal systems.
• Legal challenges are common, with governments challenging each other's laws over jurisdictions.
• Federal and provincial governments can refer constitutional issues to the Supreme Court for clarification.
• Individuals and businesses can challenge laws or government actions deemed unconstitutional.
• Historically, business entities resisted economic regulations in Canada and the U.S. leading to legal shifts and constitutional amendments.

Judicial Review in Intergovernmental Relations

• Judicial review decisions are based on legal arguments, unlike political negotiations.
• Political motivations still influence litigation decisions but judges must adhere to legal principles.
• Supreme Court rulings are binding and have similar impact as constitutional amendments.
• Decisions are zero-sum (one party wins, the other loses) regarding jurisdiction assignment.
• Legal precedent (stare decisis) limits flexibility and leads to slower legal change.
• Governments strategically pursue legal cases backed by strong legal arguments.
• Winning rulings bolster government positions in negotiations and political influence.
• Governments may pursue cases with weaker legal grounds to appeal to political support.

Evolution of Judicial Review in Canada

• The Judicial Committee of the Privy Council in Britain initially determined constitutional cases (until 1949, favoring provincial powers).
• Canada's Supreme Court became the final authority on constitutional interpretation after 1949.
• Continued judicial interpretation shapes Canada's federal system and clarifies legislative powers.

Judicial Review Explained Simply

• Judicial review is a process where courts assess laws and government actions against the constitution.
• If a law or action violates the constitution, courts deem it invalid.
• Judicial review is vital, as a Constitution deemed difficult to amend is instead clarified, updated and interpreted over time.
• It clarifies legislative jurisdiction (federal vs. provincial).
• Governments, citizens, and businesses can initiate judicial review.
• Governments initiate lawsuits for power gains or to fulfill political obligations.
• Historically, the Judicial Committee of the Privy Council in Britain was the final authority until 1949.
• The Supreme Court of Canada has been the final authority ever since 1949.
• Supreme Court decisions profoundly impact Canada's federal system and significantly alter the balance of governmental power distribution.