Preamble to the Constitution Act, 1867

The Preamble to the Constitution Act, 1867 provides:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united 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:

And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire:

And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared:

And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America:

This has had a significant impact on constitutional jurisprudence concerning the nature of Canadian Confederation and the independence of the Canadian courts.

Explanation in the Remuneration of Judges Reference

Although significant cases had been decided on the general nature of Confederation since the 1930s, it was not until 1997 that the Supreme Court of Canada endeavoured to explain and consolidate its jurisprudence that derives from the Preamble. Lamer C.J. summarized it thus:

• preambles can be used to identify the purpose of a statute, and also as an aid to construing ambiguous statutory language
• the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme
• it speaks of the desire of the founding provinces “to be federally united into One Dominion”, and thus, addresses the structure of the division of powers
• by its reference to “a Constitution similar in Principle to that of the United Kingdom”, the preamble indicates that the legal and institutional structure of constitutional democracy in Canada should be similar to that of the legal regime out of which the Canadian Constitution emerged
• it points to the nature of the legal order that envelops and sustains Canadian society. In Re Manitoba Language Rights that is described as “an actual order of positive laws”, which is embraced by the notion of the rule of law
• one example where the Court has inferred a fundamental constitutional rule which is not found in express terms is the doctrine of full faith and credit, where the courts of one province are under a constitutional obligation to recognize the decisions of the courts of another province (as noted in Hunt v. T&N plc)
• another example where the Court has inferred a basic rule of Canadian constitutional law despite the silence of the constitutional text is the doctrine of paramountcy
• it also provides for the constitutionalization of legislative privileges for Parliament and the provincial legislatures, to ensure that they can perform their functions free from interference by the Crown and the courts
• there is interdependence between democratic governance and freedom of political speech, and only Parliament can legislate any limitation of political expression
• the judicial independence of the courts is guaranteed

Judicial independence

Prerogatives of Section 96 courts

Section 96 of the Constitution Act, 1867 states:

96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

In the 1930s, in cases such as Re Adoption Act of Ontario (where the reasoning of Duff C.J. was subsequently adopted by the Judicial Committee of the Privy Council in Saskatchewan v. John East Iron Works), provincial legislatures were restricted from vesting in administrative tribunals powers ordinarily exercised by judges appointed under s. 96. This was relaxed in the Residential Tenancies Reference to allow for such tribunals to exercise ancillary “judicial” powers, subject to the qualification that the judicial function must not be isolated from the rest of the administrative structure of the legislation. Whether a tribunal could exercise such powers was made subject to a three-step test:

• did the "Superior, District, and County Courts" exercise an identical or analogous power at the time Canada was created in 1867?

• if not, power can be conferred on a provincial tribunal whatever its primary character

• after examining the institutional context, does it becomes apparent that the power is not being exercised as a “judicial power”?

• whether any particular function is "judicial" is not to be determined simply on the basis of procedural trappings
• where the tribunal is faced with a private dispute between parties, and is called upon to adjudicate through the application of a recognized body of rules in a manner consistent with fairness and impartiality, then it is normally acting in a "judicial capacity"
• the judicial task involves questions of "principle", as opposed to "policy"

• what is its setting in the institutional arrangements in which it appears? In that regard, allowable circumstances are those where:

• the powers are merely subsidiary or ancillary to general administrative functions assigned to the tribunal
• the powers may be necessarily incidental to the achievement of a broader policy goal of the legislature

A provincial scheme is only invalid where the adjudicative function is a sole or central function of the tribunal.

Other courts

In 1982, as part of the Constitution Act, 1982, Section 11(d) of the Canadian Charter of Rights and Freedoms came into effect, which provides that:

11. Any person charged with an offence has the right ...

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

In the Reference re Remuneration of Judges, it was held that the right to judicial independence was thus extended to provincial court judges in the following core characteristics:

• security of tenure (ie, judges can only be removed for cause, after an inquiry in which he must be given a full opportunity to be heard)
• financial security (ie, the right to salary of a provincial court judge is established by law, and there is no way in which the Executive can interfere with that right in a manner to affect the independence of the individual judge)
• administrative independence (which is the control by the courts over the administrative decisions that bear directly and immediately on the exercise of the judicial function)

In addition, there are two dimensions of judicial independence:

• the individual independence of a judge, and
• the institutional or collective independence of the court or tribunal of which that judge is a member

The relationship between these two aspects of judicial independence is that an individual judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which he or she presides is not independent of the other branches of government, in what is essential to its function, he or she cannot be said to be an independent tribunal.

With respect to its applicability to protecting the financial security of judges' salaries, the following principles were stated:

• salaries of provincial courts may be varied, but only after undertaking an independent, effective, and objective process by an independent body
• under no circumstances is it permissible for the judiciary — not only collectively through representative organizations, but also as individuals — to engage in negotiations over remuneration with the executive or representatives of the legislature
• any reductions to judicial remuneration, including de facto reductions through the erosion of judicial salaries by inflation, cannot take those salaries below a basic minimum level of remuneration which is required for the office of a judge

Notable cases

• Reference Re Authority to Perform Functions Vested by Adoption Act, The Children of Unmarried Parents Act, The Deserted Wives' and Children's Maintenance Act of Ontario, [1938] SCR 398, 1938 CanLII 2 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
• The Labour Relations Board of Saskatchewan v. John East Iron Works Limited [1948] UKPC 75, [1949] AC 134, [1949] SCR 677 (13 October 1948), P.C. (on appeal from Saskatchewan)
• Re Residential Tenancies Act, 1979, [1981] 1 SCR 714, 1981 CanLII 24 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
• Re Manitoba Language Rights, [1985] 1 SCR 721, 1985 CanLII 33 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
• Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 1990 CanLII 29 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
• Hunt v. T&N plc, [1993] 4 SCR 289, 1993 CanLII 43 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
• MacMillan Bloedel Ltd. v. Simpson, [1996] 2 SCR 1048, 1996 CanLII 165 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII
• Reference re Remuneration of Judges, [1997] 3 SCR 3, 1997 CanLII 317 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII