CANADA Law and Practice Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
Based on these principles, most executive deci - sions are subject to judicial review. The major exception is employment decisions by public authorities. These are not subject to judicial review, and are governed by the private law of contract. 3. Nature of the Decision 3.1 Challenging Primary Legislation Constitutional challenges to primary legislation can be brought under: • the Canadian Charter of Rights and Freedoms (Canada’s bill of rights); • the federal division of powers in the Constitu - tion Act, 1867; and • the aboriginal and treaty rights under Section 35 of the Constitution Act, 1982. Courts can enforce these constitutional con - straints in challenges to legislation, including in Applications for Judicial Review where executive decisions are required by statute. Canada has a constitutionally entrenched bill of rights, the Canadian Charter of Rights and Free - doms, which was adopted in 1982. It enshrines the following: • fundamental freedoms (conscience and reli - gion, expression, association, assembly); • democratic rights (voting); • mobility rights; • criminal justice rights (eg, the presumption of innocence); • equality rights; and • minority language education rights. These rights are not absolute. Governments may infringe them if those limits are demonstra -
bly justifiable, based on a proportionality test. In addition, governments may shield legislation from constitutional challenge under most Char - ter rights under the notwithstanding clause. Canada is a federal state. The Constitution Act, 1867 establishes two orders of government – the federal government and ten provincial govern - ments – and allocates jurisdiction over policy matters between them. The federal government has jurisdiction over important areas of econom - ic policy, including: • banking; • transportation; • international trade; • competition law; • broadcasting; and • intellectual property. However, the provinces have authority over the following: • property and contract law; • municipalities; • land use; Aboriginal and treaty rights were constitution - alised in 1982 by Section 35 of the Constitu - tion Act, 1982. These include historic treaties, as well as modern treaties that cover Northern Quebec, the Yukon, Nunavut, and parts of Brit - ish Columbia. They also protect indigenous land rights (aboriginal title) and rights to engage in certain activities (eg, resource extraction, such as hunting and fishing). Canada has a large and growing number of indigenous governments that wield authority under public law, and whose • labour relations; • insurance; and • health care.
69
CHAMBERS.COM
Powered by FlippingBook