Constitutional Functions

• Author: Rob Walsh
• Pages: 39-45

Page 39

cHaPter fIve

Constitutional Functions

According to the Supreme Court of Canada,¹ the House has three constitutional functions: legislating, deliberating, and holding the Government to account.

Legislating

he legislative powers of the House (and the Senate) are limited by the Constitution Act, 1867 to those matters listed in section 91 of the Act and not on the matters given to the provinces in section
92. he legislative powers listed in these sections are, with only a few exceptions, exclusive. Section 91 also says that the Parliament of Canada (the House of Commons and the Senate) may legislate for the “Peace, Order, and good Government” of Canada on any matter not assigned to the provinces. his has allowed for federal legislation on matters not envisioned in 1867 that later became matters of signiicant national concern, such as radio communications, aeronautics, nuclear energy, and marine (ocean) pollution.

Apart from the exclusive legislative powers, the 1867 Act provided for shared legislative powers over education, agriculture, and immigration. he Act was amended in 1964 to provide shared powers over old age pensions and supplementary beneits. In 1982, the

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THE HOUSE OF COMMONS OF CANADA

Act was further amended to provide shared legislative powers over non-renewable natural resources, forestry, and electrical energy. he environment is not mentioned in the Constitution but is generally accepted as an area of overlapping legislative powers.

As a general rule, Parliament’s legislative powers, outside the list in section 91, apply to matters of national concern while provincial legislative powers, as section 92 indicates, apply to “all Matters of a merely local or private Nature in the Province.”
he legislative powers of the House are also limited by the Constitution Act, 1982, in particular, the Canadian Charter of Rights and Freedoms. Legislation that violates the rights and freedoms guaranteed by the Charter may be struck down by the courts as unconstitutional. hese freedoms include freedom of conscience, religion, thought, belief, expression, the media, peaceful assembly and association, and freedom from unreasonable search and seizure, arbitrary detention, or imprisonment. he protected rights include the right to “life, liberty and security of the person” and other rights related to the criminal justice system. Also, and most importantly, the Charter guarantees the right to equal treatment under the law, including equal protection and beneit of the law without discrimination. However, these rights and freedoms are not absolute but are subject to “such reasonable limits prescribed by law as can be demonstrably justiied in a free and democratic society.”²

he Charter greatly enhanced the judicial review powers of the courts in respect of legislation. Some have argued that the Charter has drawn the courts into making political decisions that are beyond their judicial function. Perhaps in anticipation of this complaint, the “notwithstanding clause” of the Charter allows that Parliament may pass legislation that violates the Charter in respect of the freedoms, legal rights, and equality rights that it guarantees but it must re-enact the legislation every ive years.
he lion’s share...