The Supreme Court and Parliament: Evolving Roles and Relationships

Abstract

This article focuses on the Parliament of Canada, with particular emphasis on its role and functions as these have been articulated by the Supreme Court of Canada through its jurisprudence over the years. It paints a picture of Parliament as a key lawmaking institution in the Canadian legal order, being charged with “the grand inquest of the nation”, that has been characterized by a continual process of change and evolution, including in its relationship with the Supreme Court. From the starting point of inheriting a modified form of parliamentary sovereignty, with certain limits imposed on Parliament’s lawmaking powers, Canada’s legal and political system has matured into a liberal democracy premised on constitutional sovereignty, which is, in some important respects, more similar to the United States than to the United Kingdom. One major feature of the contemporary legal order is the significant constraint imposed upon Parliament’s powers by the Constitution Act, 1982, especially fundamental rights guaranteed by the Charter of Rights and Freedoms. Parliament’s power is also limited by a series of unwritten constitutional principles and ongoing judicial interpretations of constitutional requirements. Despite these developments, Parliament remains a highly active lawmaking institution, enacting more legislation than ever before in a broad array of subject matters, although many new statutes also delegate extensive lawmaking powers directly to the executive. This article engages in a brief historical reflection of three dimensions of Parliament: (i) Parliament as a lawmaking institution; (ii) parliamentary sovereignty; and (iii) parliamentary privileges. It is hoped that each of these dimensions will contribute to painting a more complete picture of Parliament and its relationship with the Supreme Court and offer some insight as to what might be expected in terms of future trends.