They are. Canadians Courts have Inherent jurisdiction going back to the formation of the Dominion. They can declare anything invalid or Ultra Vires have done so consistently to both parties.
While this is true to an extent, inherent jurisdiction is not boundless. It does not give our Courts endless jurisdiction to declare something invalid or ultra vires. The Notwithstanding Clause only applies to certain sections of the Charter, so the normal division of powers analysis can be used to strike down laws for jurisdictional issues.
Yes, our Supreme Court has posited having incorporated the unwritten constitution of the UK into ours through the Preamble to the Constitution Act, 1867 means that our Constitution also includes unwritten convention and unwritten constitutional principles, the former are only really enforceable through political means, conventions is not enforced by court and the Supreme Court has never really actually used the unwritten constitutional principles to strike anything down.
I was at a chat with Justice Abella recently where she lamented how she felt the Supreme Court has walked back the unwritten constitutional principles analysis in recent years.
No more than any other country. Our federal government powers are very weak while the provinces are suped up. Our provincial parties are also different from the Federal parties, with their own leadership, machinery, conventions, platforms etc.
The Liberal party of BC couldn't be more different than Trudeau's Liberal party for example.
This combined with the 5 different parties ruling different provinces, it's hard to get one narrative real momentum like in the US.
Not quite true. The Constitution Act, 1867 was drafted to give the federal government more expansive powers than the provincial governments due to observation of how "states' rights" led to the US Civil War. Consequently, whereas jurisdiction over un-enumerated powers under the US Constitution default to the states, the peace, order, and good government provision gives that default jurisdiction to the federal government here. Similarly, the doctrine of paramountcy holds that where valid legislation by the federal and provincial governments conflict, the federal supercedes. Moreover, very important powers like criminal law are centralized at the federal government here.
Also, while you have a point about us not being a two-party system like the US, I think you grossly underestimate the state-to-state variation in the US political parties as well.
That is a temporary measure that expires after 5 years and is still subject to Court review as to not violate the 4 fundamental principles the Supreme Court laid out in the Quebec Succession case.
Not accurate. The 5-year limitation does not prevent a government from re-enacting the same Charter violating law endlessly every 5 years which is precisely what Quebec has done with its language laws. And the Quebec Succession Reference has nothing to do with the Notwithstanding Clause. It is about whether unwritten constitutional conventions or principles prevent Quebec from separating unilaterally and whether there is a requirement for the federal government to negotiate.
And with respect to the Provinces having jurisdiction over health and education, that is precisely why it is so very concerning lately that some of the Neanderthal conservative provincial governments have seemed to have been inspired by our Southern neighbours to enact gross anti-LGBTQ+ "parents' rights" laws lately using the Notwithstanding Clause to prevent them from easy invalidation for violation of the Charter. Yes, the Courts can still review them on the basis of federalism or potentially unwritten constitutional principles, but there is no hard precedent for the latter ever being successful.
www.thecanadianencyclopedia.ca
www.bunkerbranding.com
www.yahoo.com
