Judicial Supremacy in Canada Compared to the United States

In a previous blog post, we discussed how the Supreme Court of Canada entrenched itself as a part of the Canadian constitution, thereby making certain features (especially the jurisdiction of the court) not amendable to change by an act of Parliament. It should be noted that this brought the role of the Supreme Court of Canada in closer alignment with the role of the Supreme Court in the United States under the U.S. Constitution. As a result, Canada took a step away from the system of the United Kingdom, where the prevailing doctrine is parliamentary supremacy, not judicial supremacy. This means that, in the United Kingdom, courts may not invalidate an act of parliament on the grounds that it breaches the constitution.

Of course, even before the Nadon Reference that led to the entrenchment of the Supreme Court, Canada did not practice the same notion of parliamentary supremacy as the United Kingdom. The Supreme Court of Canada already was entitled to invalidate acts of Parliament if they breached the Constitution, including the Charter of Rights and Freedoms, but its jurisdiction was nonetheless thought to be created by an ordinary act of Parliament rather than arising from the constitution.

In recent years, the Supreme Court of the United Kingdom has actually taken a step closer to Canada’s approach. In 2018, the Supreme Court of the United Kingdom held that prohibiting same sex couples from entering into civil partnerships was incompatible with the United Kingdom’s own Human Rights Act. Although this declaration did not nullify the prohibition, Parliament of the United Kingdom deferred to the opinion and amended the legislation. This process was very similar to how the Parliament in Canada submits reference questions to the Supreme Court. The Court’s answers to the reference questions are not binding in themselves – an opinion that an act of parliament is unconstitutional does not immediately render it invalid – but Parliament as a matter of practice will take it seriously and it would be astonishing if ever there would be a showdown between Parliament and the Supreme Court.

Evidently, the above arrangement suggests that the separation between the judiciary and the legislature is not as clear cut in Canada (or the United Kingdom) as they are in the United States. American courts typically decline to take any case appearing to be a political question. This also shows that American courts are better positioned to grant a remedy in cases where the parties are seeking a monetary award, rather than merely a declaration of a legislation’s nullity.

Another interesting discrepancy among the common law countries is the structure of written court decisions. In decisions from the United Kingdom, the views of individual judges are more prominent. But in the United States, courts usually endeavor to unify the opinions of judges and reduce redundant ideas presented individually – ideally by presenting a “per curiam” opinion. The idea is to create a jurisprudence of the court as a body rather than having individual judges present their own views.

In Canada, a litigating party may seek costs and pre-judgment interest from the other party. The losing party pays the winning party for their costs. The court takes into consideration: apportionment of liability, the win/lose status of individual claims and whether sincere efforts to settle out-of-court were made. The quantum of costs is up to the discretion of the judge. Usually, it only partially compensates for the legal fees so even a winning party will pay some part of legal fees out-of-pocket. The result is that arguing over costs is a complex part of almost every lawsuit.

In the United States, generally, litigants pay their own costs, unless there is a contractual term providing otherwise. A judge might make an exception for a frivolous lawsuit.

A person in a striped shirt

Description automatically generated

Welcome to the most influential Canadian law portal website on the Chinese language internet. The above journal article addresses one of the commonly encountered topics in legal practice. It is intended to serve as a reference for the general public and for scholars while living in Canada or engaging in business or research in Canada.

Whether you live in China, Toronto, Vancouver or another city, if you have a need for answers to a Canadian law related question or a need for legal representation or formal legal opinion, please contact Mr. Hsieh Tung-Wen, Barrister and Solicitor, Ontario Canada (WeChat: jianadalvshi).

微信: jianadalvshi

WeChat: jianadalvshi