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VOL. 80 PART 3 MAY 2022
tion. Although it is culturally popular to react against almost all things American,
the Supreme Court of Canada has several times confirmed the importance
of the separation of powers to our constitutional order. For example, in
Operation Dismantle v. The Queen, Justice Wilson considered the separation
of powers to be among the “essential features of our constitution”.6
Likewise, the CJC’s website states that “a fundamental principle is sic
at the heart of the Canadian judicial system is its independence. The ‘separation
of powers’ guarantees Canadians that the legislative, executive and
judicial powers in Canada will be autonomous and independent of each
other.”7 The CJC’s website further states that “the judiciary is represented
by the courts and has the function of resolving conflicts related to laws. It
consists of courts of federal and provincial jurisdiction, and is completely
independent of the legislative and executive powers”.8
Notably, during the time of William the Conqueror and his successors (up
until Magna Carta), the Curia Regis had a chief justiciar who was the first
and greatest officer of the King’s Court. When the King was beyond sea, the
chief justiciar governed the realm like a viceroy. If the separation of powers
is so important, why do we perpetuate a system that allows a judge, even if
only symbolically, to interact with the government in any other manner
than by rendering decisions on the cases that are litigated in open court?
Courts issue decisions that both interpret laws and determine the constitutionality
of laws passed by Parliament and thereby further democratic discourse,
separate and apart from one another.
The Prime Minister has appointed Mary Simon as Governor General and
Chief Justice Wagner has, for now, returned to the role of jurist. But he
remains a deputy governor general (like all justices of the Supreme Court
of Canada), waiting in the wings, if so required. At any time, he might
assume the powers of Administrator again. To the extent our Westminster
system of Parliament currently allows a confluence of judicial and executive
powers, it is time for a constitutional changing of the guard.
ENDNOTES
1. Governor General of Canada, “The Role of the
Administrator”, online: <www.gg.ca/en/resourcecentre/
administrator-government-canada>.
2. 1982 2 SCR 730 at 741.
3. See Gary J Jacobsohn, “The Unanimous Verdict: Politics
and the Jury Trial” (1977) Wash U L Rev 39 at
40.
4. R v Sussex Justices, Ex parte McCarthy, 1924 1 KB
256 at 259, per Lord Hewart CJ.
5. The Honourable Morris J Fish, Report of the Third
Independent Review Authority to the Minister of
National Defence (5 April 2021) at 127–28, online:
<military-justice.ca/wp-content/uploads/2021/
06/Third-Independent-Report-Fish.pdf>.
6. 1985 1 SCR 441 at 491.
7. Canadian Judicial Council, “Judicial Independence”,
online: <cjc-ccm.ca/en/what-we-do/judicial-in
dependence>.
8. Canadian Judicial Council, “The Separation of Powers”,
online: <cjc-ccm.ca/en/resources-centre/
understanding-your-judicial-system/separationpowers>.
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