Preamble to the Constitution Act, 1867


The Preamble to the Constitution Act, 1867 provides:
This has had a significant impact on constitutional jurisprudence concerning the nature of Canadian Confederation and the independence of the Canadian courts.

Judicial independence

Prerogatives of Section 96 courts

Section 96 of the Constitution Act, 1867 states:
In the 1930s, in cases such as Re Adoption Act of Ontario, provincial legislatures were restricted from vesting in administrative tribunals powers ordinarily exercised by judges appointed under s. 96. This was relaxed in the Residential Tenancies Reference to allow for such tribunals to exercise ancillary “judicial” powers, subject to the qualification that the judicial function must not be isolated from the rest of the administrative structure of the legislation. Whether a tribunal could exercise such powers was made subject to a three-step test:
A provincial scheme is only invalid where the adjudicative function is a sole or central function of the tribunal.

Other courts

In 1982, as part of the Constitution Act, 1982, Section 11 of the Canadian Charter of Rights and Freedoms came into effect, which provides that:
In the Reference re Remuneration of Judges, it was held that the right to judicial independence was thus extended to provincial court judges in the following core characteristics:
In addition, there are two dimensions of judicial independence:
The relationship between these two aspects of judicial independence is that an individual judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which he or she presides is not independent of the other branches of government, in what is essential to its function, he or she cannot be said to be an independent tribunal.
With respect to its applicability to protecting the financial security of judges' salaries, the following principles were stated:

Notable cases