Parliamentary Supremacy

Singh v. Canada ( Attorney General ), 1999 CanLII 9359 (FC), [1999] 4 FC 583

[18] The applicants challenge the constitutionality of section 39 of the Canada Evidence Act which vests, in the executive branch of government, an absolute right to determine whether "confidence[s] of the Queen's Privy Council" should be excluded from evidence in a case before a court or administrative tribunal even where the content of such "cabinet documents" would be relevant to the proceedings. The applicants assert that Canada is now a constitutional democracy, that is, the Constitution of Canada is supreme and has displaced the doctrine of Parliamentary supremacy. They rely on Reference re Secession of Quebec , 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217 (the Quebec Secession case) to support this proposition. In that case, the Supreme Court of Canada stated at page 258: "This Court has noted on several occasions that with the adoption of the Charter , the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy." The applicants submit that section 39 is contrary to the largely unwritten fundamental and organizing principles of the Constitution of Canada. The principles relevant to this matter are: the separation of powers, the independence of the judiciary and the rule of law. The applicants argue that, given the supremacy of the Constitution, section 39 should be declared invalid.