Tunda v. Canada ( Minister of Citizenship and Immigration )
IMM-980-97
Teitelbaum J.
5/10/99
5 pp.
Exercise of Governor General's power of royal assent by Supreme Court of Canada judges-Consideration of question for certification following order dismissing application for judicial review dated 11/6/99 in matter of immigration-Question as to whether Governor General of Canada and S.C.C. judges acting in stead of Governor General bound by constitutional convention prohibiting them from refusing to give royal assent on own and whether constitutional convention having precedence over Constitution Act, 1867, s. 55 whereby assent subject to provisions of Constitution Act, 1867 and to Her Majesty's instructions or whether committing reviewable error in assenting to legislation incompatible therewith-Criteria applied for certification of questions found in Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4 (F.C.A.): must transcend interests of immediate parties to litigation and contemplate issues of broad significance or general application, but also determinative of appeal-Question certified: pursuant to Constitution Act, 1867, ss. 14 and 55, can Governor General appoint S.C.C. judges to act on his behalf and confer his powers, authorities and functions onto them, including that of royal assent?-Conferral of powers of Governor General on S.C.C. judges, particularly that of royal assent, raising theoretical constitutional question with respect to wording and intention of Constitution Act, 1867, ss. 14 and 55, and Parts VII and VIII of Letters Patent 1947-Question raised by applicant whether legislation given royal assent by S.C.C. judge valid, and what oath must be sworn by judges exercising this function-Matter of broad significance and general importance as S.C.C. judges frequently conferred these powers-Direct impact on present litigation as legislation applied herein given royal assent by Sopinka J.-With increasingly broad legislative function fallen upon S.C.C. since advent of Charter, judicial independence all the more sacred-Request for certification of question bringing to forefront perception that independence of judiciary compromised by judges performing functions of Governor General-Whether real or perceived, effect could be damning for judiciary-Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 14, 55-Letters Patent Constituting the Office of Governor General of Canada, R.S.C., 1985, Appendix II, No. 31, ss. VII, VIII-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Scedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].