Windsor Castle is Made of Mud: The Supreme Court's Approach to Federal Court Jurisdiction
8 Pages Posted: 9 Jul 2022
Date Written: June 15, 2022
This is a conference paper prepared for the Federal Courts' 50th Anniversary Conference, June 27-29, 2022. It critiques the Supreme Court's decision in Windsor, which held that the Federal Court requires an explicit statutory grant in order to hear and decide a case. In obiter, the Court also suggested that the Federal Court--like an ordinary administrative decision-maker--may not have the power to issue constitutional declarations of invalidity.
The paper suggests that this decision is inconsistent with the Supreme Court's own approach to the interpretation of statutes, and the Federal Court's status as a court of law, created for the better administration of the laws of Canada under the Constitution. The consequences of this interpretation are arguably odd: (1) the Supreme Court has constitutionalized itself, and yet the Federal Courts' Act was narrowly construed by the Supreme Court. But both courts are statutory courts; (2) the Federal Court may be on the same footing as an administrative decision-maker, in that both do not have the power to render laws invalid as against the world.
Keywords: statutory interpretation, constitutional law, courts
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