canada's constitution and charter Flashcards

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1
Q

doctrine of precedent

A
  • lower courts must apply decisions of higher courts in same jurisdiction (binding)
  • unless can distinguish case from previous decision based of different facts - argue that it doesn’t apply
  • all courts bound to decisions of SCC (except SCC)
  • decisions of higher courts in other jurisdictions are persuasive but not binding
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2
Q

constitution act 1982

A
  • supreme law of canada
  • precedence over any other law or decision
  • number of acts
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3
Q

part 1 of constitution: charter of rights and freedom related to environment

A
  • s7: life, liberty, security of person - health in eyes of court
  • s33: not withstanding clause: governments choose not to invoke, allows escape from charter
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4
Q

to whom does constitution act 1982 apply?

A
  • protects citizens rights, defending rights from government
  • if a corporation has violated, cant do anything directly - must find policy that enables corporation to do things
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5
Q

other parts of constitution

A
  • s35: rights of indigenous people
  • s38: amending constitution - federal gov + 2/3 of provinces who have at least 50% of population
    s52: primacy of constitution
    part VII: constitution includes acts referred to in attached schedule
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6
Q

constitution act 1867

A
  • division of powers
  • parliament or provincial
  • peace order and good government: emergency or issue of national concern
  • pollution and environment: might need courts to decide, courts say it shouldnt just fall to one level of gov
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7
Q

concurrent jurisdiction

A
  • provincial and federal law over same matter
  • intra vires = concurrent
  • if both can be complied without violating the other - no problem, both are valid
  • if cant comply with both: paramountcy principle (fed gov wins)
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8
Q

why do appeal court decisions (like SCC) include dissenting opinions

A
  • dissenting opinion: disagreement with majority
  • might have case come along later and may want to draw on dissenting opinion
    justice system recognizes possibility of disagreement - not just 1 answer
  • answer may change in future
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9
Q

salmon farming - provincial regulations?

A
  • happens within province
  • localized ecosystems they would understand better
  • agriculture is mostly provincial, but somewhat shared
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10
Q

salmon farming - federal regulations?

A
  • would be consistent across provinces

- federal government has control over fisheries

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11
Q

salmon farming - why does it matter if its prov or fed?

A
  • people concerned about impact
  • province as lax as possible because of job creation
  • environmentalists argue it should be federal
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12
Q

morton v BC issue, facts, context

A
  • issue: are BC laws regarding salmon ultra vires
  • facts: salmon farms operating in coastal waters, regulated by province
  • context: salmon farms properly regulated?
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13
Q

applicant: morton

A
  • went to ecojustice with constitutional argument
  • pith and substance: province managing a federal ocean fishery
  • federal government is abdicating its responsibility
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14
Q

provinces argument (morton v BC)

A
  • salmon farming is farming in water, not fishing

- if it is a fishery, then its in a private fishery, outside of federal jurisdiction

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15
Q

BC supreme court: morton wins

A
  • SCC determined its a fishery
  • hinkson J: farmed fish are part of fishery or are a fishery - fall under fed jurisdiction
  • legislation interferes with core of regulation of fisheries
  • feds given a year to develop laws on salmon farming
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16
Q

why didnt BC appeal decision

A
  • not because they thought they would lose

- because of media - raised public interest about salmon farming

17
Q

implications of morton v BC for other provinces

A
  • regulatory inconsistency across country
18
Q

another possible outcome for morton v BC

A
  • prov does have control but must regulate better
19
Q

why did morton bring case forward

A
  • concerned about impact of salmon farming
20
Q

old man river society (omrs) v canada - la forest

A
  • one of first cases to recognize environment as topic in court
  • protection of environment is a major challenge
  • both feds and provs should have jurisdiction
  • too complex to leave to 1 level of government
21
Q

omrs v canada facts

A
  • alberta wants dam, omrs doesnt
  • feds gave permission (navigable waters act); hands off, its a provincial issue
  • omrs took feds to court
  • omrs wants to quash approval under navigable waters act and force government to follow its own EA orders
22
Q

omrs v canada court

A
  • initial trial decision: no
  • friends appealed, court was unanimously in favour of friends
  • feds appealed to SCC, many provinces and groups got involved so court took case even though dam was almost built
  • SCC decided that feds must conduct EA on dam on aspect of fed responsibility
23
Q

la forest’s comeback

A
  • previous case argued that it should be a shared responsibility but most judges didnt agree
  • in this case they did agree, set precedent
  • environment too big and complex to be assigned to 1 level
  • EA must have a meaningful role in decision making
24
Q

trans mountain pipeline expansion battle: facts

A
  • AB wants to pipe bitumen to coast
  • BC doesnt want to increase flow of oil through province
  • BC enacts legislation to regulate pipeline to protect land and water form environmental risk - need permit for bitument ot pass
25
Q

pipeline: BC court of appeal arguments and decision

A
  • is this constitutional? within BC’s power?
  • BC: feds can regulate, but because impacts are focused on BC, we have right to regulate
  • BC court: issue of national importance, laws sya there shouldnt be concurrent jurisdiction, outside of BC’s jurisdiction