Ch.4, Constitution/Charter

Question 1

How is constitutional law different from other forms of statutory law?

Answer 1

Cannot be changed by the passage of a new law through the House of Commons; it is entrenched in legislation which can only be changed in a very narrow range of contexts

Question 2

Define Bicameral parliament.

Answer 2

Composed of the House of Commons (representation by population) and an appointed Senate (representation by region)

Question 3

Identify the significant additions to Canadian constitutional law.

Answer 3

Gave a formula to be applied in order to make future amendments to Canada’s constitutional structure
Gave legislation to protect Charter rights for Canadian citizenss

Question 4

Define the 7-50 amendment formula.

Answer 4

Dictates that at least 7 provinces (one has to be Ontario or Quebec) must approve the constitutional reform

Question 5

How can provinces opt out of the 7/50 amendment formula?

Answer 5

if one, two, or three cumulative populations of NO MORE THAN 50% of the total populations find the constitutional change unacceptable, they can choose not to apply it to their jurisdictions

Question 6

Define the concepts of intra vires and ultra vires.

Answer 6

-Inside the jurdisction
-Outside the jurisdiction, authority in the hands of federal or provincial government

Question 7

Define the Meech Lake Accord.

Answer 7

Met the conditions Quebec wanted in the Constitution Act designated Quebec as a distinct society, permitted some control over immigration and constitutional amendments veto power (did not go through)

Question 8

Define criticisms of the Meech Lake Accord.

Answer 8

Settled behind closed doors and was not settled on by the general public; Quebec was seen as no more deserving of being a distinct society than any other society, Indigenous individuals had been excluded from the decision making process

Question 9

Define The Charlottetown Accord

Answer 9

Proposed changes to the Senate, the composition of the House of Commons, Indigenous rights and the amending formula (failed because it tried to accomplish too many drastic changes at once)

Question 10

Define the difference between representation by population vs. representation by region.

Answer 10

Representation by population ensures representation based on the number of people within it; representation by region simply ensures the representation of the region equal to any other region

Question 11

Why was the passage of the Charter controversial?

Answer 11

Gave judges the power to determine whether the legislation of either the federal or provincial government offends the core values of the Charter and the nation: things are subject to judicial definition

Question 12

Define the Canadian Bill of Rights.

Answer 12

Passed by John Diefenbaker; protected civil rights. Passed after the Alberta Press Case (when government wanted to censor media).

Question 13

Define parliamentary supremacy.

Answer 13

The idea that no body or person has the legal right to override or set aside the law of Parliament. The Charter challenged this by saying that an appointed judge could do this (but this was controversial because appointed judges were not universal)

Question 14

Define the “Limitations” clause of the Charter.

Answer 14

Limitations in rights must be reasonable and prescribed by law; the limits must be established by a presiding judge to be demonstrably justified in a free and democratic society.

Question 15

Define the proportionality test.

Answer 15

The objective of a limit must be of sufficient importance; the party invoking it must show that the means chosen are reasonable and justified; then there must be proportionality between the effects and measures and the objective identified

Question 16

Define the three principles when deciding criteria for inadmissible evidence.

Answer 16

1: the nature and significance of the evidence obtained, the quality of the police conduct that permitted the evidence to be obtained, the consequences for the justice system as a whole if the evidence is excluded

Question 17

Define the not-withstanding clause.

Answer 17

permits governments to opt out of Charter provisions by stating that a specific piece of legislation will operate “notwithstanding”

Question 18

Define Part I of the Constitution Act.

Answer 18

Limits the power of government^ not the private lives of people

Question 19

Define Part II of the Constitution Act.

Answer 19

Guarantees existing rights of Indigenous peoples in Canada
Indigenous rights are collective rights: flow from original occupation of the land that is now Canada
refers to the right to independence through self-determination regarding self-governance, land resources, and culture

Question 20

Why was the Bill of Rights criticized?

Answer 20

-the Bill did not have authority over provincial legislation. -Neither was the Bill entrenched in the Constitution, so it could not supersede existing laws.
-Many judges regarded it as a mere interpretive aid.

Question 21

Define the criteria of the Oakes Test.

Answer 21

(1) Means but be reasonable and proportional: empirical evidence of a social problem that is being addressed, and the override must actually address it (has to actually do something about it)
(2) Minimal Impairment Requirement: The means should impair as little as possible of the right/freedom in question (may strike out overly broad statutes)
(3) Proportionality between the effects of the measure and the objective which has been identified