Chapter 2 Flashcards
What is a Constitution?
A set of rules that authoritatively establishes both the structure and the fundamental principles of the political regime.
What are Canada’s ‘rules’ or principles of the constitution?
- responsible government
- federalism
- judicial review
- constitutional monarchy
- rule of law
- democracy
Where do we find the rules?
Constitution Act, 1867 (BNA Act) –> Section 96 - feds power to appoint judges.
What was the federal amendments to the Constitutional Act, 1867?
Constitutional Act, 1915 - gave western provinces 24 senators.
British statues and orders in council?
statue of west minister, 1931
Organic Canadian Statues?
parliament of Canada Act
The Constitution Act,, 1982?
Charter of rights and freedoms.
The Constitution Act,, 1982?
Charter of rights and freedoms.
Judicial Decisions?
patriation reference
What is the written Constitution?
- Constitution Act,1867 (BNA Act)
- section 91
- it shall be lawful for advice and consent of the senate and house of commons, to make laws for peace, order, and good government of Canada.
What is the Unwritten Constitution?
The existence of the Prime Minister and the Parliamentary cabinet (no mention in written constitution)
What are constitutional conventions not enforced by the courts?
- positions of prime minister and the cabinet
- formal powers of the governor general
- principle of responsible government.
Canadian constitutional history does not begin in 1867.
What does constitutional order pre-date?
European Settlement to the adverse effect on indigenous interests.
Undeclaration on the rights of indigenous peoples (2007)?
recognized indigenous rights to self-government, land, equality and language, as well as basic human rights.
What was Bill C-15?
Canada signed May 2016, legislation introduced to implement the declaration December 2020.
What is Pre-Confederation in the constitutional act in 1791?
Creates upper and lower Canada, each has legislative and judicial institutions. - creates elected legislative assemblies.
What is Lord Durham’s report?
- response to upper and lower Canada rebellions.
- recommended responsible government and amalgamating upper and lower Canada.
What is the formation of the dominion of Canada?
British parliament passed the British North America Act, 1867. Joining together three colonies.
What are the three colonies?
- federal union
- domestic self-interest
- American Expansionism
changing colonial status
What are the 5 BNA Act in 1867?
- Form of government similar in principle to that of U.K.
- Enable colonial provinces to join a political union
- not highly detailed
- Relies on responsible government
- Division of authority between the federal and provincial government.
What is Bicameral mean?
spilt between two parts, having two branches or chambers.
How did the essential principles of aboriginal law emerged?
out of long process of interaction between indigenous peoples and French, British, and Canadian governments in North American.
What did intersocietal law turned into?
indigenous peoples pushed to the margins, land and treaty rights eroded and political autonomy of indigenous peoples denied.
Territory and indigenous people?
government saw it as treaties granted privileges and indigenous saw it as treaties protected rights.
What was the crowns perspective of the indigenous treaties?
A way to relocate or assimilate indigenous peoples. A method to secure the crown’s precarious legal and factual footing.
What is Sovereignty for indigenous peoples?
self government by section 35 of the CA 1982.
Calder vs. Attorney general of B.C in 1973?
supreme court rules that aboriginal title existed even in the absence of explicit recognition by the crown.
R.V Sparrow 1990?
challenged the federal fishing regulations and ruled that fishing for food was central to Musqueam Nation.
What was the Sparrow Test two restrictions on indigenous and treaty rights?
- state must prove valid purpose
2. the benefit to the public is proportionate to the adverse effect on indigenous interests.
What form of government is similar to the U.K?
- responsible government
- 1841 Durham report
- PM & cabinet accountable to Parliament.
- Need confidence of the majority of the house
- Westminster Model
- Modeled after Great Britain
- The House of Commons, the senate and the Crown.
- Bicameral Parliament Legislature
What are everyone’s favorite sections of the BNA Act, 1867?
91, 92, 93,and 95.
What is the 91 section BNA Act?
POGG Clause - federal powers - Ex: property, trade and commerce.
What is the 92 section BNA Act?
Provincial Powers - Hospitals, municipalities, and civil rights.
What is the 93 section BNA Act?
Provincial Powers over Education.
What is the 95 Section of the BNA Act?
Concurrent Powers over agriculture and immigration.
What were the problems with the BNA Act, 1867?
- focus on government
- very brief
- No amending formula
What was the 5 things added to the constitution act in 1982?
- natural resources
- native people
- equalization payments to provinces
- charter of rights and freedoms
- Amending Formula
What is the living constitution?
- it is not merely a piece of paper
- it is a set of relationships between governments and its people.
Who is Alan Cairns?
he said that the settlement of 1867 was only the beginning. it has been under constant transformation since.
What is the judicial decision of 1949?
JCPC - Division of powers
What is the judicial decision of 1982?
Rights and Freedoms
What was 1867’s unfinished business?
Amending formulas, rights and freedoms and other items such as senate reform.
Judicial committee of the privy council?
until 1949 the court of final appeal was the JCPC. which is the supreme court of the U.K.
interpreting peace, order and good government.
Normal defined federal authority narrowly and provincial authority widely
rulings were controversial.
Who is Dave Fulton and what did they do?
progressive conservative minister of justice; a proposal in 1964 to revise and patriate the constitution by adopting a domestic amending formula, rejected by Quebec. and eventually adopted in 1982.
What was included in the Victoria charter in 1971?
- domestic amending formula
- an entrenched bill of rights
- provincial consultant on federal appointments to the supreme court
- entrenchment of equalization payments rejected by Quebec.
What did Trudeau try to do to the constitution in the 1980’s?
to have British parliament adopt his constitutional package without provincial consent.
What is the Peace, order and good government?
the phrase in the preamble in section 91 of the CA, 1867.
states the scope of the Canadian Parliament’s legislative competence .
suggests framers intent to centralize political power.
What are the five amending formulas?
- general procedure
- unanimous Agreement
- some provinces
- parliament
- one province.
What is some subjects amendments for General procedure?
supreme court reform, establishment of new provinces, provincial representatives in the senate.
what do you need in order for general procedure to become a rule?
parliament + seven provinces with 50% of the population.
What are some subjects of amendment with unanimous Agreement?
changes to executive offices, use of French and English language, composition to the supreme court.
what are the amending formulas for unanimous agreement?
Parliament + all provinces
What are some examples for subject of amendment for some provinces?
Alteration of boundaries between provinces, also French and English use within the province.
what are the amending formulas for some provinces?
Parliament + relevant provinces
what are some examples of Parliaments subject of amendments?
laws amending the executive of the parliament alone, senate of house of commons not falling under section 41-42. needs parliament and relevant provinces.
what are some examples of subject of amendment?
amendments to the constitution of a province government alone. needs just province approve to pass.
