Chapter 5 (Lecture) Flashcards
Constitution Definition
A legal framework that establishes how power and authority within a country is exercised
What is a constitution particularly important for?
Nations that have weak democratic traditions.
What does constitutional law look at (#1)?
The principles of the Constitution
What does constitutional law look at (#2)?
The assignment of powers to various institutions
What does constitutional law look at (#3)?
The way the powers are implemented.
What does constitutional law look at (#4)?
The roles of the people who operate within the institutions
When was Canada originally established by and by what?
-Originally established in 1867.
-By an act of the British Parliament.
What is our constitution not contained in?
A single document.
What is our constitution made up of (#1)?
Constitutional documents that establish the structure of government, division of power & rights of individuals
What is our constitution made up of (#2)?
Conventions, or unwritten rules, followed for tradition
What is our constitution made up of (#3)?
Common law, which addresses constitutional disputes
Where did jurisdictional powers originate from?
In 1867 the fathers of confederation pushed for a strong, centralized federal government.
In what part of the constitution was the distribution of power set out in?
Sections 91, 92 and 93 of the Constitution.
What does Section 91 outline?
The powers of the federal government.
What does Section 92 outline?
The powers of the provincial government.
What does Section 93 outline?
Assigns jurisdiction to make laws related to education to the provinces.
Where does residual power rest?
With the federal government
What does “intra vires” mean?
If an action by a legislature is within its jurisdiction it has acted intra vires.
What does “ultra vires” mean?
If it is outside its legal authority or jurisdiction it is ultra vires.
What happens when the courts must decide who has power in areas where federal and provincial governments both have claims to authority?
They use what is called the pith and substance doctrine.
What is an example of a case where the pith and substance doctrine was used?
Re Protection of Children Involved in Prostitution Act (2000)
What happened in the Re Protection of Children Involved in Prostitution Act (2000)?
Two 17-year-old females were apprehended by Calgary Police Service Officers in accordance with the act.
Where were these two 17-year olds taken?
To a protective safe-house where they were confined for two days.
What happened after these two 17-year olds were confined?
They were brought to court so the authorities could show why the confinement had been necessary.
Why was the legality of the act, especially the confinement, challenged?
Because it seemed to fall under criminal law.
What does not have any constitutional status?
Local governments.
What do local governments not having any constitutional status mean?
Municipalities and cities are created by the provinces and can be altered or even abolished at their will (e.g. City of Toronto Act, 1997)
What is the main purpose of the Legislative Branch?
To make law.
What is an example of the Legislative Branch?
Parliament and all of the provincial legislatures.
What is the Executive Branch responsible for?
The management and day-to-day operation of the government.
What is the Executive Branch also responsible for?
Recommending laws for consideration and for implementing laws that are passed.
Who are members of the Executive Branch?
The Prime Minister and the Cabinet
What does the Executive Branch rely on?
A politically neutral civil service.
What does the Judicial Branch act as?
An independent third party to settle disputes and clarify law.
Who cannot interfere with the Judicial Branch?
Other government officials
What happens when a judge is appointed?
They cannot be removed by the government.
What does the independence of the Judicial Branch help to ensure?
The rule of law.
What is the rule of law (#1)?
Government must follow the law.
What is the rule of law (#2)?
No one is exempt from the law
What is the rule of law (#3)?
No action can be taken unless authorized by law
What does the judicial system in the provinces and territories deals with?
Most issues
How many tiers does the judicial system in the provinces and territories have?
Three tiers
What is court tier #1?
Courts of first appearance (E.g. Ontario Court of Justice)
What is court tier #2?
Superior trial courts (E.g. the Superior Court of Justice)
What is court tier #3?
Courts of appeal (E.g. Ontario Court of Appeal)
What is another type of court?
Federal Courts & the Supreme Court of Canada
What is a key feature of Canada’s democratic system?
The principal of legislative assembly
What does the principle of legislative assembly mean?
That ultimate authority to make and unmake law in Canada resides with parliament and the provincial legislatures.
What has the Charter of Rights and Freedoms altered?
The balance of legislative supremacy
What is the written constitution difficult to?
Change
What does any change require?
The approval of the
- House of Commons
- the Senate
- and two-thirds of the provincial legislative assemblies representing 50% of the population in the provinces.
What happens if the amendment only affects the federal parliament?
Then only it needs to approve the change (e.g. changing the retirement age for senators or changing the number of MPs).
What happens if a change only affects one province?
Then the Federal Government and that province only need to agree (e.g. 1998 Newfoundland changed the structure of its education system away from religious dominations and toward a public system).
What did Quebec not sign?
The 1982 constitutional document
In 1984, what did Brian Mulroney promise?
If elected, he would attempt to get Quebec to join our constitutional family
What was Quebec concerned with?
The potential negative effect of the charter on the French language and culture.
What did Quebec demand #1?
Recognition as a distinct society
What did Quebec demand #2?
A greater role in immigration to the province; a role in appointments to SCC
What did Quebec demand #3?
Limitations on the ability of the federal government to spend money in areas of provincial jurisdiction
What did Quebec demand #4?
Veto power over all constitutional changes.
What are the two stages of law-making in Canada?
-Pre-legislative stages
-Legislative stages
In the pre-legislative stage, where can ideas for laws come from?
Many sources, including the government, administrators, the party, interest groups, advisory bodies
In the pre-legislative stage, who are ideas usually reviewed by?
The inner Cabinet
In the pre-legislative stage, once approved by the Inner Cabinet, what does the affected ministry do?
Puts together a presentation for the whole Cabinet outlining possibilities.
In the pre-legislative stage, what usually happens when the affected ministry puts together a presentation for the whole Cabinet outlining possibilities?
The idea is leaked to the public at this time
In the pre-legislative stage, what happens after all of this?
The idea is then sent to government lawyers as well as the Management Board
What happens in the legislative stages?
Three readings, then to Senate if federal
Referendum Definition
A process by which the general population or electorate can voice their opinion on a public-policy question.
Ratified Definition
Officially approved and passed in a formal legal process.
Veto Power Definition
Power to reject all constitutional changes.
Supreme Court of Canada definition
Final Court of appeal for all cases from the provincial and territorial courts and the federal courts.
Federal Courts Definition
- Special courts created by statute to hear cases within specific areas of law
- Often because of the unique expertise required by the justices hearing the cases.
Courts of Appeal Definition
The highest courts in the provinces and territories and have jurisdiction to hear cases from all lower courts.
Superior Trial Courts Definition
- Hear virtually all civil law cases and the most serious of criminal offenses
- are also Courts of Appeal for summary conviction offenses.
Courts of First Appearance Definition
The provincial and territorial courts, which decide very little civil law.
Civil Service Definition
Comprises people hired to perform the various day-to-day functions of government
Unitary State Definition
There is only one national parliament and it has the authority to make law.
Statutes Definition
Laws passed by federal or provincial governments
Common law Definition 1
A system of legal principles based on custom and past legal decisions, also called “judge-made law” or “case law.”
Civil Law Definition 1
The branch of law that governs the relations between individuals, as opposed to criminal law, which governs relations between individuals and the states.
Extinguished Definition
Cancelled
Entrenched Definition
To codify rights so that they can be changed only by constitutional amendment, safeguarding them from political interference.
Patriate Definition
Bring under the authority of the country to which the laws apply.
Civil Law Definition 2
A system of law based on codified or statute law.
Common Law Definition 2
The law that came to Canada from Britain
Common Law Definition 3
The law that is common to all.
