Constitution Flashcards
Define law
Philosophical basis for law (3)
Body of rules that can be enforced by courts or other governmental agencies
Natural law = moral principles discovered by natural reason, what God wants
Legal positivism = whatever the ruler says
Legal realism = whatever the courts say/enforce
Define constitutionalism
Idea that powers of gov ought to be limited by the law, if gov actions are unconstitutional than they should be illegal
Define constitutional law
What does a constitution do (4)
Rules governing the use of gov power, creates limitations, is public law
Separates powers, divides powers, establishes civil rights and asserts the principles of a nation
Define rule of law
Criteria for rule of law (8)
Idea that discretion of decision makers should be limited by general laws in advance, law must apply to everyone alike
Prospective Capable of being complied with Accessible Clear Coherent with each other Sufficiently stable When the law grants discretion, discretion must be limited and guided People who make/administer laws must be accountable
Roncarelli v. Duplessis
Roncarelli was Quebec restaurant owner who was using his personal funds to provide bail for Jehovah’s Witnesses who were arrested for promoting their religion
Quebec gov tried to stop this by revoking his liquor license forever
Roncarelli challenged this using the rule of law because Duplessis revoked his liquor license for personal reasons
Manitoba Act 1870
Said that in Manitoba you could use French or English in the house/courts/legislature, this is consistent with Constitution
But Official Language Act of 1890 said English was only official language –> this was challenged and ruled to be unconstitutional
Courts didn’t strike down the invalid English only regulations immediately because it would have caused chaos
British North America Act 1867
Created Dominion of Canada
Vested formal power in the Queen and created Queen’s Privy Council
Britain’s contribution: ‘Dominion’ and provisions to break deadlock between government levels
Empowered Parliament to create SSC
All amendments had to be made by new act of British Parliament
Statute of Westminster 1931
Constitutional amendment 1949
British Act 1981
Eliminated British involvement in Canadian legislature
Eliminated British involvement in Canadian judiciary
Placed entire process of constitutional amendment in Canada, severed all British power
Constitution Act 1982 (5 big changes)
Established 4 legal processes for amending constitution
Some parts of constitution became entrenched (e.g. supremacy clause, s(52))
Set out Charter of Rights and Freedoms
Gave provinces control over natural resources
Indigenous populations given explicit rights
Key constitutional aspects (4)
Federalism
Division of powers
Civil rights
Customs and conventions
Referendum of secession of Quebec
a unilateral secession of Quebec would amount to a radical and extensive constitutional amendment –> goes against idea of federalism outlined in the constitution
Quebec cannot invoke the right to self determination unilaterally, but the other provinces can’t ignore Quebec’s desire to secede if that was the will of the majority in Quebec
Why Canada chose federalism
Diversity of original provinces
Quebec → unique legal code, language and culture
Threat of American aggression
Needed national government for free trade and national transportation
Division of legislative powers
Each level of government is independent from the other and they derive their governing powers from the constitution
Levels of government are equal, but federal gov’s dispensing power gives them some extra influence
Central government has power to deal with national issues, to make laws applicable to all citizens and to represent the units of federation
Courts are designated to settle federal/provincial constitutional disputes
Amending formula to constitution prevents one level from making unilateral changes to the constitution
Levels can’t take over other levels’ powers
Residue of powers not explicitly given to fed is given to provs (constitution was very vague), but judicial interpretation has shifted considerable power over to the procinves
Fed and provs can delegate administration of certain acts to the other
Judicial review
2 step technique
Judiciary has to interpret scope of powers assigned to federal and provincial legislatures under s. 52(1) of constitution (any law inconsistent with constitution is invalid)
Courts have formally adopted a deferential position → when reviewing some legislation to determine which government’s jurisdiction it falls under, they are to give the benefit of the doubt to the legislation → presumption of constitutionality
Characterizing the subject matter of the legislation
Interpreting the power distributing sections of the constitution to determine under which level of government the subject matter fits
R. v. Morgentaler
Issue: whether the Nova Scotia Medical Services Act was controlling the quality of its health care delivery system, or was punishing what it perceives to be a socially undesirable conduct of abortion
NS Medical services act was deemed to be ultra vires/unconstitutional
