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GMGT: 3300 Comm Law Midterm > Constitution of Canada > Flashcards

Constitution of Canada Flashcards

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1
Q

Magna Carta:
who is above the law
what is the trial by
what revolution rights did it advocate
important name

A

no one is above the law
trial is by jury
Woman’s rights
Habis Corpus

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2
Q

What relationship does constitution reflect

A

relationship between law and politics

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3
Q

What is main objective of constitution

A

create institutions of the country that create and administer law

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4
Q

Cheffins Constitution definition (4 points)
Constitution must:

A

1) creation of basic organs and institutions of public authority
2) Define powers possessed by each public institutions and relationship between one another
3) define processes of how law is created, limitations on power exercised by officials in public institutions. Assign and define limit of authority.
4) provide method of change for political leadership and basic of constitutional framework

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5
Q

Laws relationship to constitution (2)

A
  1. make up part of constitution
  2. define the political process
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6
Q

Where to find Canadian Constitution (4)

A

whole series of statutes, legal documents for how power is allocated in Canada. Non written and authoritative sources, conventions (not legally enforced)

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7
Q

How are rules made in the constitution and what are they not defined in

A

consensus among leaders in political/ constitutional system and not defined in authoritative legal documents

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8
Q

Bona Fides

A

Good Faith

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9
Q

Mala Fides

A

Bad Faith

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10
Q

Two things to remember about constitution

A
  1. rules are misleading when examined without reference to historical context
  2. rules are linked with constitution and cannot detach
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11
Q

Two main parts of the constitution of Canada

A

Law and Conventions

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12
Q

Define Constitutionalism

A

legitimate actors in the political system have authority as is vested by law. Any attempt to move beyond this illegal or ultra vires

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13
Q

ultra vires

A

beyond the power and therefore void

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14
Q

Sources of Constitution:
What do Authoritative sources create

A

create constitutional rules which are law as enforceable by the courts

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15
Q

Sources of Constitution:
What do Persuasive sources create and they are also known as

A

create rules of constitution but not part of constitution itself. Courts cannot enforce as not laws

also know as conventions

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16
Q

Sources of Constitution:
Entrenchment

A

Certain provisions of constitution are beyond normal control of either federal parliament/ provincial legislature

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17
Q

If provisions are entrenched, can it be changed? Describe the process and significance

A

provisions of the constitution are regarded as so significant/important they can only be changed by extraordinary process

18
Q

Define De Jure

A

At law

19
Q

Define De Facto

A

in fact

20
Q

Define Patriated

A

amendment process for entrenched parts of the constitution are wholly domestic

21
Q

Define Amendment

A

change or addition to constitution designed to improve legislation

22
Q

Authoritative Sources of the Constitution
3 levels, and what is their job

A

Legislature, Courts and Royal Prerogatives. Main job is to produce law

23
Q

Authoritative Sources of the Constitution
Legislatures: What do they do and what can they be composed into (3)

A

create statutes that are relevant in Canada
broken into UK Parliament, Canadian Parliament, and Provincial Legislature

24
Q

Authoritative Sources of the Constitution
Legislatures - UK Parliament

what do they produce and how is is made up
what are two important statutes

A

produce legislation/statutes of significance in Canada and made up of 18 statutes from British Parliament and 14 orders of council

BNA Act 1867 and Constitutional Act 1982

25
Q

What is the BNA Act of 1867
(2) significant items

A

frame work of constitution, courts and supreme court created. Combined upper+lower canada, NB, NS into one nation called Canada

26
Q

What is Constitutional Act of 1982
What was created
What was added
What type of process

A

Charter or rights, domestic amending process, Added subsection on natural resources

27
Q

Authoritative Sources of the Constitution
Legislatures - Canadian Parliament

What is entrenched (2)
What is not entrenched (2)

A

1871 where statute passed so feds couldn’t destroy province after it is created, Supreme Court of Canada

Election Act - Federal Court and Human Rights code, Canadian Bill of Rights

28
Q

Authoritative Sources of the Constitution
Legislatures - Provincial Legislature

What are provinces provided with in terms of laws/authority and the constitution

A

Provides legislature of each province to make laws of the constitution laws of the province

29
Q

Authoritative Sources of the Constitution
Legislatures - Provincial Legislature

what is required to change offices and constitution of provincial legislature (2)

A

unanimous provincial consent and consent of federal parliament

30
Q

Authoritative Sources of the Constitution - Courts
what is their objective?
What are they to interpret?

A
  • produce constitutional law in accordance with common law
  • interpret constitutional statutes
31
Q

Authoritative Sources of the Constitution - Courts
Prior to 1982 what was their focus
Since 1982 what is their focus

A
  • focused on constitution division of power
  • interpret the charter and once this is done it is only amendable through a formula
32
Q

Authoritative Sources of the Constitution - Royal Prerogatives
what is it? <- relate to crown

A

residue of the legal power residing in the crown and passing through the crown to crown representatives called lieutenant governor

33
Q

Authoritative Sources of the Constitution - Royal Prerogatives - 5 main powers

A

appoint first minister/premiere
dismiss first minister/premiere
dissolve elected assembly
declare war
appoint ambassadors

34
Q

How did Royal Prerogatives get the main powers? Describe the evolution of the Magna Carta

A

William the conqueror became absolute monarch, forced king to surrender power as no longer could raise taxes, lost power but gained money

35
Q

Why are prerogative powers so necessary in the constitution?

A

Gives level of discretion, protect the democracy when the ministers are not acting appropriately

36
Q

What are Persuasive Sources (Conventions)?

A

make rules to influence lawmaker but not enforceable

37
Q

What are conventions (definition) i.e what are they intended for?

Where are conventions contained? Why are they not breached?

A

guide political actors in how they function but not enforced by courts

contained in generally accepted traditions and principles (crystallized norms). Don’t breach due to political consequences

38
Q

What is a fundamental part of the constitution regarding conventions and law

A

some conventions are more important than the constitutional laws

39
Q

What are some other forms of persuasive sources (3)

A

Author writings, parliamentary rules, judicial decisions

40
Q

Restall Paper and Constitution

A

constitution is a mirror reflecting the national soul. The constitution embodies in a profound way, the nations basic political and philosophical orientation commonly referred to as its political culture

GMGT: 3300 Comm Law Midterm (10 decks)

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