Constitutions & The Constitution of Canada Flashcards
CONSTITUTIONS
The foundational charter and supreme laws that form the basis of a legal system and political society
DICKOVICK
Constitutions symbolize the social contracts that societies make to ‘constitute’ themselves
Confer authority to political actors in exchange for the establishment of order and the rule of law
KEY FUNCTINS OF CONSTITUTIONS:
- Express the founding principles & shared values
- Establish the political system
- Establish fundamental laws of society
- Confer power to particular actors and/or institutions
- Limit the exercise of government power
- Outline the basic rights and obligations of citizens
- Highlight a particular history
- Contain aspirations
CONSTITUTIONS & THE DIFFUSION OF POWERS
Most constitutions diffuse authority of the state through:
i) division of powers
ii) systems of checks and balances
Authority may be diffused horizontally or vertically
HORIZONTAL
Authority is spread across different branches at the same level
(e.g. executive, legislative, and judicial branches)
VERTICAL
Authority is shared between different levels of government
(e.g., federal and provincial)
SEPERATION OF POWER
Division of governmental powers among three branches
(executive, legislative, and judicial branches)
FEDERALISM
A political system with multiple levels of government, each with a degree of autonomy with specified jurisdiction
UNITARISM
No subnational governments possessing delegated authority
THE CANADIAN BILL OF RIGHTS, 1960
A federal statute aimed at protecting individual rights
pre-charter
CONSITUTIONAL DESIGN
Refers to the specific features and characteristics of constitutions.
CONSITUTIONAL DESIGN: LENGTH
Constitutions can be short or long, affecting their complexity and detail.
CONSITUTIONAL DESIGN: WRITTEN/UNWRITTEN
Written/Codified: Constitutions that are formally documented (Civil Law)
Unwritten/Uncodified: Constitutions that rely on statutes, conventions, and judicial decisions without a single formal document (Common Law)
CONSITUTIONAL DESIGN: AMENDEMENT PROCESS
Constitutions are typically designed to be difficult to change, requiring specific procedures to amend
CONSITUTIONAL DESIGN: JUDICIAL REVIEW
Many constitutions provide for judicial review, allowing courts to interpret and enforce constitutional provisions.
CONSITUTIONAL DESIGN: OMISSION OF POLITICAL STRUCTURES
Some constitutions may omit details about important political structures and legal processes, leaving room for interpretation and flexibility
ROYAL PROCLAMATION, 1764
Transferred French territory to the UK
BRITISH NORTH AMERICAN ACT, 1867
Created the ‘Dominion of Canada’
STATUE OF WESTMINSTER, 1931
Gave Canada legislative independence from the UK
CONSTITUTION ACT, 1982
- Patriated the Constitution
- Includes judicial review
- Includes amending formulas (sections 38, 41, 43)
Includes the Canadian Charter of Rights and Freedoms
7/50 FORMULA
Requires approval from 7 provinces representing at least 50% of the population
SECTION 91:
Outlines federal powers and jurisdiction
Section 91 (27): gives federal government exclusive power to legislate on criminal law
SECTION 92:
Outlines provincial powers/jurisdiction
SECTION 36 (2)
Sets out equalization payments between provinces
Canada (Attorney General) V. PHS Community Services Society
- Approval of legal injection sites
- Constitutional/administrative law, natural law, legal realism, legal positivism
R. v. Drybones (1970)
Involved Canadian Bill of Rights
A landmark Supreme Court case addressing Indigenous rights
Nullified the law that involved Indigenious will be arrested for being drunk off their reserves
(Federalism)
ASYMMETRICAL DECENTRALIZATION
A form of governance where different regions/groups within a state have varying degrees of autonomy and power
(e.g. provinces have more jurisdiction than territories)
SECTION 1
- The limitations clause
- Allows reasonable limits on rights and freedoms
i) Sufficient importance
ii) Proportionality
Saskatchewan v. Whatcott (2013)
Hate Speech, constitutional Law
SECTION 2
sets out fundamental freedoms of Canadians
SECTION 3, 5, 6
sets out basic democratic rights of Canadians
SECTIONS 7-14
sets out legal rights of Canadians
SECTION 15
sets out equality rights of Canadians
SECTIONS 16-23
concerns minority-language rights
SECTION 24
power of the courts to exclude certain evidence
SECTIONS 25-34
relate to the application of the Charter
SECTION 32
Applies to federal and provincial governments
SECTION 33
Notwithstanding Clause
Allows governments to temporarily override certain Charter rights for up to five years
R. v. Morgentaler, 1988
Abortion rights
QUEBEC’S REJECTION OF THE CONSITUTION ACT, 1982
Rejection: Quebec never approved the Constitution Act, 1982
MEECH LAKE ACCORD, 1987
Attempt to persuade Quebec to sign
CHARLOTTETOWN ACCORD, 1992
Further attempt at constitutional reform, which ultimately failed
SECTION 33 (3)
limits the clause to five years
SECTION 41
identifies certain parts of the Constitution that require a more stringent amendment process
SECTION 38
establishes the general procedure for amending the Constitution
SECTION 43
provides a role for the federal Parliament regarding changes to the Constitution of Canada even if the changes affect only one province
