Intro to the Legal System - The Constitution Flashcards
What are the 3 elements of the Constitution?
- Laws
- Court decisions
- Conventions
What are conventions?
unwritten rules dictating how government is to operate, traditions
What are the 2 main Constitutional Laws in Canada?
- Constitution Act 1867 (Originally named the BNA Act)
- Constitution Act 1982 (The Canadian Charter of Rights and Freedoms)
Besides the 2 Constitution Acts, how many other pieces of Constitutional legislation are there?
nearly 30
What are some key factors of the Constitution Act 1867?
- originally named BNA Act
- created the Dominion of Canada
- divided powers federally and provincially
- divided powers between the legislative, executive and judicial branches
- structured the judicial system
What are some key factors of the Constitution Act 1982?
- ended ties with the British Government
- Charter of Rights and Freedoms
- added an amending formula for constitutional change
- lists Acts having constitutional status
What does the amending formula for constitutional change require?
consent of 2/3 of provinces containing 50% of the population
What are some examples of conventions (unwritten rules) that Canada inherited from the United Kingdom?
- king, queen, monarchy
- governor general and lieutenant governor (and their power to adjourn parliament)
- political parties
- parliamentary supremacy
- rule of law
- royal assent
What is Royal Assent?
When the Governor general formally approves legislature on behalf of the monarchy
The federal system is made up of how many legislative bodies?
11
1 federal, 10 provincial
What section of the Constitution Act 1867 gives the federal government power?
Section 91
What section of the Constitution Act 1867 gives the provincial governments power?
Section 92
What does “ultra vires” mean?
legislation that is outside of jurisdiction
Section 91 (Federal Powers) includes:
- trade and commerce
- banking, currency
- postal service
- criminal law
- federal taxation
- imports/exports
- interprovincial-international transportations
- intellectual property (copyrights, patents)
Section 92 (Provincial Powers) includes:
- municipal institutions
- hospitals
- administration of justice and courts within the province
- property and civil rights
- local works and undertakings
- matters of a local or private nature
What does section 92A give provinces the power over?
jurisdiction for non-renewable natural resources, forestry resources and electrical energy within the province
What does section 93 provide provinces with jurisdiction over?
Education
What does POGG stand for?
peace, order and good government
S.91(29) Is about Federal residual power, what does this mean?
Any new thing that comes up and has not been previously delt with automatically falls under federal control until they decide if they want to pass control onto the provincial government
What are some important things that are not addressed in the Constitution 1867 because they did not yet exist when it was created?
- telecommunications
- aeronautics
- climate change
Section 92(10) explains federal declaratory power, what does this mean?
if something extends beyond the borders of provinces (2 or more) and is for the benefit of all Canadians it falls under federal power (e.g. Trans Canada highway, BC-AB Pipeline, national parks)
What does “pith and substance” mean?
the true essence of a law
(e.g. the pith and substance of the Firearms Act is public safety)
What is PARAMOUNTCY?
when federal and provincial laws are both valid but directly conflict with one another (e.g. Federal law says you must wear masks in public spaces and provincial law directly states it is forbidden to wear masks in public spaces)
If the Paramountcy Doctrine needs to be applied what is the outcome?
If both laws can’t be adhered to, the federal law must be followed
If Federal and Provincial laws merely overlap without there being a true conflict, what is the outcome?
It is only necessary to adhere to the law with the higher standard and you will be in compliance with both laws
(e.g. if provincial law says you can only have 5mg of an additive in a food and federal law says you can only have 10mg of additive in a food, if you comply with the provincial law (stricter law) you are still complying with the federal law)
With delegations rules, can federal or provincial governments abdicate (give up) or directly delegate power to the other?
No
Governments get around this delegation rule by entering agreements to “share” power
Bills only pass as laws if…
they are given Royal Assent
How many readings do proposed bills go through in Provincial Court?
3 (first reading, second reading & third reading)
How many readings do proposed bills go through in Federal Court?
6 (3 in House of Commons, 3 in Senate)
Who gives Royal Assent Provincially?
Lt. Governor
