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Courts > Midterm > Flashcards

Midterm Flashcards

1
Q

What is the Canadian judiciary?

A

Hierarchical series of courts that interpret laws

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2
Q

Judicial review

A

Passed laws can be declared unconstitutional by courts

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3
Q

Supreme Court

A

9 members (3 from QC) Judges selected by PM, retire at 75 and hard to remove

Hear appeals from lower courts

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4
Q

Federal Court of Canada

A

Federally created court that hears cases against fed gov

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5
Q

Provincial superior courts

A

Hear appeals from provincial courts and serious criminal + civil cases + divorce, federally appointed and provincially created

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6
Q

Provincial courts

A

Provincially created and appointed, handles civil cases and small criminals. Typically not divorce as it is a federal concern –> superior courts

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7
Q

What does the constitution do?

A

Document comprising laws and conventions

  • Establishes roles of gov branches
  • Divides powers between gov levels
  • Establishes bills of rights
  • Establishes amendment procedures
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8
Q

Unwritten and major written parts of constitution

A

Unwritten = conventions from UK

Written

  • BNA Act / Constitution Act 1867 that divides power between fed and provinces, also includes amendments
  • Statute of Westminster 1931 that establishes independent parliament (no longer colony)
  • Constitution Act 1982 devolves powers to provs, creates universal bill of rights, establishes amendment formula
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9
Q

BNA Act sections

A

91 - POGG clause, reserve powers, power over natives, taxation power (basically all federal powers)

92 - provincial powers over health, municipalities, property + civil rights, local matters (tax only directly)

93 - provincial power over education and allows minority schools (like Catholic)

95 - shared power over agriculture and immigration

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10
Q

Constitution Act 1982 Sections

A

Charter of Rights

  • S1 reasonable limits on rights
  • S2 freedoms (religious, speech, association, assembly)
  • S3-5 democratic
  • S6 mobility
  • S7-14 legal
  • S15 equality (allows affirmative action too)
  • S33 notwithstanding clause

S36 and 38 equalization payments + amendment formula (parliament + 2/3 provinces that have >50% pop)

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11
Q

1931 const history

A

Stat westminster abolishes colonial status but still dominion and UK parliament has to approve amendments

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12
Q

1949 const history

A

Supreme Court takes over from privy council, fed gov takes over amendment power for issues only affecting fed (prov still requires UK approval)

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13
Q

1964 const history

A

Quebec rejects the Fulton-Favreau formula (unanimous consent for division of power and language issues, 2/3 50%+ for other issues)

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14
Q

1971 const history

A

Victoria charter rejected by Quebec over fed refusal to give up many policies (parliament + provinces with more than 25% pop + 2 atlantic + 2 western with 50% western pop)

Would have created Bill of Rights + equalization, provincial say in SC appointments

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15
Q

1970-80 const history

A

Lack of progress due to rogue Quebec, 1980 Trudeau tries to amend unilaterally for amendment formula, Charter, federal centralization and no special QC status (provinces challenge in court)

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16
Q

1981 const history

A

ON + NB take federal side but others wary of limiting power of Charter, QC under Levesque goes rogue couple of times

SC ruling establishes need for substantial provincial consent for const change

Kitchen talks among 9 English provinces work out deal, QC doesn’t sign (betrayal)

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17
Q

1982 Const history

A

Constitution Act created, Trudeau gets no QC veto but not really centralization (QC bound although didn’t sign)

18
Q

Uses of notwithstanding clause)

A

QC does for all legislation symbolically, also 1988 French only signs

SK 1986 for labor law

19
Q

Meech Lake Accord

A

1987 attempt by Mulroney to integrate QC in federation, Premier Borassa demands:

  • Distinct society for QC
  • More jurisdiction over immigration
  • Prov participation in SC appointment
  • Amendment veto
  • Opt out of fed programs over prov jurisdiction with compensation

Also yearly FMC, provincial say in senate appointment

20
Q

Failure of Meech Lake

A

Too long of a window for ratification, opposition grows among centralists, ppl who don’t like distinct society, aboriginal + women’s groups + ppl who feel it was elitist, ppl who thought too rigid. NL + MB reject and dies June 1990

21
Q

Charlottetown Accord

A

1992 new package

  • Canada Clause (features of Canada like democracy + distinct QC)
  • Senate reform (elected apart from QC which appoints via national assembly; most vetoed bills go to joint house/senate session, some vetoed outright and others just to second house vote; 6 senators per province and 2 per territory = 62) and QC guaranteed 25% of house seats
  • Fed abandons most resource, housing, municipal, tourism, culture, labor training jurisdictions
  • Aboriginal self-government (third order of gov)
22
Q

Failure of Charlottetown

A

Tried to please everyone but ended up pleasing few, still criticism of elitism, opp from centralists, most provinces vote against

23
Q

Confederation

A

Structure where constituent units are sovereign and give authority to central gov, can be taken away

24
Q

Unitary state

A

Strong central gov that can devolve, centralized and devolution can be reversed

25
Q

Federation

A

2 or more levels of gov that share sovereignty (middle ground between confederation and unitary)

26
Q

General history of federalism

A

Swiss + HRE in middle ages

1787 American federalism model that is widely copied today –> mostly characterized by bicameralism

Some states like USSR are fake federations

27
Q

Why did Canada choose federalism?

A
  • Early federalism mostly symbolic (Lieu Governors appointed by fed, fed could approve and deny prov legislation and nationalize provincial works; POGG intended to be used unitary and fed appoints senators + superior court judges)
  • QC given provincial control over culture, education, language, etc. and civil law kept
  • Surprising choice + British approval due to US revolution precedent
28
Q

1867-1883 federalist history

A

Centralized period where fed often interfered in provincial affairs

29
Q

1883-1914 federalist history

A

Premiers Mowatt in ON and Mercier in QC influential and challenge fed, becomes more decentralized

**Also helped by privy council usually ruling in favor of provinces –> POGG becomes emergency power and provinces given control over property + civil rights (judicial review very important for decentralization!)

30
Q

WW1 federalist history

A

POGG used to run Canada unitary, QC doesn’t like conscription and takes a few years to decentralize after

31
Q

1921-39 federalist history

A

Change back to pre-WW1 dual federalism, welfare state starts and provinces given control of most of it (health, education, etc) although Depression hinders efforts

1930 prairies given control of resources

32
Q

WW2 federalist history

A

Emergency again but also start of shared cost programs, fed gets authority for unemployment insurance

33
Q

1945-1960 federalist history

A

Cooperative with good fed-prov relations, more shared-cost programs and fed creates old age security + hospital insurance

34
Q

1960-1970 federalist history

A

Double-image federalism where QC quiet revolution –> QC pension plan and shared-cost opt-out

Rest of Canada cooperates, creation of Canada Assistance Plan + Medicare

35
Q

1970-Present federalist history

A

Conflictual federalism with some devolution but provinces wanting more jurisdiction (esp QC which wants very small fed for defense, currency, monetary policy, etc.)

Poorer fed-prov relations, premier meetings in Council of Fed and tension over fiscal imbalances

36
Q

1867-1907 fiscal fed history

A

Fed dominates fiscal matters with grants to provinces which don’t tax much

37
Q

1907-1942 fiscal fed history

A

Conditional fed grants and separate taxation which is confusing, provinces have fiscal trouble in 30s

Rowell-Sirois 1937 recommends ending of conditional grants, provinces to give up most tax to fed, equalization payments (last 2 mostly done)

38
Q

1942-1957 fiscal fed history

A

1942 starts tax rental (taxation given to fed in exchange for payments) by QC and ON out by 1952

Start of big conditional grants for shared cost programs

39
Q

1957-1962

A

Provinces get % of tax collected instead of payment

Start of equalization, conditional grants stagnate, taxes shared with prov allowed to take more %

QC does own tax and opts of out shared-costs (given compensation)

40
Q

1977-Present fiscal fed history

A

Erosion of conditional grants + standards, established program financing (EPF) for health and uni education

Change from shared-cost to block grant in 1995 Canada Health and Social transfer ($$ cut)

Provinces have own tax base, QC + AB do own corporate tax

Big equalization battles

41
Q

5 main elements of fed-prov relations

A

Executive federalism (big summit meetings between premiers + PM)

Equalization (unconditional and set by fed which determines formula alone)

Health and Social Transfer (tax points and cash transfers to provinces, very few conditions now)

Federal fiscal transfers to individuals/municipalities in provincial jurisdiction

Still powerful fed that appoints Senators, Lieu Govs, prov court judges, etc.) although some powers weakened / unused (POGG, disallowance)

42
Q

Summary role of courts in shaping federalism in Canada

A

Judicial review important esp in privy council years for decentralization

SC favored provinces less since gaining control but still not equal between fed + provinces

SC favors fed on issue of spending power (can spend on provincial jurisdiction)

SC favors provinces in senate reform and provincial veto for national securities regulation scheme

Courts (2 decks)

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