Midterm

Question 1

What is the Canadian judiciary?

Answer 1

Hierarchical series of courts that interpret laws

Question 2

Judicial review

Answer 2

Passed laws can be declared unconstitutional by courts

Question 3

Supreme Court

Answer 3

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

Hear appeals from lower courts

Question 4

Federal Court of Canada

Answer 4

Federally created court that hears cases against fed gov

Question 5

Provincial superior courts

Answer 5

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

Question 6

Provincial courts

Answer 6

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

Question 7

What does the constitution do?

Answer 7

Document comprising laws and conventions

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

Question 8

Unwritten and major written parts of constitution

Answer 8

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

Question 9

BNA Act sections

Answer 9

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

Question 10

Constitution Act 1982 Sections

Answer 10

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)

Question 11

1931 const history

Answer 11

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

Question 12

1949 const history

Answer 12

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

Question 13

1964 const history

Answer 13

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

Question 14

1971 const history

Answer 14

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

Question 15

1970-80 const history

Answer 15

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)

Question 16

1981 const history

Answer 16

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)

Question 17

1982 Const history

Answer 17

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

Question 18

Uses of notwithstanding clause)

Answer 18

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

SK 1986 for labor law

Question 19

Meech Lake Accord

Answer 19

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

Question 20

Failure of Meech Lake

Answer 20

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

Question 21

Charlottetown Accord

Answer 21

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)

Question 22

Failure of Charlottetown

Answer 22

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

Question 23

Confederation

Answer 23

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

Question 24

Unitary state

Answer 24

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

Question 25

Federation

Answer 25

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

Question 26

General history of federalism

Answer 26

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

Question 27

Why did Canada choose federalism?

Answer 27

- 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

Question 28

1867-1883 federalist history

Answer 28

Centralized period where fed often interfered in provincial affairs

Question 29

1883-1914 federalist history

Answer 29

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!)

Question 30

WW1 federalist history

Answer 30

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

Question 31

1921-39 federalist history

Answer 31

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

Question 32

WW2 federalist history

Answer 32

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

Question 33

1945-1960 federalist history

Answer 33

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

Question 34

1960-1970 federalist history

Answer 34

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

Question 35

1970-Present federalist history

Answer 35

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

Question 36

1867-1907 fiscal fed history

Answer 36

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

Question 37

1907-1942 fiscal fed history

Answer 37

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)

Question 38

1942-1957 fiscal fed history

Answer 38

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

Question 39

1957-1962

Answer 39

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)

Question 40

1977-Present fiscal fed history

Answer 40

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

Question 41

5 main elements of fed-prov relations

Answer 41

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)

Question 42

Summary role of courts in shaping federalism in Canada

Answer 42

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