mod 2 - The Canadian Constitution Flashcards

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1
Q

A primer on rights

A
  • human rights are inherent, universal, interdependent, interrelated, and indivisible (can’t take away one without taking away others)
  • the state has: rights and obligations (positive and negative rights)
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2
Q

A history of human rights

A
  • British North America act 1867
  • constitution act (included charter) 1982
  • common law: if a statute takes away a civil liberty, courts cannot provide protection (Parliament Supremacy)
  • 1930s Nazi Germany, WWII
  • 1948 UN declaration of human rights
  • 1960 Canadian bill of rights (limited document)
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3
Q

What is a law?

A
  • all laws are rules, but not all rules are laws

- law is the body of rules that can be enforced by the courts or other government agencies

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4
Q

A primer on constitutions

A
  • constitutional law is concerned with the rules governing the use of government power (public law)
  • constitutions reflect the values that a country regards as important (limited government)
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5
Q

Rule of law - Aristotle

A
  • if lawmakers are not narrowly constrained by general laws set up in advance, they will be too easily deflected by personal feelings or self interest, and will make unjust decisions
  • The rule of law is meant to prevent arbitrary and unreasonable decision making
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6
Q

John Finnis - 8 features of the rule of law

A
  1. Rules must be prospective and not retroactive (can only apply to future events)
  2. Rules must be capable of being complied with
  3. Rules must be promulgated
  4. Rules must be clear
  5. Rules must be coherent with each other
  6. Rules must be sufficiently stable to allow people to plan their lives
  7. The making of orders applicable to relatively limited situations must be guided by relatively general, clear, stable rules
  8. People with the authority to make or administer laws in an official capacity:
    a) must be accountable;
    b) must actually administer the laws consistently with their tenor
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7
Q

Roncarelli v. Duplessis - rule of law used as a shield to protect a Quebec restaurant owner from the Quebec government’s action in cancelling his liquor license for personal reasons

A
  • Mr R. owned a restaurant in Montreal (in operation since 1912)
  • Jehovah’s witnesses were distributing religious tracts on the street, tracts were viewed as seditious to Quebec’s Roman Catholic population (violent protests)
  • Mr R. provided bail for 380 Jehovah witnesses (Quebec premier not pleased)
  • his liquor license was revoked by Quebec’s liquor commission (must be discretion - the decision must be based upon a weighing of considerations pertinent to the object of the administration “good faith”
  • do deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred (therefore offends the rule of law)
  • appellant sued for loss of profits from business
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8
Q

Re Manitoba Language Rights - the rule of law, Supreme Court provides its most elaborate mediation to date the meaning of the rule of law

A
  • Manitoba act 1870, can use French or English in House, courts, acts of legislature published and printed in both languages (consistent with constitution act)
  • the official language act, 1890 (English) stopped publishing in French, this act was challenged numerous times and ruled unconstitutional, invalid under s. 52
  • Governor General referred to SCC:
    1. Are the provisions mandatory? (Yes, need both languages, s. 133 constitution and s. 23 Manitoba act)
    2. Are statutes/regulations invalid? (Yes, temporarily invalid)
    3. Are they of any legal effect? (No, but a legal vacuum = chaos)
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9
Q

Rule of law takeaway

A
  1. Law is supreme over government and private individuals (no one is above the law)
  2. Rule of law requires the creation and maintenance of an actual order of positive laws which preserve and embodies the more general principle of normative order
    - per SCC in Re Manitoba language rights: “the rule of law expresses a preference for law and order within a community rather than anarchy, warfare and constant strife. In this sense, the rule of law is a philosophical view of society which in the western tradition is linked with basic democratic nations” (concerned with arbitrary use of power, promotes law and order, constitutional norm)
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10
Q

Constitutions can be:

A
  • written or unwritten
  • flexible or rigid
  • regulates the state: customs (responsible government political parties - unwritten), conventions (dissolution of Parliament Prime Minister and Cabinet - unwritten), laws (25 primary documents, case law - written)
  • expresses a nation’s values (democratically elected representatives, non-partisan administration of law, division of powers, self-government, revolution)
  • separation of powers (legislative, executive, judicial)
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11
Q

History of Canada

A
  • in 1867 ON, QB, NS, NB formed dominion of Canada (did not intend to sever ties with British)
  • British North America act did 12 things
    1. Created the federation
    2. Gave parliament power to create provinces
    3. Gave parliament power to set up SCC
    4. Set out division of powers
    5. Granted Quebec distinctive civil law
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12
Q

When each province joined the confederation

A
  • 1870: Manitoba and NWT
  • 1871: British Columbia
  • 1873: PEI
  • 1880: Arctic islands
  • 1898: Yukon Territory
  • 1905: Alberta and Saskatchewan
  • 1949: Newfoundland and Labrador (last province to join)
  • 1999: Nunavut
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13
Q

WWI and WWII

A
  • 1914, WWI Canada joined as an independent nation
  • 1931 statute of Westminster (gave Canada full legal independence)
  • 1939, WWII
  • 1949, constitutional amendment
  • 1982 constitution act, ends ties with Britain
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14
Q

Old to. New constitution

A
  • old constitution + some small deletions + five important additions
    1. Established 4 legal formulas/processes for amending the constitution
    2. The first three amending formulas entrench certain parts of the written constitution (Place them beyond the power of parliament or any provincial legislator to touch)
    3. Sets out the charter of rights and freedoms
    4. Gives provinces power over natural resources
    5. Indigenous populations granted explicit rights (1982)
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15
Q

Three provisions of constitution

A
  1. The charter’s guarantee of certain rights and freedoms shall not be understood as to revoke or devalue from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada
  2. Existing aboriginal and treaty rights of aboriginal peoples of Canada are hereby recognize and affirmed (Indian, Inuit and Métis peoples)
  3. The amending formula was used for the first time to add to the aboriginal and treaty rights of Canada’s native peoples, rights or freedoms that already existed by way of land claims agreements or that might be so acquired, and to guarantee all rights equally to men and women (also provides for English and French versions of the whole written constitution)
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16
Q

Reference re succession of Quebec - 3 questions

A
  1. Under the constitution can Quebec effect succession unilaterally (the right to effectuate secession without negotiation)?
    - 4 fundamental principles come into play: federalism, democracy, constitutionalism and the rule of law, respect for minorities
  2. Under international law is there a right to self-determination?
  3. In the event of conflict between the two, which takes precedence?
17
Q

Reference re succession of Quebec - vote %

A
  • in 1980 (no= 59.56%)
  • in 1995 (no= 50.58%)
  • Jean Chrétien initiated a reference to answer the legality of a unilateral Declaration of Independence
18
Q

What is federalism?

A
  • the constitutional structure of government
  • two levels: national (federal), regional/state (provincial)
  • each level of government is independent from the other, and they derive their governing powers from the constitution
  • Central government has power to deal with national issues, to make laws applicable to all citizens and to represent the units of federation
  • courts are designated to settle federal/regional constitutional disputes
  • amending formula in constitution prevents one level from making unilateral changes to the constitution
19
Q

Why did Canada chose federalism?

A
  1. Diversity of original provinces
  2. Quebec’s - unique legal code, language and culture
  3. Threat of American aggression
  4. National economy for free trade and national transportation
20
Q

Federalism: special features

A
  • both levels of government are equal, have full jurisdiction within their powers
  • judicial interpretation shifted considerable power to the provinces
  • decentralized with considerable fiscal imbalance
21
Q

Federalism - BNA Act

A

BNA Act

  • created the federation
  • sets out division of powers
  • vested formal power in queen and created queen’s privy council (part III)
  • empowered parliament to create SCC (happened in 1875, s. 101)
  • guaranteed the right to English and French in parliament, legislature, and courts (s. 133)
  • guaranteed separate schools for Protestant and Roman Catholic minorities in Quebec and Ontario (s. 93)
  • guaranteed Quebec the use of civil law (s. 129)
  • have the Federal government power over provinces, including disallowance (s. 90) and declaratory powers for general advantage of Canada (s. 92)
22
Q

Judicial interpretation

A
  • non-partisan (neutral)
  • presumption of constitutionality for impugned legislation(assume legislation is constitutional until proven otherwise)
  • ultra vires: outside jurisdiction
  • intra vires: within jurisdiction
23
Q

R v. Morgentaler

A
  • Dr. Morgentaler championed abortion
  • opened abortion clinic in Halifax in 1989
  • Nova Scotia government enacted regulations preventing abortions being performed anywhere but at a hospital
  • SCC: is it within provincial power over health - 92(7) and 16 - or restricted to federal power over criminal law - 91(27)? (Are regulations in pith and substance criminal law)
  • Nova Scotia government argued regulations were intra vires under provinces authority over health
24
Q

R v. Morgentaler - steps to consider

A
  1. Need to identify the matter of law - “pith and substance”
  2. Can then assign to one of the classes of subjects
  3. Consider purpose and effect of the law (legal effect and practical effect)
    - extrinsic evidence (Hansard) suggested that was not health-related, but to prevent abortions
    - ultra vires: unconstitutional (Morg won), it was criminal not healthcare
25
Q

s. 91 federal government responsibilities

A
  • unemployment insurance
  • postal service
  • military
  • banks
  • Indians, and land reserves for Indians
  • marriage and divorce
  • criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters
26
Q

s. 92 provincial government responsibilities

A
  • direct taxation within the province
  • borrowing of money on a sole credit of the province
  • The establishment, maintenance, and management of hospitals, asylums, charities in and for the province
  • municipal institutions in the province
  • ships, railways, canals
  • property and civil rights in the province
27
Q

How many documents is the constitution?

A
  • 25 primary documents

- 14 acts of British parliament, 7 of the Canadian, and four British orders-in-council

28
Q

The Queen

A
  • under the constitution the Queen is given executive power (also queens privy council)
29
Q

Amending the constitution

A
  • made by proclamation issued by Governor General
  • majority of members
  • expression of dissent
  • revocation of dissent
  • restriction on proclamation
  • compensation