Module 2 : The Canadian Constitution Flashcards
1
Q
Philosphical basis for law…
A
- natural law… objective moral principles discovered by natural reason
- legal positivism… whatever the ruler says but has weaknesses cuz what if ur rules is corrupt
- legal realism… whatever the courts say law is & what is acc being enforced
2
Q
Constitutions
A
- constitutional law is concerned with the rules governing the use of government power (part of public law)
- written & unwritten documents
- rules that govern/limit the activity of the state
- constitutions reflect the values that a country regards as important
- limits government
3
Q
the rule of law…
A
- an ancient concept
- John Finnis characterized the rule of law
- A legal system exemplifies the rule of law to the extent that it meets these eight ideal requirements
- examples in case : Roncarelli v. Duplessis and Re Manitoba Language Rights
4
Q
the rule of law
John Finnis 8 characteristics of rule of law
A
- rules must be prospective, not retroactive
- rules must be capable of being complied with
- rules must be promulgated (accessible)
- rules must be clear (not vague)
- rules must be coherent with each other
- rules must be sufficiently stable to allow people to plain their lives
- the making of orders applicable to relatively limited situations must be guided by relatively general, clear, stable rules
- ppl with authority to make or administer laws in official capacity… must be accountable & acc administer the laws consistently with their tenor
5
Q
takeaways of the rule of law
A
- Law is supreme over government and private individuals (the state has to follow the law)
- Rule of law requires that the creation and maintenance of an actual order of positive laws which preserve and embodies the more general principle of normative order (we have to actually have something to guide us)… concerned w arbitrary use of power, promotes law & order & is a constitutional norm
6
Q
Constitutionalism
A
- the idea that governemnts should be limited
- concerned with the rules governing the use of government power (public law)
- constitutions reflect the values that a country regards as important
- concerned with limited governing
- Whenever a province passes a law that deals with the matter that is actually within the jurisdiction of the federal government (or vice versa), that law is invalid (or if its against Charter of Rights & freedoms its invalid)
7
Q
constituons can be…
A
- written or unwritten
- flexible or rigid
- in canada we are a bit of all of them
8
Q
The constitution regulates the state through…
A
- customs (responsible government, political parties)
- conventions (dissolution of Parliament, Prime Minister & Cabinet)
- laws (25 primary documents case law)
9
Q
Constitutions express a nation’s values, such as…
A
- we have a democratically elected representative
- non-partisan administration of law under the democratically elected representative (not faithful to different political ideologies)
- division of powers
- self-government (canadian ppl require a canadian government)
- revolution (being our own, apart from the UK)
10
Q
History of the Canadian Constitution…
Pre-confederation… before 1867 British North American Act
A
- small population, scattered over a great distance in Canada
- ‘provinces’ divided by economics, language, religion, legay systems & education
- largely cut off from home (UK)
- there was the threats from the USA
- so… Canada needed a real union (they wanted to call it the Kingdom of Canada)… they had goals of unity with diversity (multiculturalism) and this union was to be homegrown
11
Q
History of the Canadian Constitution…
1867 British North American Act (ON, QB, NS, NB)
A
- did not intend to sever ties with Britian (kinda wants to be like it)
- our constitution was passed by the British
- Homemade except for using dominion instead of kingdown and provisions for breaking a deadlock
- shortly after, Nova Scotia wanted out idk?
12
Q
History of the Canadian Constitution…
Up until 1981, the British North American Act did 12 things, including…
A
- created the federation
- Gave parliament power to create provinces
- Gave parliament power to set up SCC
- Set out division of powers (federal & provincial)
- Granted Quebec distinctive civil law
13
Q
History of the Canadian Constitution…
When the provinces joined the confederation…
A
1870: Manitoba & NWT
1871: British Columbia
1873: Prince Edward Island
1880: Arctic Islands
1898: Yukon Territory
1905: Alberta & Saskatchewan
1949: Newfoundland & Labrador
1999: Nunavut
14
Q
History of the Canadian Constitution…
timeline after BNA…
A
- 1914: WWI
- 1931: Statute of West Minister - gave Canada some legal independence & limited Britians’ legislative authority over Canada
- 1939: WWII
- 1949: Constitutional Amendment - gives Canada more legal independence (SCC as highest court)
- 1982: Constitution Act (april 17) - ‘patriation’ FULL legal independence
15
Q
History of the Canadian Constitution…
1982 the Constitution Act… old constitution + some small deletions + 5 important additions…
A
- established 4 legal formulas/processes for amending the constitution
- some parts of constitution entrenched (s.52 (1) Supremacy Clause)
- sets out the Charter of Rights and Freedoms
- Gives provinces powers over natural resources
- Indigenous populations granted explicit rights
