power point 1 Flashcards
MLA contents: distinct society
-quebec interpretive clause (meanings)
MLA contents: immigration
quebec immigration proportionate to population
can exceed 5%
MLA contents: Supreme Court
3 from Quebec,
solely made from a list made from the Quebec govt,
other provinces =federal
MLA contents: spending power
compensation for opting out of shared cost programmes
MLA contents: amending formula
compensation, more unanimity
MLA contents: senate reform
appointments from lists
MLA contents
distinct society immigration supreme court spending power amending formula senate reform more conferences
MLA
Meech Lake accord
Critique of MLA
- Process: 11 white men in a room
- hierarchy
- all about Quebec - Supreme Court: gridlock
- no provisions about gridlock - federal power weakened
- amending formula
- the rights of every province vary - non discussion of aboriginal issues
Charlottetown Accord
- Spicer Commission
- “Shaping Canada’s Future together” - special joint commission
- 6 national hearings across the country
- variety of Provincial Hearings
- Aboriginal organizations consulted aboriginal peoples
- about changes they wanted to see - Broader participation at final state
Parliament
- Senate Equal (6 per province, 1 per territory)
- elected by either people of province or legislature at time of federal election
- effective
- not confidence chamber
- veto natural resources, matters relating to language
- money bills 30 day delay
- other matters in conflict resolved by joint sitting - commons - 18 more seats to Ontario & Quebec
- no fewer than 95% of seats if rep by pop
- 25% guarantee to Quebec
Other Charlottetown Contents
- Social & Economic Union
- Supreme Court as per MLA
- Jurisdictional Matters
- spending power as per MLA
- Exclusive provincial jurisdiction recognized in 8 areas
- disallowance & reservation removed - Amending Formula as per MLA
- but new provinces could be created by feds with no role in amending formula
Aboriginal Matters
- Inherent right to self govt (one of 3 orders of govt)
- Delayed justiciability (5 years)
- Charter applies
- No new land rights
- Commitment to negotiate jurisdiction, land & resources, fiscal and financial arrangements
- Treaties interpreted in ‘just, broad & liberal manner’
- Future first ministers conferences
To change the constitution we need to have a
referendum
Post Charlottetown
- quebec 95 referendum
- yes 49.4 No. 50.6
- turnout 92%
- almost 60% of Francophones voted yes - Constitutional Amendments
- 1994 PEI & Ferry Service
- 1996 NFLD reduced role of churches in school system
- 1998 Quebec school boards changed from religious to linguistic basis
Post 95 referendum
- Parliament recognizes Quebec as distinct society
- parliament requires regional approval of amendments
- will not approve an amendment unless the provinces agreed - supreme Court reference: no right to separation
- Calgary declaration
Calgary Declaration
- All Canadians are equal
- All provinces have equal status
- Canada is graced by a diversity, tolerance, compassion and equality of opportunity that is w/o rival in the world
- gift of diversity includes: Aboriginals, vitality of English and French languages, multicultural citizenry
- unique character of Quebec society, role of its govt to protect and develop that unique character
- all powers given to one province must be available to all
The Charter and the Courts
Judicial branch of govt
-external review of govt action
Judicial power based on
- independence
- review
- –full
- – limited
interpretation
- judicial conservatism or restraint
- –intent of framers
- judicial activism
- –living tree
Judicial operating principles
presumption of innocence adversarial stare decisis -the legal principle of determine points in litigation according to precedent -binding precedent -persuasive precedent
Legislative powers of Cdn judges
- interpret common law
- interpret statutes
- umpire division of power
- apply and give meaning to Charter
Court Structure
British Court
- JCPC (judicial committee of the Privy Council)
- any decision the SCC made could be appealed by the JCPC
Federal Courts
- supreme court
- federal court
Appeal courts (highest courts)
- superior courts
- provincial courts
Canadian Judicial review
JCPC and Supreme Court
- Intra Vires - within the power of the govt
- ultra vires - beyond the power of the govt
- JCPC reduce power of fed govt
- Supreme Court more sympathetic to fed claims
Supreme Court Appointments
- evolving
- power rests with Federal Cabinet
- Nominees apply and are vetted by independent and non partisan advisory board
- complete Questionnaire
- PM recommends appointment to GG
- House and Senate justice committees an opportunity to ask Nominee questions
- no power of veto
Constitution and courts
reference cases
application, interpretation, review
