Progress Exam Flashcards
(25 cards)
4 basic elements of constitutions
- Formal constitutional documents
- ordinary act of the canadain parliament & provincial legisalutres that ara of a constitutional nature
- Constitutional conventions
- judicial decisions that interpret the constitution
Formal constitutional documents
- constitutional act 1867
- constitution act of 1982
- other formal documents:
- statute of westminster 1931
- acts of canadian parliament
Constitutional act 1867
• act of the parliament of the UK that establishes Canada as a federal unon of Ontario, Quebec, Nova scotia and New brunswick
o Establishes bicameral legislature
o Divides jurdiction of laws
o Gives property and civil rights to provinces
o Protects denominational school
o Allows French or English to be used in parliament
Constitution act of 1982
• this act patriated the constituon,
established a formula for amending the constitution
added the charter of rights and freedoms, recognized the rights of aboriginal peoples
made a commitment to the principle fo equalization payments
Acts of a constitutional nature
• Considered part of the constituon, even though they are not included in the list of documents that form the constitution
o Eg:
• Royal proclamation 1763
• Canada elections act
• Clarity actWhat led to the changes of 1982?
• Trudeaus defeat
• Joe clark
• Trudeaus return
• Quebec referendum
• Charter of rights
o Trudeua’s allies (ON & NB) vs. Gang of 8
• Provinces proposal without charter of rights
• Trudeau threatens to go alone
• Patriation reference (1981)
• Trudeau meets with provinces
o Splits gang of 8
• Ends with the kitchen accord/ night of long knivesAboriginal position
- Aboriginal leaders not invited in the negotiations leading to constitution act 1982
- Objection: treaties signed with the crown cannot be transferred to Canada without their consent
- Section 35: existing aboriginal and treaty rights of the aboriginal peoples of Canada
Quebec’s 5 conditions- 1986
- Constitutional recognition of quebec as a distinct society
- Role to appoint the 3 queec judges on the suprememe court of Canada
- Increase quenecs role in immigrant selection
- Full financial compensation for opting out of new federal programs
- Veto over constitituional amendments affecting quebec
Charlottetown
- Constitutional recognition of aboriginal right to self government
- Elected senate with 6 senators from each province, 1 each territory, and aboriginal representation
- Extra seats for Ontario and quebec
- Canada clause
- Commitment to establish as social and economic union
- Powers to provinces
- Supreme court nomination challenges
- Failed in the end
Insite, Vancouver
- Only legally supervised injection site in North America
- Average 702 visits per day, 484 overdoses, no fatalities
- Opened under liberals (2003), opposed by conservatives
- SCC unanimous; give insite exemprtion from controlled drugs and subsances act and keep it open to protect security of the person- section 7 charter
Parliamentary supremacy
o Parliament is the suprmeme law making body whose ability to legislate is not restricted by a superior constitutionl document
o Law can override rights
o But UK cares about individual rights through common law
Limits to parliamentary supremacy
- JCPC
* Implied bill of rights: judicial theory that rights are implied by the preamble to the constitution act
Canadian bill of rights
•1960 act of parliament
• challenge supremacy of parliament
• included a clasue that allowed parliament to pass a law infringing on rights if it made an express declrataion to that effect
• war measures act was excluded from reach of the Bill
• courts reluctant to use the bill to invalidate federal legislation
o roberston and rosetanni, 1963
o lavelle and bedard, 1974
• except in R v. Drybones
o indian convicted of intoxicated in Yrllowknife while not on a reserve
o supreme court acquitted him arguing the penaly is more severe for Indians than non Indians
Charter of rights & freedoms
- Addresses limits of Canadian bill of rights
- Charter as a national symbol
- Applies to federal and provincial legislation
Limits on rights & freedoms
• The reasonable limits clause
o Rights & freedoms are subject only to such reasonable limits prescribed by law as can be demonstrated and justified in a freee and democratic society
• Not withstanding clause
o Parliament of provincial legislature can declare that a law will operate notwithstanding certain provinvcials of the charter
o 5 year limit, renewable
o applies to section 2 and 7-15
o application; bill 101
Impacts of the charter
• Courts can propose to:
o Strike down laws
o Postpone nullification fof a law to give legislators time to revise it
o Strike down offending aprts of a law
o Read in addititional words to make a law more inclusive
o Read down a alaw to make it narrower
o Grant an exemption from legislation
Categories of charter and rights
- fundamental freedoms
- democratic freedoms
- mobility rights
- legal rights
- equality rights
- language rights
- minority language education rights
Fundamental freedoms
- conscience & religion
- thought, expression
- peaceful assembly
- association
- case: Ford vs. Quebec- SCC rejected the French only signs of Bill 101
Democratic freedoms
- the right to vote & hold elected office
- limits the max term of the HOC & provincial legislatures to 5 years
- cases: Harper v. Canada- how much independent 3rd parties can donate to elections
Mobility rights
- right to move & pursue a livelihood in any province
- cases: law society of alberta v. black et al
Legal rights
- right to life, liberty & security of the person
- cases: R v. Latimer
Equality
- equal under the law
- cases: M v. H- lesbians that broke up, debated what each spouse was entitled to
Language rights
- right to communicate and receive services in english or french
- cases: manitoba language rights
Minority language education rights
education in mother tongue of French or english where numbers permit
