The Constitutional Context (3) Flashcards
What is a constitution? (3)
Talking about the basic organization of a state (an organized political community with a government that exercises authority over a particular territory)
The set of rules that defines how the government is organized/operates, and defines powers of people and relations, as well as the powers of the governments (provincial versus federal)
Often built over time as the state develops
What did the Royal Proclamation of 1763 do? (2)
Put into place a set of processes for securing title to Indigenous lands which laid legal foundation for securing of Indigenous title
In the absence of equal respectful treaty negotiations, the lands remain to indigenous people and the only way to secure it is though the federal government
What does Burrows point out about TRP? (2)
We can see British double-speak as we see recognition that Indigenous people have rights to the land but at the same time they alienate that title/recognition for other rights (Treaty of Niagara)
Treaties are contracts and when interpreting contracts, you can’t get a workable outcome when focusing only on the legal letter of that contract (requires us to look at the contract when it was signed and the broader context)
What did the BNA Act and the Constitution Act of 1867 do? (3)
- Brought together provinces and federal government in a federalist system (created a political mechanism by which diversity could be reconciled with unity and divided powers between governments
- Recognized power of Crown and Parliament of Great Britain over Canadian Dominion
- Created unified system of interprovincial trade and commerce
What catch-all responsibility does the federal government have?
Responsibility for the peace, order and good government for anything not explicitly listed as a responsibility of either (residual power)
What did the Constitution Act not do? (2) What did this mean? (3)
Did not impose a common system of law on the provinces (said previous laws already standing stay)
Didn’t grant Canada real independence from Great Britain
Means UK could pass laws on Canada, couldn’t amend constitution without permission from Britain and final appeals court was the Judicial Committee of the Privy Council
When did independence from Great Britain become more important? (2)
After 1930 with the Statute of Westminster (1931) which confirmed legislative independence (Britain only got involved if asked, could strike down British statute and they couldn’t strike down Canadian statute)
Appeals to the Privy Council ended in 1949
What happened with the Canada Act of 1982? (4)
Secured full independence from the UK
Brought constitution home with full control over it and amendment
Created the Canadian Charter of Rights and Freedoms (written and entrenched)
Removed any powers of the Queen in Canada
What did the Charter of Rights and Freedoms do according to Berger? (3)
Impacts on constitutionalism
1982 was a turning point in terms of the judiciary as before, it’s role was viewed within Canadian government very narrowly (constitutional role of courts was to be a referee between federal and provincial governments, deferring most legislative matters to government)
After 1982, judiciary took care of the charter from politics and SCC rebalanced political will and protected rights from government
What are the underlying principles of Canadian Constitutional Arrangements?
Parliamentary Supremacy The Rule of Law Constitutionalism Responsible Government Judicial Independence
What is Parliamentary Supremacy? (2)
Principle that parliament is supreme law maker for the country, linked with the concept of DEMOCRACY (we elect a government into power and expect they will reflect our interests)
Rebalancing of tensions between political will and universal rights as SCC became highest law making body and thus a check on Parliamentary Supremacy
What is the Rule of Law? (2)
The principle that all persons are bound to the laws of Canada and must respect those laws, including those who pass them
Reference re the Secession of Quebec: the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs
What is Constitutionalism? (2)
States that constitution is the supreme law of the country of the country and all government action must comply with it (any law that is inconsistent with it is of no force or effect)
Reference re Secession of Quebec
What is Responsible Government? (2)
Principle that parliament has power to make the laws and all people are subject to the will of Parliament within their powers
Roncarelli v Duplessis - Roncarelli was a Jehovah’s Witness who would post the bail for all of the Jehovah’s witnesses who were being arrested for threatening the catholic faith by handing out pamphlets without a license (essential to Quebec); Duplessis revoked his liquor license and he went bankrupt; took D to court and, by principle of responsible government, he did not have the power to control liquor licenses so he took powers not of his own and used them for a self-interested purpose
What is Judicial Independence? (1)
States all judges must be free to make what they believe to be the most legally correct decision without political interference or governmental reprisals
