Topic 3 Flashcards
What is a constitution
Foundational charter (legal documents) and supreme laws that form the basis of a legal system and political society
True or false constitutions lays out jurisdiction
True
Constitutions have come to symbolize ____
The social contracts that societies make to constitute themselves in which the people confer authority to political actors in exchange for the establishment of order
Forms of constitutions
Written, hybrid (combination of written and unwritten) and Unwritten (grounded in customs)
What country has a written form of constitution
US
What country had a hybrid form of constitution
Canada
What constitution is unwritten
UK
Elements of Canadian constitution
- federalism and jurisdiction between federal and provincial governments (Canada as a distribution of authority)
- system of cheques and balances, more autonomous
- charter of rights and freedoms, big step into constituting Canadian society, key in liberal democracies, emphasis on civil and liberal rights
Social contract
- give some of our freedoms up to the sovereign to protect us and sovereign had the authority to issue punishments in the act of preservation of order
Constitutions tend to
-express founding principles and shared values
-establish the political system
-establish fundamental laws of society
-Confer power to particular actors and or institutions
-outlined the basic rights and obligations of citizens
-highlight a particular history
-contain aspirations
Constitutional design
Particular features of constitutions
Constitutional varies
- terms of form (long or short)
-content ( federal, provincial)
-written/codified or unwritten/ uncodified
Are constitutions made difficult to change
Yes I order to counter any overstretch of authority and establishes a political a society
Most constitutions
-have a particular amendment processes
-many constitutions specify judicial review
-many constitutions omit important political structures and legal processes
most constitutions diffuse authority of the state through a
- Division of powers
- System of cheques and balances
Authority may be diffused _____ and _____
Horizontally and vertically
Vertical diffusion of power
- federalism, constitutionalized, central, federal and regional government based on a degree of autonomy with specialized jurisdictions
Horizontal diffusion of power
-separation of power on a system of cheques and balances, judiciary makes ultimate decision
What diffusion of power does Canada exhibit
Hybrid of vertical and horizontal
Separation of powers
- the division of government powers in a system between branches of government
What are the 3 branches in government
- Executive
2.legislative
3.Judicial (involving judicial review)
Federalism
-a political system with multiple levels of government each with a degree of autonomy with specialized jurisdiction
What parts of the BNA reflects federalism
Section 91 and 92 of the BNA
Unitarism
A political system with no sub national governments processing delegated authority/ jurisdiction (no provinces)
Example of a decentralized unitary state
Spain
What countries exhibit asymmetrical decentralization
Canada and UK
What is asymmetrical decentralization
-different regions or areas within a country are granted varying levels of power (exp provincial is in charge of health and education whereas federal deals with criminal law), distribution of power
Constitutional law described as
- Constitutional law has been described as a mirror reflecting the national soul, * as a means to protect the values of the nation
How is constitutional law different from other forms of statute
*cannot be changed by a mere passage of new law
* can only be changed through a specific ammending formula
What is section 91 outline in BNA
- outlines the federal powers and jurisdiction, invoked inorder to affirm the peace order and good government of the country, if an area is not outlined in the consituition its a federal issue
What is section 92 outline in BNA
- Outlines the provincial powers/jurisdiction
What do sections 91 and 92 provide
- a bicameral parliment
What is section 91 (27)
Gives federal government exclusive power to legislate on criminal law
What court case relates to section 91 and 92
- Attorney general v PHS Comunity Services Society
- conflict between the federal criminal law power to prosecute users of illegal drugs
- providing safe injection sites
- in hopes of harm reduction
Section 36 (2) of the BNA
- equalization payments- base standard of social services and infrastructure, provincial equality of access of public services
The constituition act (1982) embodies 2 significant additions to canadian constituitional law
- formula to be applied in order to make future ammendments to Canada’s constitutional structure
- legislation in the mould of the US Bill of Rights, the Canadian Charter of Rights and Freedoms designed to protect the rights of canadian citizens
Did the BNA have an Amending Formula
- The BNA did not have a amending formula
Ammending formula
- created by the constitiution act (1982)
- sets out three tyoes of amendments
- Section 38- requires support form the house of commons and the senate as well as 2/3 of the province
- Section 41
- Section 43
Section 38 of constitution act
7-50 formula ( at least 7 provinces must approve constitutional reform, given current populations one of those provinces must be ontario or quebec)
Section 41 of constitution act
- ammendment to consituitional law requires the unanimity of the federal government and all the provincial governments
- makes changes to the monacrchial traditions of canadian government a difficult task
- consist of any legislation to eliminate the office of the queen
Section 43 of constitution act
- affects only certain provinces
- example is number of language provisions
- can be changed with the consent of the federal government and the affected provincial governmnets
includes alteration to boundaries between provinces and any provision relating to the use of english or french within the province
Quebec rejected the constitution act
True
What is the Meech lake accord and what year
The Meech Lake Accord:
* The Meech Lake Accord was an attempt to bring Quebec into the constitutional, with an agreement reached in June 1987.
* It required ratification by federal and provincial legislatures.
Senate Representation Amendments:
* Representation was to be based on provincial status, not population.
* Aimed to balance representation by population with representation by region.
The Meech Lake Accord Conditions:
* Quebec demanded distinct society recognition, a veto over constitutional amendments, a greater role in immigration policy, and appointments to the Supreme Court.
* Critics argued that Quebec was given too much power.
1987
What is the Charlottetown accord AND WHAT YEAR
After Meech Lake’s failure, the Charlottetown Accord was an ambitious reworking of the Constitution, addressing Quebec’s representation, Senate reform, Indigenous rights, and House of Commons reform.
* It failed due to trying to accomplish too much too quickly.
Charlottetown Accord Criticism:
* Lumped together too many issues (Indigenous rights, Senate reform, House of Commons representation, Quebec’s distinct society status).
* Failed due to distrust and unpopularity, especially of Prime Minister Brian Mulroney.
1992
What were the 2 attempts to amend the Canadian constitution in order to address issues surrounding Quebec
Meech lake accord (1987) and Charlottetown accord (1992)
What came before the charter dealing with rights of citizens
- bill of rights 1960, considered federal statue
- dealt mostly with discrimination of workers in government
Why is the R V drybones case significant
- first time the key parts of the bill of rights are enforced
- acted as a precdessor to judicial review
- reshaped notion of parliament
- case had to do with the section in the Indian act
What was the R V drybones case concerning
that stated that first nations are not allowed to be found intoxicated on reserve and that they would be fined Drybones took it to court saying that it impinged on his right in the Bill of Rights on the basis of discrimination due to race
Charter of Rights and freedoms Section 1
-limitations clause
-set out a 2 part test to determine whether federal or provincial law can overrise a constutuional guarentee of protection within the charter
What is the 2 part test within Section 1
- Does it have sufficient importance (must not be arbitrary or irrational)
- Does it involve a form of proportionality (should impair as little as possible on our rights and freedoms)
What are the 2 acts/clauses that circumvent our rights and freedoms
- War Measures Act
- Not WIthstanding Clause
What case represents the “limitation of rights and freedoms”
- Saskatchewan V Whatcott; deals with limitation to hate speech; “limits our free speech”
- Section 2 of the Charter of Rights and Freedoms
sets out fundamental freedoms, freedom of consciousness, religon, association etc
Section 3, 5 and 6 of the Charter
sets out basic rights of canadians; voting, leaving and entering canada and with section 6 (occupational mobility rights)
- Section 7-14 of the charter
Focus on the legal rights of individuals , including legal rights of accused; innocent until proven guilty, right to lawyer, informed as to why you are arrested, right of life
Why is R V Morgentaler case important
- Based on section 7 of the charter
- pertaining to abortion rights
- challenged criminal laws on abortion and won
Section 15 of the Charter
- equality rights
Section 16-23 of the charter
- Protection of minority language rights; french and english national languages
Section 24 of the charter
- Gives court the power to exclude evidence if evidence is obtained in a way that infringes on rights
Section 25-34 of the charter
- application of the charter (protect indigenous rights, respect for multiculturalism)
Section 32 of the charter
- applies to both federal and provincial governments
Section 33 of the charter and section 33 subsection 3
Notwithstanding Clause, government can temporarily bypass certain rights of the charter
subsection 3- limited to 5 years
