Unit 2: Rights & Freedoms Flashcards
Importance of a Constitution
A constitution is a framework for a nation’s form of government and legal system.
Canada’s constitution allocates powers to each level of government.
Constitution also sets out procedures for making laws and who makes them.
Countries rules reflect the values and beliefs of the people.
Constitution may be written or unwritten (U.S.A - Written, Britain - Unwritten, Canada - Written & Unwritten).
Constitutional Law
The law that establishes, allocates and limits public power.
What Are the 3 Sources of Canada’s Constitution?
- Written - Constitution Act, 1867 (BNA Act), and Constitution Act, 1982
- Unwritten - Set of rules or conventions by which our government operates.
- Court rulings that interpret the written constitution - (precedent).
BNA Act 1867
Canada became a country when four provinces: Ontario, Quebec, NB, and NS were united.
BNA Act was passed by the British Parliament.
The BNA Act was drawn up by the Canadian Fathers of Confederation.
Canada adopted a federal system of government in which power would be divided between the federal and provincial governments.
The federal government looks after issues of national concern (29 of them, defence, economy, currency).
The provincial governments look after issues which might cause conflict between provinces (16 of them, education, healthcare).
Division of Powers
Canada’s constitution allocates powers to each level of government: Section #91-Federal/Section #92-Provincial.
The most sweeping powers were given to the federal government (the way it was wanted).
The federal government was given unlimited powers of taxation.
Canada’s Unwritten Constitution
Plays a vital role in Canadian Law (the Constitution Act, 1867 - no mention of a prime minister).
Did mention “a constitution similar in principle to that of the United Kingdom (Britain).”
From that phrase, we get many ways of how we function (cabinet system, party system, and cabinet solidarity).
Municipal Level
1867 - 3/4 of Canada’s population lived in rural areas.
Today - 3/4 of Canada’s population lives in cities.
Cities are under the authority of the provinces.
The provinces enacted municipal acts - this gives cities the power to provide basic services (garbage collection, snow removal) for the citizens and to pay for them by having property taxes, service fees, etc.
Cities/Towns can pass local laws called bylaws.
Court Decisions
If disputes arise over the meaning or intent of the Constitution, the courts are called upon to resolve it - set precedents.
Role of the Courts
Courts offer a venue for the peaceful resolution of disputes, and for a calm and rational discussion.
A strong and independent judiciary guarantees that governments act in accordance with our Constitution.
Courts interpret the constitution and solve disputes between the levels of government.
If provinces and the federal government can’t decide on jurisdiction then the courts will decide.
Structure of the Courts
Based on the British model of Supreme Court at the highest level.
Highest Provincial Court - Court of Appeal:
- Court of Queen’s Bench
- Superior Court
- Small claims court
Highest Federal court - Supreme Court of Canada.
Appeals are heard by the Supreme Court of Canada
Until 1949 - Highest court of appeal in Canada - Judicial Committee of the Privy Council (JCPC) in Britain.
JCPC - final court of appeals for Britain’s overseas dominions and possessions
Person’s case was heard on appeal by the JCPC in 1929 , the JCPC ruled against the Supreme Court of Canada.
The Supreme Court (1875)
It is the highest court in Canada.
It is an appeal court that hears cases from the provincial court system and the Federal Court of Canada.
The Supreme Court must agree to hear the case.
The Supreme Court only hears important cases dealing with civil, criminal, and constitutional law.
The Supreme Court consists of the Chief Justice and eight other justices appointed by the federal cabinet.
3 Judges from Quebec (to ensure the court has an understanding of the civil code).
3 Judges from Ontario, 2 from Western Canada, and 1 from Atlantic Provinces.
Justices only serve until the age of 75.
Once the Supreme Court makes a decision it becomes binding on all lower courts across Canada.
Decisions of the Supreme Court are final - there is no way for the case to be further appealed.
Appointment of Judges
Over 750 courts across Canada.
Provincial Small Claims Court judges are appointed by the Provincial Government.
Superior Courts - Federal Government.
Judges must belong to the legal profession (lawyer).
Minimum of 10 years of practice
Lawyers must apply to become judges.
The Evolution of Canada’s Constitutional Act
Canada’s Constitution (BNA Act 1867) was enacted by the British Parliament.
Any amendments (changes) to the BNA Act had to go through and be approved by the British Parliament.
The BNA Act was:
- Subject to British Rule
- Bound by foreign policy (entry to WW1 was automatic)
- Monitored by Canada’s final court of appeal for Constitutional matters was the Judicial Committee of the Privy Council in Britain
Statue of Westminster - 1931
The Statute of parliament made in Britain on December 3, 1931 gave significant equality to a number of dominions within the British Empire.
Canada, Australia, New Zealand, Ireland, and South Africa could now be considered sovereign nations with full control of both domestic & foreign affairs, but with an allegiance to the British Crown.
Britain could no longer legislate Canada unless specifically asked by the Canadian government.
Canada was no longer subject to British laws/could pass on their own.
Independent of Britain in terms of foreign policy.
Partition of the Constitution
By established a constitution for Canada in 1867, Britain’s Parliament still retained the notional (theoretical) right of accepting or rejecting to Canada’s constitution.
As our nation grew and matured, we became dissatisfied with having to involve a foreign parliament in any changes, additions, or deletions we wanted to make to our constitution.
Our constitution remained a British statue because the federal government and the provincial governments of Canada could not reach an agreement over the amending formula.
Bring decision-making powers regarding the constitution under Canadian control.
In 1968, P.M. Pierre Trudeau wanted to change Canada constitution (including rights/freedoms).
On April 17, 1982, the new Constitution Act was created along with the Charter & Amending formula.
Amending Formula
Way to change the Constitution that would no longer involve the British Parliament.
Meech Lake Accord (1987)
Quebec wanted to be recognized as a “distinct society.”
Indicate the uniqueness of the province of Quebec within Canada.
Acknowledgement of the importance of Quebec’s laws, language, and culture.
Provinces wanted their powers to be increased (i.e. nominate judges and senators).
Indigenous people were upset because they wanted their concerns to be recognized since they were the first inhabitants of Canada.
Needed to be ratified by federal and provincial government in 3 years.
Not Ratified
P.M. Brian Mulroney
Charlottetown Accord
Similar issues to Meech Lake Accord.
Federal power of Disallowance gives the federal Cabinet the power to dismiss any provincial legislative Act within one year but this Accord would have abolished this federal power.
The Senate would be changed from an appointed body to an elected body having equal representation from each of the provinces.
Not ratified (defeated in 6 provinces & 1 territory).
Quebec Referendum 1980
The provincial government of Quebec (Parti Quebecois) asked Quebeckers if they wanted to break away from Canada.
No vote side won 60%
Yes vote lost 40%
Quebec Referendum 1995
The provincial government of Quebec (Parti Quebecois) asked Quebeckers again if they wanted to break away from Canada.
No vote side won 50.5%
Yes vote lost 49.5%
The Development of Human Rights & Freedoms
Canada is often considered one of the best countries in the world to live in.
Canadians place a high value on civil rights and human rights.
Being equal under the law is a recent legal concept in human history - Magna Carta.
Many wars & revolutions had to be fought to get to where we are today.
Civil Rights
Protects us from unfair treatment by the government.
Human Rights
Protects us from discrimination by private persons or organizations.
Dates of Significants
1215 - King John signed the Magna Carta limiting the monarch’s (king) power.
1791 - The U.S. Bill of Rights was passed, giving freedom and civil rights to Americans.
1833 - Britain’s Emancipation Act gave all slaves in the British Empire their freedom.
1865 - The 13th amendment to the U.S.A. Constitution abolished slavery.
1945 - A new international organization was formed: the United Nations.
December 10, 1948 - the Universal Declaration of Human Rights was adopted by the United Nations; it was a formal agreement on specific rights & freedoms for all human beings.
Universal Declaration of Human Rights
WW2 was the most destructive war in history.
In 1945, world leaders formed a new international organization: The United Nations and its purpose is “to save succeeding generations from the scourge of war.”
John Peters Humphrey OC was a Canadian legal scholar & human rights advocate.
John is the author of the first draft of the Universal Declaration of Independence.
Human Rights in Canada after WW2
Canadian Bill of Rights - pioneered by P.M. John Diefenbaker - signed on August 10, 1960, passed by Parliament.
It reminded Canadians that rights & freedoms must be guaranteed by the state, but this document was not entrenched into the constitution.
If we feel these rights are being infringed (violated), there are remedies (solutions) available to us.
The Charter is a significant document for Canadians because it guarantees rights & freedoms for all Canadians living within Canada.
The Charter limits the powers of the government & police because the Charter promotes individual rights & freedoms.
The words of the Charter are meant to be vague so that it can be questioned by the Canadian public.
What are the four periods that the C.C.R.F come from?
- English Common Law & Customs (UDHR).
- Canadian Bill of Rights.
- Victoria Charter.
- Canadian Charter of Rights & Freedoms.
English Common Law
Is where Parliamentary Supremacy is show-cased.
Cabinet, House of Commons, Senate, provincial and territorial legislatures is the highest political and law-making body in the country.
Promoting peace, order, & good (responsible) government.
Canadian Bill of Rights
During both wars, rights were withdrawn, which cause angered in the world.
In Canada - formal protection of civil/human rights was needed.
In 1945, John Diefenbaker raised the issue of a bill of rights in the House of Commons.
Diefenbaker was elected PM in 1957 because he promised Canadians a federal bill of rights.
Diefenbaker introduced the Canadian Bill of Rights which became law on August 10, 1960.
It only put basic rights into writing - reminding Canadians that they had these rights.
Indian Act (Federal) - the Canadian Bill of Rights was said to be racist.
Denied “equality before the law” - s. 1(b).
What are the four criticism faced for the Canadian Bill of Rights?
- Ordinary Statue - could easily be changed by parliament.
- Not included (entrenched) in the Constitution - no precedence over other federal statutes.
- Applied to federal jurisdiction (Banks-federal, Retail-provincial).
- Judges were reluctant to use it because it was not part of the constitution.
Victoria Charter
In 1968, Trudeau wanted to modernize and improve the Canadian constitution.
Trudeau wanted Patriation of Canada’s Constitution from Britain.
In June 1971 - Trudeau and the premiers of the ten provinces met in Victoria, British Columbia.
The Anglo (English-speaking) premiers wanted changes: entrench the Charter of Rights and Freedoms.
Quebec wanted to increase provinces legislative power and fiscal autonomy (economy).
No agreement was achieved.
In 1980 discussions resumed - 1981 all premiers agreed except Rene Levesque who demanded stronger French Language Right for Quebec.
In order to change Canada’s Constitution, it requires the consent of?
The Canadian Parliament
Two-thirds of the provinces with 51% of the population.
The Charter as Law
On April 17, 1982, Queen Elizabeth II signed the new constitution.
Changed the BNA Act to the Constitution Act 1867 and added the Constitution Act 1982 to it (Canada Act).
The new constitution included the amending formula and the Canadian Charter of Rights & Freedoms.
The Charter protects all Canadians at all levels of Government.
Canadians can take the government to court - not used often because of the cost involved.
Legal cases against the government are usually funded by groups and not the individual.
The Charter promotes individual rights over collective rights - motto (slogan).
Remedy
The legal means of enforcing a right or addressing a wrong.
Infringed
Limits or undermines something (i.e. rights/freedoms).
Rights
What you are entitled to.
Freedoms
What you are entitled to expect from the government.
Reasonable Limits Clause (Section 1)
Your rights and freedoms are not absolute; they can be subject to “reasonable limits,” if justified.
It is up to the courts to interpret what reasonable limits can be applied.
