What is the Constitution?

Question 1

What is the constitution?

Answer 1

The supreme law of the land/ nation. It describes HOW a country governs itself.

Tells the gov what it can or can’t do. (laws made deemed “unconstitutional”=no effect)

Guarantees rights and freedoms for citizens (ie the charter that also reflects a nations values)

SCC: “living tree capable of growth/ expansion within its natural limits” or something like that - allows for adaption to new social realities

Contrast to the states with some judges who prefer to read their constitution as it was meant to be written upon its origin

“the organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.”
– Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed.

Question 2

What does the constitution take precedence over?

Answer 2

All other law in the land and nation

Question 3

Written or unwritten?

Answer 3

Both/ either/ combo
UK -> unwritten
Canada–> both (party written and unwritten)

In Canada it is the supreme law and thus vey difficult to change

Question 4

What are the written parts of the constitution?

Answer 4

Constitution act, 1867
passed by British parliment and created in the Dominion of Canada. It describes structure of Canada’s government. Creates provincial legislature, the senate and the court. Also describes the division of powers (fed and prov)

Constitution Act 1982- major addition to the constitution. Prior to this the British Parliament could control Canada’s constitution. Fed and prov gov patriated the act in 1982 taking away the control from the British Parliament

Regadless of Constitution Act of 1982 the Constitution act of 1867 remains in full force

Other laws such as naming adding more provinces to Canada, treaties, royal proclamations and some ancient 1800s British law

Question 5

What are the written parts of the Constitution ACT 1982?

Answer 5

Charter of Rights and Freedoms
Protects rights of aboriginal people
Affirms constitution as supreme law
Sets out ways to change constitution- such as ensuring all provinces agree.

Question 6

Unwritten parts of the Constitution Act 1987

Answer 6

Texts Incorporated by Reference:
-Royal Proclamation, 1763: S. 25 of Constitution Act, 1982: The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from…any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763

Unwritten Principles

states that it is based on UK’s unwritten constitution

courts are responsible for interpreting unwritten elements

SCC: assumptions for which the text is based and understood

Also called unwritten principles: ie democracy (incld respect for human dignity, justice, equality)

if courts make decisions based on the constituion, they can use democratic principles to guide decisions.

constitutional conventions are also unwritten: (political rules, not legal rules)

Question 7

What is a Constitution?

Answer 7

-Written or unwritten
-Establishes structure of governments (grants power or restrains it)
-Pre-commitments and change
-Rules about rules
-Rights and Jurisdiction
-Fundamental values
-Political compromise

Reference re Senate Reform (2014)
“23 The Constitution of Canada is “a comprehensive set of rules and principles” that provides “an exhaustive legal framework for our system of government“…. It defines the powers of the constituent elements of Canada’s system of government - the executive, the legislatures, and the courts - as well as the division of powers between the federal and provincial governments…. And it governs the state’s relationship with the individual. Governmental power cannot lawfully be exercised, unless it conforms to the Constitution: s. 52(1), Constitution Act, 1982.”

Question 8

What makes up the Constitution?

Answer 8

Written constutituional texts (Constitution Acts, 1867-1982)

and

Texts incorporated by Reference: such as Royal Proclamation of 1763

and

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(2) The Constitution of Canada includes
(a) the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).

Preamble
“Supremacy of God and the rule of law”
ss. 25 & 35
Royal Proclamation, 1763
Aboriginal & Treaty Rights

Question 9

Royal Proclamation, 1763

Answer 9

S. 25 of Constitution Act, 1982: The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from…any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763

The Proclamation must be contextualized within First Nations’ perspectives, which include oral traditions, speeches, and subsequent actions rather than just its written text. The historical interactions between First Nations and European powers shaped the foundational principles guiding land and resource allocation. Before the Proclamation, First Nations maintained their sovereignty despite colonial pressures, believing they had not been conquered.

The Royal Proclamation of 1763 is a crucial document in both First Nations and Canadian legal history. Contrary to common interpretations that view it as a unilateral decree from the Crown, it should be understood as a treaty acknowledging First Nations as active participants in its creation. Between 1760 and 1764, First Nations had options and agency in negotiating their relationship with the British after the latter’s victory over the French. This period led to the Treaty of Niagara in 1764, which, alongside the Proclamation, establishes principles for First Nations self-governance.

The article argues that the Proclamation must be contextualized within First Nations’ perspectives, which include oral traditions, speeches, and subsequent actions rather than just its written text. The historical interactions between First Nations and European powers shaped the foundational principles guiding land and resource allocation. Before the Proclamation, First Nations maintained their sovereignty despite colonial pressures, believing they had not been conquered.

Question 10

Constitution Act, 1867

Answer 10

“Similar in principle” to UK constitution
Unwritten principles

Answer 11

The respondent made an application to the Nova Scotia Supreme Court, Trial Division for an order allowing it “to film the proceedings of the House of Assembly with its own cameras”. The application was based on s. 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression, including freedom of the press. The media have regular access to the public gallery in the House where they may witness the proceedings and they also have access to Hansard, but the House of Assembly, in the exercise of its parliamentary privileges, has prohibited the use of television cameras in the House, except on special occasions. The respondent claimed that it was possible to film the proceedings from the public gallery with modern hand held cameras which were both silent and required no special lighting or electrical equipment. In his evidence, the Speaker indicated that the respondent’s proposal would interfere with the decorum and orderly proceedings of the House. Apart from controlling decorum, the House would have no control over the production and use of the film.

Question 12

Narrow V Expansive definition of the Constitution

Answer 12

Narrow vs. Expansive Definitions of the Constitution

Narrow Definition: Focus on written elements (e.g., Constitution Acts of 1867 and 1982, royal proclamations, treaties).
Expansive Definition: Inclusion of unwritten parts, reflecting inherent powers (e.g., legislative assembly powers).
Importance: Impacts jurisdiction and powers among government levels and institutions.

Question 13

Canadian Constitution Features

Answer 13

Canadian Constitution Features

Combination of written and unwritten elements.

Reflects fundamental national values.

Involves political compromises (e.g., negotiations leading to the Constitution Act of 1982).

Question 14

Royal Proclamation of 1763

Answer 14

Legal Issues: Sovereignty of the British Crown, relationship with Indigenous peoples, territorial boundaries.

Context: Post-Seven Years’ War, assimilation of French colonists, land disputes involving settlers.

Key Outcomes:
Established boundaries for Indigenous territories and colonial governance.

Introduced civil law, later modified by the Quebec Act.

Question 15

John Borrows reading: Discussion of the Treaty of Niagara (1764) and its implications on sovereignty and autonomy of Indigenous nations.

Answer 15

Highlighted that the British Crown’s sovereignty assertion faced resistance from Indigenous nations.
Emphasized the importance of oral traditions and the intent behind treaties in modern legal interpretations.

Discussed in class treaty federalism and the legitimacy of Canadian state authority over Indigenous nations.
Stated that treaties reflect a fundamental delegation of authority, limiting colonial powers over Indigenous peoples. Problematic in operation as we will discuss later on in class.

Question 16

New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the house assembly)

Answer 16

The application was based on s. 2(b) of the Canadian Charter of Rights and Freedoms

The respondent made an application to the Nova Scotia Supreme Court, Trial Division for an order allowing it “to film the proceedings of the House of Assembly with its own cameras”. The application was based on s. 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression, including freedom of the press. The media have regular access to the public gallery in the House where they may witness the proceedings and they also have access to Hansard, but the House of Assembly, in the exercise of its parliamentary privileges, has prohibited the use of television cameras in the House, except on special occasions. The respondent claimed that it was possible to film the proceedings from the public gallery with modern hand held cameras which were both silent and required no special lighting or electrical equipment. In his evidence, the Speaker indicated that the respondent’s proposal would interfere with the decorum and orderly proceedings of the House. Apart from controlling decorum, the House would have no control over the production and use of the film.

Question 17

Royal Proclamation key elements

Answer 17

1. Establishment of Sovereignty:
   o The Proclamation asserted British sovereignty over territories acquired after the Seven Years’ War, particularly in North America.
2. Land Management:
   o It aimed to regulate colonial expansion by prohibiting settlers from encroaching on Indigenous lands west of the Appalachian Mountains without government permission.
   o This was intended to prevent conflicts between settlers and Indigenous nations.
3. Recognition of Indigenous Rights:
   o The Proclamation acknowledged Indigenous peoples’ rights to their lands and established that only the Crown could negotiate land purchases from them.
   o This recognition set a precedent for future treaties and interactions.
4. Boundary Creation:
   o It delineated boundaries between colonial territories and Indigenous lands, attempting to create a framework for coexistence.
5. Legal Framework for Treaties:
   o The Proclamation established a basis for treaty-making between the British Crown and Indigenous nations, emphasizing that agreements should be honored.

SIGNIFICANCE:
* The Royal Proclamation is often considered a foundational document in Canadian law regarding Indigenous rights. It has been referenced in numerous legal cases and discussions about land rights, treaty obligations, and Indigenous sovereignty.
* Its principles continue to influence contemporary legal frameworks and debates surrounding Indigenous governance and rights in Canada.

Question 18

TREATY OF NIAGARA, 1764

Answer 18

• A significant agreement between the British Crown and various Indigenous nations in North America.

KEY ELEMENTS OF THE TREATY OF NIAGARA:
1. Context:
o The treaty followed the Royal Proclamation of 1763, which aimed to establish British control over newly acquired territories after the Seven Years’ War.
o It was negotiated to solidify relations with Indigenous nations and secure their loyalty to the Crown.

2. Parties Involved:
   o The treaty was signed by representatives of the British Crown and multiple Indigenous nations, including the Iroquois Confederacy and other tribes from the Great Lakes region.
3. Recognition of Sovereignty:
   o The Treaty acknowledged the sovereignty and rights of Indigenous nations, affirming their autonomy and the importance of mutual respect in the relationship with the Crown.
4. Wampum Belt:
   o The treaty included the presentation of a wampum belt, which symbolized the two-row principle: one row for the Indigenous nations and another for the Crown, signifying a relationship of coexistence and non-interference.

5 . Commitments:
o The British Crown committed to protecting Indigenous lands and ensuring that settlers could not purchase land directly from Indigenous peoples without Crown approval.
o The treaty emphasized the need for ongoing dialogue and cooperation between the Crown and Indigenous nations.

SIGNIFICANCE OF THE TREATY OF NIAGARA:
* Legal and Historical Importance: The Treaty of Niagara is often cited in discussions about Indigenous rights, sovereignty, and the interpretation of treaties in Canadian law. It laid the groundwork for future treaty negotiations and established principles of Indigenous rights that resonate in contemporary legal frameworks.

• Foundation for Modern Treaties: It has influenced modern interpretations of treaty rights and the legal obligations of the Crown toward Indigenous peoples in Canada.
• Overall, the Treaty of Niagara represents a crucial moment in the history of Indigenous-Crown relations, emphasizing mutual respect and the recognition of Indigenous sovereignty.

Question 19

Sa’ke’j Henderson, on Treaty Federalism:

Answer 19

1. Background:
   o Sa’ke’j Henderson is a member of the Metis Nation and has extensive experience in law, focusing on the intersection of Indigenous rights and Canadian legal frameworks.
   o He often engages in discussions about the historical and contemporary implications of treaties in Canada.
2. Treaty Federalism:
   o Concept: Treaty federalism is the idea that treaties between Indigenous nations and the Crown create a foundational legal framework for governance in Canada. It emphasizes that treaties are not mere agreements but are integral to the constitutional order.
   o Recognition of Indigenous Sovereignty: This concept advocates for the recognition of Indigenous sovereignty and self-determination, asserting that treaties establish a relationship of mutual respect and coexistence.
   o Legal Framework: Henderson argues that the Canadian state’s legitimacy is derived from its recognition and adherence to treaties. This perspective challenges the colonial narrative that often disregards Indigenous governance and rights.
3. Implications:
   o Legal Interpretation: Henderson’s work influences how treaties are interpreted in Canadian courts, advocating for a holistic understanding that includes historical context and Indigenous perspectives.