CANADIAN CONSTITUTIONAL LAW

CLN4U: Unit 2 (Chapter 4)

Rights and Freedoms

Unit 2

Whats Ahead

Chapter Chapter Chapter Chapter

4 5 6 7

Canadas Constitutional Law The Charter and the courts Human Rights in Canada Majority and Minority Rights

Chapter Four Canadas Constitutional Law

Chapter Focus Explain the role of the constitution Explain how constitutional law developed Distinguish law makers powers Explain the role of courts Understand key events in constitutional history

What is the Constitution?

It is the supreme set of laws for the country.

Confederation 1867

All added in 1982

The Importance of the Constitution

Provides the the basic framework for the nations form of government Allocates power to the provinces Sets out the procedures for making laws, and amending them Reflection of society Written and unwritten

The Canadian Constitution

Canadas Constitution is called the Constitution Act of 1867, which was originally called the BNA Act of 1867. It was patriated in 1982 at which time the Charter of Rights and Freedoms was added. The Constitution Act, 1982 replaced the old BNA Act, 1867, by making it a true Canadian (not British) law, and adding the written Charter of Rights and Freedoms.

Sources of Canadas Constitutional Law

There are three sources to Canadas Constitutional law:

The written constitution (Constitution Act 1867, and the Constitution Act 1982.) The unwritten set of rules and conventions in which the system operates. Conventions are practices which have become part of the law. Court rulings that interpret the written constitution.

Constitution Act, 1982

Included Canadian an amending formula

Charter of Rights and Freedoms, and

The Division of Powers

The Constitution Act, 1867 divided the powers of government into two levels: Federal and Provincial. The Federal level of government was given jurisdiction over national concerns, such as Defense, Foreign Policy, and Trade Agreements.

The Division of Powers

The Provincial level was given jurisdiction over regional and local concerns, such as Education and Healthcare. Municipalities were not given powers under the constitution; the provinces created municipalities as an extension of their jurisdictions.

Cities do not have constitutional rights. BNA assigned the responsibility of cities to the Province.

The Municipal Level Of Government in the Constitution

In 1867, 75% of Canadians lived in rural areas.

Today, over 75% live in cities.

Toronto + Montreal + Vancouver = 35% of population

Provinces enacted municipal acts, which:

-allowed municipalities to have jurisdiction over certain services.

-levy (impose) taxes and service charges.

- The ability of a city to pass a by-law (strictly limited by the provincial legislation.)

Canadas Unwritten Constitution

The original document (BNA Act) made no mention of Prime Minister, however it did contain the line a constitution similar in

principle to that of the United Kingdom

Many of Britain's systems were adopted here, and became part of our government

Conventions are unwritten rules of political conduct, over time they become binding. And develop into important principles

An example is the idea that a Cabinet member must resign if he or she does not agree with a decision reached by cabinet, referred to as Cabinet solidarity

Lucien Bouchard

Left Brian Mulroneys cabinet in 1990 after the failure of the Meech Lake accord, went on the become premier of Quebec and led Separation Referendum

The Role of the Courts

The role of the courts is to interpret the constitution and to solve disputes between the levels of government. Judgments made in lower courts such as the Provincial Courts or the Federal Court can be appealed to the Appeals Courts, Supreme or Superior Courts, and ultimately to the Supreme Court of Canada. Judgments made at the Supreme Court of Canada cannot be overturned, and become Legal Precedent and therefore part of Case Law.

Judicial Committee of the Privy Council

Located in London England, this body was part of the British Court system and not a Canadian court. The JCPC was the highest court of appeal for Constitutional matters until 1949, when The Supreme Court of Canada assumed this role. The JCPC overturned a Supreme Court of Canada decision in 1929 with the famous persons case, allowing women to be appointed to the Senate.

Constitution
Unwritten Portion
Canada would be federally united with a constitution similar in principle to that of the UK. -Prime minister, Cabinet...

Constitution Act 1867

-defined the roles & Responsibilities of the levels of government and the structure of the government

Constitution Act 1982

Contains the -What exactly do certain sections mean? Canadian Charter Of Rights and Freedoms -How do we interpret certain sections or words? and the Amending formula and more -What would happen in a case like this?... -JCPC has rendered over 120 decisions regarding constitutional powers.

Court Decisions

Patriation of the Constitution

Patriation of the Constitution

Patriation of the constitution meant that Canadians would fully control the constitutional law, and that they would be able to develop an amending formula for any future changes to constitutional law. Legal Convention had required that the provinces must support any new

amending formula.

The build up
Until 1982, our constitution was still a British statute and changes to it had to be approved by British Parliament. Canada had become independent in many ways, including legislative power (BNA Act 1867), foreign policy (Statute of Westminster, but

Statute of Westminster 1931

After WW1, Imperial conferences were held, where leaders of Imperial nations would meet and discuss issues of common concern. Statute of Westminster 1931 was passed by British Parliament.

It declared Canada, South Africa, New Zealand and Australia as independent in legislative authority and foreign policy.

Newfoundland remained a British dominion until it joined Canada in 1949. Also in 1949, we stopped appealing to the JCPC and the Supreme Court of Canada became the final court of appeal.

Why did the constitution remain in British control for over 100 years?

We left it with Britain because An amending formula (a process for making changes to the constitution once it came to Canada) could not be agreed on by the provinces.

On April 17, 1982, over 115 years after being passed in British Parliament, the constitution was patriated.
Included:
-CCRF -Amending formula

Canada was now fully independent in all areas of law.

Amending the Constitution

Before 1982, modifying the Constitution meant amending the British North America Act, 1867. Unlike most constitutions, however, this Act had no amending formula; changes were enacted through acts of the Parliament of the United Kingdom. To make an amendment, the federal government of Canada would issue an address to the UK government requesting an amendment These in turn, always passed with minimal debate from British politicians.

Amending Formula

Most kinds of amendment can be passed only if adopted by the House of Commons, the Senate, and a two-thirds majority of the provincial legislative assemblies representing at least 50% of the national population. This formula, which is outlined in section 38 of the Constitution Act, 1982, is sometimes referred to as the "general amendment procedure" and is known more colloquially as the "7/50 formula."

Pierre Trudeau and the Queen 1982

Separatism

Throughout these times of constitutional reform, the flame of separation -that never really dies in Quebec- was rising once again.

A little Quebec Politics

Quebec political party at Federal level. Quebec Political party at Provincial level.

In 1976, Parti Quebecois came into power in the province of Quebec. The Parti Quebecois is a political party like the Liberals, Conservatives or the NDP. The priority of the Parti Quebecois (and the Bloc Quebecois) is Independence for Quebec.

Federal Government (only 1, Ottawa)

Liberals

NDP

Green Party

Family Coalition

Conservatives

Bloc Quebecois

Independents

Provincial Governments (10, provincial capitals) NDP Liberals Parti Quebecois Conservatives (only in Quebec) Independents

In May 1980, Pierre Trudeau and his Majority Government, led the fight against the PQ referendum on:
Sovereignty Association: Quebec would be a sovereign (An independent nation in all aspects of law making) but would still be part of Canada on an economic level.

...sounds good

Referendum Results

Under the strong leadership of Pierre Trudeau, the NO side won the referendum by almost 2-1. (67%)

This is impressive because sovereignty association is easy to agree to because you would still be part of Canada. Like having your cake and eating it too, yet the No side still won which meant Quebecers really wanted to be part of Canada under Trudeaus leadership.

In his speeches leading up to the referendum, Trudeau promised a renewed federalism Keep track, were in 1980 now The fight to patriate the constitution and entrench a Bill of Rights is still going.

(what is federalism?)

Months of debate about politics and the Canadian public followed.

Finally in November 1981, the Feds and 9/10 provinces agreed to an amending formula and a Charter of Rights and Freedoms.

1 of 10 provinces was not pleased.

Quebec felt left out of the talks and felt that its concerns/priorities were ignored and didnt want to sign.

However, 9/10 was enough

1983

In 1983, Conservative leader Brian Mulroney became the new Prime Minister of Canada.

Part of his agenda was to appease Quebec since many people felt the whole Constitutional situation was flawed since Quebec didnt sign.

Constitutional Amendments

The Meech Lake Accord (1987)

Allowed distinct society status for Quebec in order to protect cultural and religious aspects of Quebecs society. Gave the provinces more power in the areas of Senate and Supreme Court nominations. Meech Lake failed to recognize the concerns of aboriginal Canadians. Was not ratified by all provincial legislatures before the deadline and therefore expired.

Constitutional Amendments

The Charlottetown Accord (1992)

In addition to Quebecs distinct society status, Aboriginal self-government was addressed. The process for selecting the Supreme Court Justices would be entrenched in the constitution. The Senate would be elected The accord failed by referendum in six provinces and one territory.

1987

The Meech Lake Accord (named after Meech lake near Ottawa) was a package of Constitutional amendments designed to get Quebec on board.

Included was a designation of Distinct Society for Quebec.

All the provinces agreed to the ML accord, but...

Concerns?

Trudeau, although no longer PM, still was a voice, and harshly criticized the ML accord. He believed that granting Quebec a distinct society status was unnecessary and dangerous. Aboriginal groups felt their needs and concerns were being ignored. Again.

Meech lake failedbut why?

When something like this is proposed, it has to be ratified in a certain time frame. Meech lake had 3 years According to the laws of the province of Manitoba, before the province could give its vote to a proposal like this, Public Hearings had to be held. The public hearings could be waived

IF:

All members of the Manitoba assembly agreed to waive them.

Elijah Harper, an aboriginal member of the Manitoba assembly did not agree to waive the public hearings.
Manitoba could not give its vote in the allotted time frame time and the Meech Lake accord failed to be ratified in time.
(Newfoundland also had some timing issues.)

As the member for Rupert's Land, Elijah Harper stalled the Manitoba legislature past the deadline for approval of the Meech Lake Accord

1992
The Charlottetown Accord

Named after the Place where talks were held (Charlottetown, PEI)

Mulroney didnt give up and tried again. Included abolishment of the longstanding:

Power of disallowance:
The feds could strike down a piece of legislation passed by a provincial Gov. within one year of its passing. (last used in 1943)

Aboriginal concerns were addressed, including some Aboriginal self-governing. Included giving more power to provinces in the appointment of senators. Charlottetown Accord failed, defeated in 6 provinces.

1995
Quebec Referendum II

2nd referendum in 15 years.

Quebec was getting really frustrated at the constant failures of meeting their needs.

This referendum was for full out sovereignty. Quebec would be completely independent

This is a huge step (risk). Do you expect more, or less people to vote for seperation this time, over the less risky option in 1980?

The No side won with 50.56% of the vote.

Who Controls Tobacco Advertising?

Ultra vires of federal jurisdiction Violation of Charter (freedom of expression) which includes the right to say nothing.

RJR MacDonald & Imperial Tobacco

Tobacco advertising in Canada

Who Can Make Laws About Guns?

Reference to Firearms Act (Can.), 2000 SCC 31

2 Separate Issues? -Jurisdiction -Purpose

Are the 2 issues related?...does one determine the other?

Figuring out the

-Purpose (what will this law accomplish?)

This really helps decide the issue of Jurisdiction!

depending on what the law does, it might be classified as criminal law or as property law

 Does

the law deserve to be classified as criminal law? Does it reduce crime?

Should

the law be property law since it basically regulates property ownership (and maybe statistically doesnt achieve any criminal law purpose)

Gun Politics in Canada

Issue for discussion

Should the government fund private religious education?