Constitutional Law Flashcards
Royal Proclamation
- Officially recognized that the native peoples have the rights to their ancestral lands and that government representatives are the protectors of this right.
- All common law in England was applicable to all British controlled territory in N.A.
- Gave the grown and gov. ownership of all non-privately owned land.
- The British Monarch held excluding rights to enter into negotiations with Indian peoples.
- Indian hunting grounds would be preserved (until treaties were signed).
Statute of Westminster
- Passed in 1931
- Gave Canada control over it’s foreign affairs
- Under the Statute, Canada and other nations were given freedom to pass laws of their own without the consent of British Parliament (also amend and appeal)
Constitution Act (1982)
- Constitution Act of 1982 came into force on 17 April 1982.
- The Act forms a part of the Constitution of Canada and is itself comprised of 7 parts.
- The 1982 Constitution also included the “Charter of Rights and Freedoms” which was the first time a set of rights were codified at the Constitutional level in Canada. Includes our fundamental freedoms.
BNA Act
- Comprises a major part of the Constitution of Canada.
- The Act entails the original creation of a federal dominion
- Sets the framework for much of the operation of the Government of Canada, including its Federal structure, the House of Commons, the Senate, the justice system, and the taxation system.
- Division of powers between federal and provincial governments
Define constitution. Why is it necessary in the governing of a nation?
In order for a constitution to be considered ‘valid’, it must include 4 elements:
- Principles + objective of the political life in a society
- If a federal gov., the outlining of the division of power (BNA S.91+92)
- Definition of the relationship between the government and its citizens
A constitution is a legal framework/guideline that establishes how authority and power within a country is exercised. It also assigns the limits of power.
Significance of S. 91 and 92 of the BNA Act? Why is it a necessary element for the success of the act?
- These sections deal with the specific responsibilities of the federal and provincial governments
- Section 91 gives the federal government the power “to make laws for the peace. order, and good government of Canada”. It defines and outlines the responsibilities and duties of the federal government (armed forces, census, trade btwn countries, land claims etc.)
- Section 92 defines and outlines specific powers given to prov. governments in which the federal gov. may not interfere. (provincial taxes, licensing of shops/bars, civil + property rights etc.)
- Prevents chaos and confusion/conflict among provinces and federal government.
- It provides provinces to pass laws within their jurisdiction as they wish without interference from the federal government without conflicting with the laws of other provinces.
e. g. French language majority.
Define ultra vires and ultra vines.
- Ultra vires refers to a law that may exceed the power of the courts/government. e.g. if the agency cannot question the suspect (minor, need parent present), such questioning would be ultra vires.
- Intra vines refers to a law that is within the jurisdiction of the government/courts. e.g. if a law enforcement agency is allowed to question a suspect, such questioning is intra vires.
Importance of S.1 of the Charter? What controversies surround it?
- S.1 is the Reasonable Limits Clause
- Terms “reasonable” and “demonstrably justified” were not defined in the legislation. It was up to the courts to interpret their meanings.
- The Reasonable limits clause allows the government to legally limit an individual’s Charter rights (hate speeches).
- The rights and freedoms included in the Charter, although guaranteed, are not absolute.
- The court determines if a limit is reasonable through the Proportionality test.
- But what is a “free and democratic society”? Is it something that can be measured, or is it a hollow feel-good notion devoid of any specific meaning? Is it an ideal with identifiable characteristics, or is it something we are indoctrinated to believe we already have?
Three remedies (for judges)
Strike down - abolish the law
Read in - add something to the law that still affirms the law, but changes the meaning
Read down - remove a word or phrase from the law that still affirms it, but somewhat changes the meaning
Explain two legal rights. Explain when the reasonable limits clause could be applied.
- Freedom of conscience and religion (practice whatever religion they wish without being persecuted for it)
- If Jehovah’s witness refused a blood transfusion on behalf of his child as it is against their religion
- Freedom of peaceful assembly (right to promote, protest, campaign etc. however it is all within reasonable limits).
- Assembly is spreading/promoting hatred.
Three elements of the Canadian Constitution
- Constitution Acts + Amendments: formal constitutional documents have been enacted by Can. or British legislatures for the purpose of setting the country’s constitutional framework (division of powers) and rights of individuals. (BNA Act)
- Unwritten Conventions: rules and norms never been formally written but are regularly observed. Many of these unwritten rules have been inherited from Britain. (practice of responsible government, like Cabinet required to resign if they cannot hold majority support in House of Commons)
- Common law: addresses the disputes of the constitution and provides precedent which is the basis of the Canadian legal system.
Oakes Test and apply it to a case
- Does the Charter apply?
- If so, has a charter right been infringed?
- Does the reasonable limits clause justify the infringement?
- Is a remedy provided under the charter?
In R v. Oakes, they used reverse onus on him, however, he argued that the NCA s. 8 was a direct violation of his right to be presumed innocent until proven guilty. The judge agreed and said the onus is on the Crown to prove beyond a reasonable doubt that he had narcotics with the intent to traffic.
Butler owned a boutique in Winnipeg. The business sold pornographic videos + magazines. The police arrived with a search warrant and confiscated the goods and charged Butler with possession and distribution of obscenity.
R. v. Butler: Issue was does the definition of “obscenity” in the criminal code infringe on s.2(b) of the charter? If so, is it justified under s.1 of the charter? They said while it did infringe his right, it was justified. He argued that the material in question may be saved by merit of artistic expression and has artistic purpose. However the court said that the material minimally impaired his freedom of expression because it is obscene as it contained degrading and dehumanizing acts. The court upheld the laws on obscenity but read down the law to avoid an infringement of freedom of expression. The court held that the provision should be interpreted narrowly to catch only certain forms of pornography. In weighing the harm to society and threat to fundamental values, they found the infringement reasonable.
How has the role of the SCC changed since the Constitution Act of 1982?
The role of the SCC has changed in the way that they hold the most power in Canada – even more so than that of the federal government.
If the gov. wants to pass a law, for example, the death penalty, the SCC would have the final say; they would not allow it to pass as it violates the charter (section 7, everyone has the right to life, liberty and security)
Notwithstanding Clause
- S.33
- Permits governments to override certain rights and freedoms guaranteed by the Charter
- Gives elected officials the ability to overrule the courts, should they determine the need to do so exists
- Immunizes a piece of legislation from being challenges before courts (Quebec language laws)
- Only used by the provincial or federal governments
- Expires after 5 years
- The clause cannot reverse some of the most disastrous Charter rulings, such as Delgamuukw v. British Columbia. In this 1997 case, the Supreme Court set aside the common law rules on property rights in favour of a vague new court-imposed concept of aboriginal title based on an aboriginal group’s historic use of the land. Because of this decision, no one understands the extent of aboriginal entitlement to property rights, particularly in British Columbia. Barring a Supreme Court reversal of Delgamuukw, it could take years of litigation to sort out the confusion caused by this disruptive ruling.
- Violates the rights of individuals that are entrenched in the constitution. In issues like gay marriage, it has been very controversial and arbitrary because of this clause. The clause has broken the stability and reliability created by a fundamental charter like this charter of rights and freedoms.
- Isn’t the point of entrenching rights in a charter that you protect those rights by making the courts the final arbiters rather than the legislatures? If so, isn’t this notwithstanding clause harming the rule of law?
Charlottetown Accord
- Attempted to unify Canada by using the Canada Clause which allows Quebec to be considered a distinct society and Aboriginal rights to be recognized.
- A failed, joint attempt by the government of Prime Minister Brian Mulroney and all 10 provincial premiers to amend the Canadian Constitution, specifically to obtain Quebec’s consent to the Constitution Act of 1982
