Midterm Flashcards
(146 cards)
1
Q
What is Law?
A
A subset of rules and are differentiated in the formalities of documentation and enforcement
2
Q
Physical Laws
A
Laws of nature in physics, chemistry, and biology
3
Q
Normative Laws
A
Some of the rules governing human conduct made by humans
4
Q
Which type of Laws can be broken?
Physical or Normative?
A
Normative Laws
5
Q
Why are some normative rules laws?
A
They created a code of behaviour with sanctions for failure to live by that code
6
Q
Who creates Laws?
A
Politicians
7
Q
Are Laws value neutral?
A
No, they manifest from the political/philosophical/social values of the law maker
8
Q
What are the two parts of the legislature?
A
- Legislative assembly who are elected to position and are politicians
- The monarch: King Charles, governor general (federal), lieutenant governor (provincial)
9
Q
Whose the current govenor general?
A
Mary Simon
10
Q
Whose the current lieutenant governor?
A
Anita Neville
11
Q
What is jurisprudence?
A
Manifestation of politics
The study, knowledge, or science of law
12
Q
Natural Law
A
Asking the question “What should the law be?”
13
Q
Old School Natural Law
A
Law should be based on eternal fundamental truths inspired by God
14
Q
Diestic Natural Law
A
Law rests NOT on devine inspiration, but on the assumption that rational people, by applying their inheritability’s of reason and logic to their perception of the world, will arrive at basic principles of justice
15
Q
Legal Positivism
A
Concerned with “What is the Law?”
Doesn’t evaluate the law, it wants to be value-neutral and identify legal principles
Applied the scientific method
16
Q
What are the two steps to the legal positivism process?
A
1) locate the holder of power (sovereign)
2) identify and interpret the law as created by the sovereign authority under different methods and different cases
17
Q
Legal Realism
A
Concerned with “Why is the law what it is?”. They don’t look at what the rules are, but they have to be positivists in order to look at why the law is created.
Also uses the scientific method
18
Q
What are the purpose of law in society?
A
Law provides consistency and guidelines for indivudals to follow
19
Q
Just Society: Liberal Capitalist Society
A
Economic analogue of liberalism
Market Economy - driven by profit and exchange freedom without government intervention
Private Property - you have something to trade, but is it socially just? 2% of the population owns 95% of the property. How is capitalism just? Maybe because it is the best of alternatives
20
Q
Just Society: Marxism (NDP)
A
- believe in an equality of condition, no one gets more than the other
- Formula: from each according to ability to each
- Private property and capitalism are tools of economic oppression
- Exploited, believe in the eradication of private property
21
Q
Just Society: jeremy Bentham
A
Principle of utility: the greatest happiness and the greatest number
Problems: how do you measure happiness? lots of subjective flexibility
22
Q
Just Society: Social Engineering: Roscoe Pound
A
- A scientific study of peoples needs and expectations and of prevailing values, more rational adjustments of the right given to competing interests could be made to improve the lot of society
- Reflects a Bentuamite influence
23
Q
Does the law influence the development of society or is it a relfection of changing value in society?
A
- even if society does not have these values, the law affects the values of society
ex: law has changed our views on drinking and driving laws and consequences are more severe - Laws often created by vanguards and lobbyists
24
Q
Can scientific method be used to improve the quality of law making or are scientific methods neutral instruments to be used by social groups?
A
ex: climate change issue
- Scientific methods are often misused, abused, and misinterpreted
25
If scientific methods can be effective in exposing society's ills is there a danger that they will destory the myths upon which society depends?
- Myths: similar cases are treated similarly
- However, sentencing and probability of conviction are much higher for minorities therefore you can destroy myths
- Scientific study can destroy the myths - law varies between groups
26
Substantive law
the rights and duties which person has in society. concerned with liabilities
27
public law
concerned with the conduct of government and with relations with government on oneside and private persons on the other. Divided into criminal, constitutional, administrative laws
28
Procedural law
the process through which liabilities can be enforced
29
private law
composes the rules governing the laws between private person when disputes arrive, the persons involved may go to the court to have their rights (liabilities) decided by the rules of private law. These rules are the basis substance of contract law, tort law, property law, and civil law
30
Civil Law
Relies on code
31
Common law
Relies on precedent cases. an exposition of law which are contained in case reports
32
Courts
- mechanism of settlements of disputes (most formal method)
- Judges determine facts and apply legal principles (adjudication)
33
Other institutes besides courts that do dispute resolution
Arbitrators: always get fee in advance because loser will not be happy
Mediator: appointed by statue or agreement, can only suggest a solution
Conciliation: gets the party talking but cant suggest anything
Settlement: disputes resolved but not by the courts, however they pay attention to methods resolved by the courts
34
Which province isnt common law
Quebec
35
Which state isn't common law
Louisiana
36
Decided on the basis of previous principles
Stare Decisis
37
The one suing
Plaintiff
38
Ratio Decidendi
The narrowest and necessary legal principle upon which the decision was based
- The point in the case that determines the judgement
Every other statement is Obiter Dktum - the non-binding aspect of a case
39
Two types of cases
1. Cases regarding legislation
- interpreting legislative instruments and seeking to discern the intent of the legislation and effort of law as formulated by legislation
2. Judge made/Common Law
- Court rather than interpreting and applying legislatively created law is declaring the law in areas untouched by legislation
- Further subdivided into 2 categories: the common law courts, and the law of equities. (these form the common law)
40
King created all laws, name?
Fountain of Justice
41
The king had too many cases so he appointed the chancellor. Name?
Court of chancery or court of equity
42
Judicature Act
One set of courts simultaneously
Our current system
43
Legislature produces laws known as
Statutes or acts
44
How many legislatures in Canada?
11
45
Definition of a Statute or Act
a pronouncement by the sovereign in parliament
46
What is a bill?
A draft of a statute
47
Mutatis Mutandis
With necessary changes being made. All necissary changes have been made to statutes of Canadian parliament and provincial legislature
48
3 Instutitions that make up parliament
1. In UK:
- monarch - king
- upper house
- elected assembly (house of commons) (lower house)
2. In Canada
- Monarch (Governor General)
- Upper house - senate (appointed)
- Elected assembly - House of commons (MP's, approve all statutes)
3. Provinciual Legislature (MB)
- Monarch (Lieutenant govenor)
- Upper house (dosen't exist)
- legislative assembly (politicians, statutes start here)
49
Delegate bodies produce Subordinate (delegated by the legislation) Legislation. Definition?
legislation made by a person or body, other than the sovereign in parliament by virtue of powers conferred either by statute (delegated legislation) or by legislation (sub-delegation) which itself is made under statutory powers
50
Examples of Bodies
School boards, municipalities, police depts, fire depts
51
Cabinet
Recipient of power from statutes
52
Other names for subordinate legislation
rules, bylaws, ordinances
53
Two principles of law that form administractive law
1. Delegate bodies can only create legislation within the jurisdiction given by statutes
- anything else is ultra vires (beyond power/jurisdiction) is void (has no force or effect)
2. Delegates can't delegate - delagatus non potest delagare - cant further delegate their power
54
Intra vires
within the power, the jurisdiction
55
Why was there a increased demand for law?
The Industrial Revolution provided the wealth and the problems.
56
Blacks Law Dictionary:
- a system is an orderly combination or arrangement as of particulars parts or elements into a whole, especially such combinations according to some rationale or principle
- the essence of a system is the rationale and/or principle according to which various related matters are arranged
57
Civil Law
more ancient of the two systems
- The essence of the civil law system is the existence of the code
- No doctrine of precedence
- always refer to a code to access a principle to settle a dispute. Only if the code does not cover the new problem is the court free to settle the problem from the introductory general principles
58
Codification
The process of collecting and arranging the laws of a country or state into a code, that is into a complete system of positive law; scientifically ordered and promulgated by a legislative authority
59
Weaknesses of Civil Law
1. Absence of doctrine of precedence, which removes certainty from the law
2. In new areas of development where there aren't specific principles; the application of the general principles is illusory (gives judges freedom)
To ameliorate these difficulties, certain practice amendments have been made
1. There are frequent revisions to the code, so in newly developing areas of the law, there are up-to-date principles. These revisions are usually based on decided cases
2. There is a growing tendency by the courts to apply precedence. Lawyers argue them; judges read them, wit the results that nevertheless precedents are applied with upon commitment greater certainty and predictability
60
Common Law
(not as certain as we think)
- applies to court created law, how they are applied. It applies to certain statutory laws as well
- based on precedence that was organized
61
Rupert Cross's jurisdiction
Every court is bound to follow any case decided by the court above it in the hierarchy of course, and the pellet (appeal) are bound by their own decisions, except in the supreme court of Canada (not bound by precedent, could change their minds). However, it does not indicate, the only binding part of the case, the ratio
62
What needed to evolve before the Common Law system could be effective?
1. Literacy amongst the general population and judges
2. A system of publishing precedent cases (law reports), essential to the discussion of the judges finding s and discussion of law
3. Wide spread distribution of precedent cases
63
Law reports: published reasons for judgements given by a judge. Has individual case reports
1. Summary of facts
2. Discussion of Law
3. Resolution of case
64
Two aspects of doctrine or stare decisis
1) Definitional or Substaintial
- the principle of law is found in the precedence called the ratio decidendi
- the binding part of the case is the ratio decidendi
- Always therefore subject to argument and debate until the court tells us what the ratio is in another case. In the civil law system it clearly articulates what the precise principle is, so there isnt the certainty that some commentators make about the common law systrem. It allows flexibility for some judges that aren't as well informed but it undermines the certainty that the doctorine of precedence shoud contain. Obiter dictum: statements by the way
2) Structural
- What precedent cases do we follow?
every court is bound to follow any case decided by a court above it in the hierarchy of courts and appellate courts are bound by their own decisions save and except the court of Canada and the House of Lords. The only part of the case that is binding is the ratio
- There is a hierarchy of courts
65
Hierarchy of Jurisdiction
1) Provincial Courts - narrowest jurisdiction ex: family court, juvenile court, small claims court
2) Court of queens bench - appointed by fed gov
3) Court of intermediate appeal - must be exercised in 30 days
4) supreme court of Canada - final appellate court for all jurisdictions in Canada. Unifying function
5) JCPC (judicial committee of the privy council) - ended in 1949 and still can be binding precedence in canada
66
The 3 C's of Stare Decisis
Certainty: We must know what the law is
Consistency: equality of treatment should be sought with similar cases being treated similarly
Continuity: We must avoid the disastrous inconvenience of introducing douvt into the law
- The reliance principle: that is the principle that people order their affairs in reliance on judicial decisions and therefore their interest should be adversely affected if judges altered principles
67
Problems with Stare Decisis
1) because you follow pre-existing decisions, if one court makes an error and makes a bad principle, it will persist for a long time
2) The principles or ratios themselves in the common law aren't that clear
68
Emergence of Stare Decisis from custom to law
- historically the doctrine of stare decisis operated on a rule of customer. in the 19th century the house of lords accepted the doctorine of stare decisis and proclaimed it law
It was accepted due to:
1) Industrial Revolution
2) intellectually rationally and positivism was becoming ascendant
3) commercial printing had become even more developed and greater distribution systems were available
69
Convergence of systems
The civil and common law systems are growing similarly. You'll find the law almost the same within Canada and Quebec systems, this is because there is pressure on the two systems
- common law looks more like civil law and vice versa
- Civil law system now uses precedences
- Common law system simultaneously finds a greater use of codes
70
Courts
Institution of dispute resolution
71
Other institutions that make/resolve disputes
Arbitration, mediation, reconciliation, settlement
72
ADR
Alternate Dispute Resolution
- using private procedures
such as arbitration
- cost effective, confidential, fast
73
Settlement
Making a deal/contract for resolution
74
Concilliation
Professional Facilitator assists in dispute resolution
75
Mediation
Intervention to come to a resolution
76
5 roles of the court
1) Arbitror of the constitution:
- Fed parliamentary powers are GST, military, post office, currency, national defence, penitentiaries
- Prov gov controls health care, education, taverns, highways and liquor
77
quasi federal
government of two levels of which are independent and each is assigned a different jurisdiction
78
5 Roles of the court
2) Interpreter of legislation:
- Give meaning to terms in the context of disputes
- when interpreting legislation:
1. plain meaning approach - dictionary definition
2. Mischief/liberal approach - purposive, they look at the object of the statutes in the context it was created
3. Golden rule - use plain approach and if necessary go to the liberal approach
79
5 Roles of the court
3) Protector of civil liberties: (traditionally refers to the freedom of the individual in politics and religion)
These terms have embraced:
- freedom of expression, both of speech and the press,
- freedom of association and assembly
- freedom to practice and preach ones religion
- freedom from arbitrary arrest, and
- the right to a fair trial
80
5 Roles of the court
4) Arbitror of disputes between private persons
private law, people go to court to have their disputes resolved. This gave rise to contact law, tort law, family law etc
81
5 Roles of the court
5) Arbitror of public law disputes
government on one side, including criminal law, constitutional law and administrative law
82
Adversary System
Characteristic of the courts system, not really a system
- In civil disputes it means that it is generally up to the parties, not the court to initiate and prosecute litigation to invetigate the pertinent facts and to present proof and legal argument to the decision-making tribunal
83
2 Assumptions of Adversary system
1) The factual proof and appropriate law is more likely to emerge from bilaterl investigation and presentation motivated by the strong pull of self interest then from judicial investigation motivated only by official duty.
- There is an element in the adversary system of individualism much like capitalism
2) The moral force, legitimacy, and acceptability of a decision will be greatest when it is made by one who does not have and does not appear to have the kind of psychological committment to the result that is implied in initiating and conducting a case
84
Why does the adversary system not always work?
1) people arent of equal means (poor, middle class, rich) - if youre rich, you can hire better council to represent you
2) Lying and covering up evidence
3) Self interests can create abuses of procedures
85
Do we have the adversary system in Manitoba?
We dont have a pure adversary system.
- Lawyers wont do the case if he knows the client did it or is lying
- Judges will move the case along
86
Canadian Court system
- Court system is organized according to the constitution
- Provinces have jurisdiction over the administration of justice including the organization and operation of police forces and the system of courts
- Federal parliament has the exclusive right to appoint and pay all county court and superior court judges, though the former and now phased out
87
3 tiers of court in Canada
1. Courts of 1st instance (trial courts)
a. provincial court - (ex traffic court, small claims court, youth court) - established by provincial legislature (judges appointed by the province)
b. Court of Quens bench - as the superior court is has plenary jurisdiction over trial (judge appointed by feds). This is where the matter is first heard and an attempt is made to resolve the dispute
- if you are not happy with the decision, you have an automatic appeal -> court of appeal
88
The person that brings the lawsuit
Plaintiff
89
The defending person
Defendant
90
3 tiers of court in Canada
2. Court of appeal
the individual who is appealing the case is called the appellant and the person defending the appeal is the respondent. Anyone can appeal.
- here you dont hear evidence, only principles of law
- If you still are dissatisfied you then must be granted appeal to the Supreme Court
91
3 tiers of court in Canada
3. Supreme Court of Canada
- Prior, the JCPC was the final appellate court.
- Tribunal in the UK, all members were judges, one report and could easily find ratio.
- It is a leave court -> you need special approval and application
Made of 9 members, 3 from Quebec
92
Who appoints the judges?
- Supreme court of Canada is appointed by prime minister
- Generally appointed judges think the same way as the PM
93
Federal Court
- replaces the exchequer court (tax court)
- was expanded beyond tax to trademark, patents, copyrights
- Problem is it creates a lot of chaos because you dont know what to sue and sued in the wrong court.
3 divisions: federal court of trial, federal court of appellate divison, supreme court
94
Statutes of Limitation
People may appeal the decisions made up to 2 years for torts and 6 years for contract matters
95
Who may sue?
1) All legal persons may sue, even corporations
2) Must have standing: if you have a special interest to be vindicated
3) Class action: one individual represents a group or class of individuals with the same issues, this helps stop clogging of courts
96
Procedural Law:
How to engage the law and how to move it along to achieve the remedy in respect to substantive law (liability)
97
Stages of Lawsuit
1. To engage the court
- Plaintiff issues a statement of claims (describes wrong doings to defendant, has to be served within 6 months, has to be registered by the court)
- includes name of plaintiff and identity, the defendants name and identity, all material fact you rely upon
- Normally there is a bailiff to serve the document and sign it
- 20 days to respond, 40 if outside province
98
Stages of Lawsuit
2. Defendants issue/file a statement of defence
- If the defendant does not file this within 20 days, the plaintiff automatically wins
- Statement of facts
99
Stages of Lawsuit
3. Examination for discovery
- Each side gets to ask the other side relevant questions, so both sides have the opportunity to have all the information of the case
- More likely to achieve settlement
100
Stages of Lawsuit
4. Pre-trial conference
- Judge mets with the parties in their chambers to discuss case
- Lawyers submit briefs on the matter and the judge then in advance gives you an idea of what will happen to try and achieve settlement
- If this fails, trial date will be set
101
Stages of Lawsuit
5. Trial
- The plaintiff puts in their case first, then the defendant puts in their case and there is cross examination
- Plaintiff has a chance to respond to new issues made
102
The courts of Canada award costs to who?
the winner of the trial
103
Lawyers are known as
barristers and solicitors
- barristers go to court and solicitors do everything else including hiring your clients
- solicitors instruct barristers
104
The Canadian Constitution
- The constitution reflects the relationship between law and politics
- Rules of Canada
105
What is the constitution
- Creates organs, institutions of the country that both create and administer law
106
A consitution must
1. Provide for the of basic organs and institutions of public authority (legislature/parliament)
2. it must define the powers possessed by each public instituion and in some respects define relationships between various institutions (assigning powers)
3. must provide for the process by which law is created, and at the same time provide for the limitations on the power
- assigned legal responsibility, defines the limits of authority, and establishes the processes which must be followed before this authority can be exercised
4. must provide a method of change, both of political leadership and of the basic constitutional framework, the latter by way of amendment to the constitution
107
Where do you find the canadian constituion
The Canadian constitution isnt neatly contained in a specific document
- Much of the constitution isnt law
108
The nature of a constitution
primarily about the political power, the location, the conferment, the distribution, exercise and limitation of power among the organs of the state
109
Constitutionalism
legitimate actors in the political system have only such authority as is vested in them by law and that any attempt to move beyond the peripheries of these authorities is illegal or
ultra vires: beyond the power, and therefore void
110
Case of DuPlessis
No official has any authority to act unless empowered by statute
111
S52/3
Gives federal court jurisdiction over other courts (emergencies act)
112
Bona Fides
Good intention
113
Mala Fides
Bad intention
114
Authoritative sources
create constitutional rules which are law because they are enforceable in the courts
115
Persuasive sources
create rules of the constitution which are not a part of the constitution. Meaning, the courts wont enforce the because they are not law
116
Entrenchment
there are certain provisions in the constitution which are beyond the normal control of either the federal parliament or the provincial legislatures
- certain provisions of the constitution are regarded as so significant and so important that they can only be changed by extraordinary processes
117
De Jure
At law
118
De Facto
In Fact
119
Patriated
amendment process for entrenched parts of constitution are wholly domestic
120
Legislatures
Create statutes that are constitutionally relevant to Canada
a. UK parliament has produced legislation/statutes of significance to Canada
BNA act - laid out framework for our constitution: courts created, supreme court created
Constitution act 1982 - charter were created as well as allowed for domestic ammending process
b. Canadian parliament
- some is entrenched:
1. election act
2. canadian bill of rights
3. all statutes creating other provinces
4. supreme court is also entrenched
c. provincial legislatures
- all created constitutional law
- provides legislature of each provinces to make laws of the constitution laws of the province
- each province has the ability to make constitutional law, none of it is entrenched except the office of the lieutenant govenor
- to change any offices required unanimous provincial consent and consent of fed parliament
- major change was elimination of upper house
121
Courts
Produce constitutional law in accordance with common law
- interpret constitutional statutes
- once they have given meaning to the charter, thereby creating law, then it is then only amendable through one of the amending formulae
122
Royal Perogatives
independent source of constitutional law
- residue of the legal power residing in the crown and passing through the crown to the crowns representatives
- contemporary residue of those ancient powers not taken away from statute and include the power to:
a. appoint the first minister
b. dismiss the first minister
c. dissolve the elected assembly
d. declare war, and the power to appoint ambassadors
123
What were these ancient powers?
- William the Conqueror came over and became the monarch's absolute powers
- Magna Carta (big charter)
- Forced the king to surrender some of his powers to get money
124
Persuasive sources important to the constitution but arent enforced
1st convention
- some of most important principles are conventions, which guide politcal actors in how they function but are not enforced by the court and thus are conventions of the Consitution
- not contained by any writeen document, but are generally accepted traditions and principles
- conventions are neither created by the courts nor enforceable by the courts
- some conventions are more important then most consitutional laws
- constitutional conventions + consitutional law = total constitution
Other persuasive sourced
- authors
- parliamentary rules
- relevant judicial decision from other jurisdictions
125
What is federalism
- the method of dividing powers so that the general and regional governments are each within a sphere coordinate and independent
- the existence of federal principles in a country allows it to be regarded as a federal state
126
In a federal system, if we are truly federal
the two authorities are coordinate that means in essence tht neither is legally subordinate to the other
- In a unitary state, government power is vested in one national authority; there are municipal government with powers over their localities but differ because they are legally subordinate to the national authority; can amend, control or take away there power (ex UK)
- In a federal state it is common to speak of different levels of government. The notion fo equality of status does nto necessarily extend beyond the legal format
127
Key point of federalism
the legal guarantee of a legal autonomy to each of the regional authorities in respect of the areas which consitutite their jurisdiction, however dispirit in size and wealth those regional authorities may be, which justifices their description as coordinate with the central authority
128
Doctrine of Paramouncy
req's that federal law prevails, but regional authorities are not legally subordinate
129
2 Corollaries
1. To be truly federal, a final arbitrator of constitution is required which neither level of government alone can control or appoint
2. Method of constitutional amendment in areas related to the division of power is required which neither level of government can control
130
Is canada a federal country?
Yes
131
Whose the final arbitour
Supreme Court
132
We are a federal country:
1. We are subject to the laws of 2 authorities and jurisdictions assigned to both
a) pronvincial areas of jurisdiction: property rights, education, health care
b) federal legislation: military security, post office, taxes, weights and measures
2. statutes are entrenched
3. the existence of the amending formulae
4. the colonies are to be federally united
5. There were judicial decisions that consolidated federal realities
a) 2 most important decisions were given by the JCPC
- Hodge v the queen 1883
- ratio: provinces are not delegates of the federal parliament; the provincial legislatures re in their own spheres supreme
- The JCPC made us more federal because it was a truly an indepentent arbitrator
- Now it is the supreme court, appointed by the PM
133
We are not a federal country:
Canadian constitution is quasi federal in law and predominantly federal in practice: meaning that canada isnt federal, at best in law its quasi federal
1. Power of disallowance
a) the fed gov is given the power to disallow any act passed by prov legislature
2. the federal government is given the power to appoint the lieutenant gov of each prov and provinces are denied the ability to alter the office of the lieutenant gov, who has a significant impact on prov legislature
3. Charter of rights
a) the judiciary is empowered to trespass on prov legislative jurisdiction if the provincial legislation dosent meet the charter
b) judges can compromise a great deal of provincial jurisdiction and they are federally appointed
4. amendment process
a) the 1982 amendment has made the process more federal as the formulae to amend the entrenched aspects of constitution are beyond the control of either level of government
134
Why do we have this style of federalism?
- it was a compromise
- threat from US invasions
- economic reasons: need for larger markets
- common history and traditions, the growth of nationalism on the international scale
- sheer size of composed country
135
Responsible government is the single most important achievement because:
1. it is an example of how significant conventions are to the constitution
2. it illustrates how important constitutional principles were inherited from great britian and the pre-confederation period
3. it is the mechanism thay ensures the democratization of exclusive government in the country
136
The most important is the 3rd reason because:
- the crown/monarch have great deal of authority
- can lead to a declaration of war, control the budget, elect judges, has been the recipient of a great deal of delegate power through statute, they can generate a lot of subordinate legislation
- In a democracy you want concentrations of power to reflect the democratic power of the people
137
Responsible Government
- provides the linkage between the legislative institutions and the executive institutions and ensures an element of democratization to executive government at least in selection principle, (de facto executive) at least to the degree that the legislative branch is selected according to democratic principles
- the appointment of persons to the executive who sit in the elected assembly and who have the support of the elected assembly. An analogue to this is that the monarch or representative in giving ascent must follow the advice of the executive rather than his or her own personal predilection (bias). Means the must have support of the elected assembly
1. The leader of the political party with the largest number of seats in the house of commons is appointed PM/premiere
2. The monarch or represetative must, with few exceptions, act under the advice of the PM in cosenting to legislation or exercising prerogative and executive powers
138
How did the 1982 constitution alter the constitutions?
1. provided for a domestic amending process for entrenched aspects of the constitutions, this was to patriate the constitution
2. provided for a charter of rights
3. provided there be a conference for the rights of aboriginal people
4. allowed UK parliament to sign off
139
Constitutional amendment process
- did not create a new constitution
- significant changes came from the amendment process
- the process became wholly domestic
the parts of the constitution which could not be altered were entrenched
- prior to 1982 the extraordinary process was the imperial parliament
- the formal authority was the imperial parliament; however the imperial parliament was tightly ruled by conventions of the constitution, which made the imperial parliament essentially an instrument of canadian will
140
entrenchment
there are certain provisions in the constitution, which are beyond the normal control of either the federal parliament or the pronvicial legislature that is to say that certain provisions of the constitution are so significant and so important that they can only be changed by an extraordinary process
141
how was the ammendment process altered in 1982?
1. it was said to be patriated, it became whole domestic with no need to seek the formal amendment from the imperial parliament
2. The britished statutes with constitutional relevance to Canada were entrenched in their totality
3. Certain canadian statutes were entrenched
4. two domestic amending formulae were defined to replace the imperial parliament
a) general procedure
- resolution of the senate and house
- resolution of the legislative assemblies with at least 2/3 of the provinces with 50% of population called the 7-50 rule
b) unanimity provision
- separates out certain things that are so important that the general procedure isnt applicable, required the unanimous approval of all the provinces. applicable to:
- morachy and its representatives
- use of english and French
- composition of Supreme Court
- amending formulae cannot be changed except with unanimous agreement of all 11 legislatures
142
Patriate
The amening process with respect to entrench aspects of the constitution is made wholly domestic
143
Charlottetown Accord
- quebec never approved the accords
- mulroney wanted to get quebec into the constitutional family, but quebec wanted the ability to veto
- mulroney in a compromise wanted to say that all provisions could have veto
- throufgh charlettetown accord, he decided to add a distinct society clause for quebec, but it failed, so nothing has changed
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The charter of rights
contained in the constitution (entrenched)
- the standard to which we measure law, and the judiciary determined inconsistencies
it contains:
- freedom of conscience and religion
- freedom of thought and press
- freedom of association
- legal rights
- mobility rights
represents a massive transfer of power from the legislature to the judges
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The charters limitations
- in the preamble: they are subject to reasonable limits and it is up to the judiciary to identify what those reasonable limits are, also allows certain parts of the charter to be declared inoperative
- preservesa. level of parliamentary supremacy
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Restall's paper: 4 reasons the charter is revolutionary and inappropriate
1. Revolutionary to the extent that it is a revolution of constitutional principle. Judiciary is not electorally responsible to any constituency, principle of parliamentary supremacy and democracy are eroded
2. Revolutionary because of its unknown and radical impact
3. The Charter of Rights violated the constitutional and cultural principle of federalism to the extent it is in Canada. It is centralizing and homogenizing creating genralized national cultural standards in areas formerly under exclusive provincial jurisdiction
4. Cultural revolution, because the charter is inconsistent with the basic political, cultural and philosophical nature of the country
