mod 2 - The Canadian Constitution Flashcards
1
Q
A primer on rights
A
- human rights are inherent, universal, interdependent, interrelated, and indivisible (can’t take away one without taking away others)
- the state has: rights and obligations (positive and negative rights)
2
Q
A history of human rights
A
- British North America act 1867
- constitution act (included charter) 1982
- common law: if a statute takes away a civil liberty, courts cannot provide protection (Parliament Supremacy)
- 1930s Nazi Germany, WWII
- 1948 UN declaration of human rights
- 1960 Canadian bill of rights (limited document)
3
Q
What is a law?
A
- all laws are rules, but not all rules are laws
- law is the body of rules that can be enforced by the courts or other government agencies
4
Q
A primer on constitutions
A
- constitutional law is concerned with the rules governing the use of government power (public law)
- constitutions reflect the values that a country regards as important (limited government)
5
Q
Rule of law - Aristotle
A
- if lawmakers are not narrowly constrained by general laws set up in advance, they will be too easily deflected by personal feelings or self interest, and will make unjust decisions
- The rule of law is meant to prevent arbitrary and unreasonable decision making
6
Q
John Finnis - 8 features of the rule of law
A
- Rules must be prospective and not retroactive (can only apply to future events)
- Rules must be capable of being complied with
- Rules must be promulgated
- Rules must be clear
- Rules must be coherent with each other
- Rules must be sufficiently stable to allow people to plan their lives
- The making of orders applicable to relatively limited situations must be guided by relatively general, clear, stable rules
- People with the authority to make or administer laws in an official capacity:
a) must be accountable;
b) must actually administer the laws consistently with their tenor
7
Q
Roncarelli v. Duplessis - rule of law used as a shield to protect a Quebec restaurant owner from the Quebec government’s action in cancelling his liquor license for personal reasons
A
- Mr R. owned a restaurant in Montreal (in operation since 1912)
- Jehovah’s witnesses were distributing religious tracts on the street, tracts were viewed as seditious to Quebec’s Roman Catholic population (violent protests)
- Mr R. provided bail for 380 Jehovah witnesses (Quebec premier not pleased)
- his liquor license was revoked by Quebec’s liquor commission (must be discretion - the decision must be based upon a weighing of considerations pertinent to the object of the administration “good faith”
- do deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred (therefore offends the rule of law)
- appellant sued for loss of profits from business
8
Q
Re Manitoba Language Rights - the rule of law, Supreme Court provides its most elaborate mediation to date the meaning of the rule of law
A
- Manitoba act 1870, can use French or English in House, courts, acts of legislature published and printed in both languages (consistent with constitution act)
- the official language act, 1890 (English) stopped publishing in French, this act was challenged numerous times and ruled unconstitutional, invalid under s. 52
- Governor General referred to SCC:
1. Are the provisions mandatory? (Yes, need both languages, s. 133 constitution and s. 23 Manitoba act)
2. Are statutes/regulations invalid? (Yes, temporarily invalid)
3. Are they of any legal effect? (No, but a legal vacuum = chaos)
9
Q
Rule of law takeaway
A
- Law is supreme over government and private individuals (no one is above the law)
- Rule of law requires the creation and maintenance of an actual order of positive laws which preserve and embodies the more general principle of normative order
- per SCC in Re Manitoba language rights: “the rule of law expresses a preference for law and order within a community rather than anarchy, warfare and constant strife. In this sense, the rule of law is a philosophical view of society which in the western tradition is linked with basic democratic nations” (concerned with arbitrary use of power, promotes law and order, constitutional norm)
10
Q
Constitutions can be:
A
- written or unwritten
- flexible or rigid
- regulates the state: customs (responsible government political parties - unwritten), conventions (dissolution of Parliament Prime Minister and Cabinet - unwritten), laws (25 primary documents, case law - written)
- expresses a nation’s values (democratically elected representatives, non-partisan administration of law, division of powers, self-government, revolution)
- separation of powers (legislative, executive, judicial)
11
Q
History of Canada
A
- in 1867 ON, QB, NS, NB formed dominion of Canada (did not intend to sever ties with British)
- British North America act did 12 things
1. Created the federation
2. Gave parliament power to create provinces
3. Gave parliament power to set up SCC
4. Set out division of powers
5. Granted Quebec distinctive civil law
12
Q
When each province joined the confederation
A
- 1870: Manitoba and NWT
- 1871: British Columbia
- 1873: PEI
- 1880: Arctic islands
- 1898: Yukon Territory
- 1905: Alberta and Saskatchewan
- 1949: Newfoundland and Labrador (last province to join)
- 1999: Nunavut
13
Q
WWI and WWII
A
- 1914, WWI Canada joined as an independent nation
- 1931 statute of Westminster (gave Canada full legal independence)
- 1939, WWII
- 1949, constitutional amendment
- 1982 constitution act, ends ties with Britain
14
Q
Old to. New constitution
A
- old constitution + some small deletions + five important additions
1. Established 4 legal formulas/processes for amending the constitution
2. The first three amending formulas entrench certain parts of the written constitution (Place them beyond the power of parliament or any provincial legislator to touch)
3. Sets out the charter of rights and freedoms
4. Gives provinces power over natural resources
5. Indigenous populations granted explicit rights (1982)
15
Q
Three provisions of constitution
A
- The charter’s guarantee of certain rights and freedoms shall not be understood as to revoke or devalue from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada
- Existing aboriginal and treaty rights of aboriginal peoples of Canada are hereby recognize and affirmed (Indian, Inuit and Métis peoples)
- The amending formula was used for the first time to add to the aboriginal and treaty rights of Canada’s native peoples, rights or freedoms that already existed by way of land claims agreements or that might be so acquired, and to guarantee all rights equally to men and women (also provides for English and French versions of the whole written constitution)
