Test 2

Question 1

What is a constitution?

Answer 1

It is the highest law of the land. It establishes the fundamental rules and principles by which a state is governed and includes the regime’s basic rules of the game. It determines which institutions have authority to make laws and rules and it establishes the relationship between those institutions and the relationship between the government and the people with rights and freedoms.
Ex: Us constitution drawn up in 1789 and entered in 1795, german basic law 1949 and canada’ constitution act of 1867 established provinces and set out gov. institutions and the division of power between provinces and ammended in 1982

Question 2

What is a constitutional government?

Answer 2

A government that acts in accordance with established rules and principles so the government is subject to the limits of the rule of law. It limits the power of the government and protects citizens of arbitrary action from the government.
Ex: liberal democracies have both a government elected by the people and a constitutional government based on the rights of the people to freely engage in political activities and respect individual rights.

Question 3

Outline the 5 sources of law in order.

Answer 3

Constitution
Statutes and codes
Judicial decisions
Administrative regulations and rules
Conventions

Question 4

What are statutes and codes?

Answer 4

Statutes: laws that govern a particular subject ex: bill 101. they can be considered constitutional because of their importance ex: canada’S election act. Constitutional provisions prevail when there is a conflict between the const. and a statute or code. ex: larry flint vs the people freedom of speech prevailed on the penal code that forbid the distribution of pornographic material.
Codes: a single book of comprehensive legislature-made laws dealing with many subjects in a broad area ex: when qc joined canada it adopted france’s civil law and code that contains most rules governing contract, family relationships , delicts, ect.
They come into force upon the proclamation of a formal act of the federal or provincial legislature.

Question 5

What are judicial decisions?

Answer 5

The courts interpret the meaning of the constitution, statutes and codes and prior court decisions.
Ex: the courts interpret the limitations of the freedom of speech (no one may yell fire if there is no fire)

Question 6

Explain administrative regulations and rules.

Answer 6

Most statutes empower the government to pass regulations under the statutes. These rules set out precisely how clauses in particular codes or statutes to be enforced. Rules drawn up by non elected bureaucrats in special boards or committees to which the government has delegated authority to apply statutes. These rules are then applied by the government cabinet.
Ex: statute bill 101 states that corporations with more than 50 employees must adopt french and regulations drawn up by Office QC de la l fr include how firm francization comittee is to be set up.

Question 7

Explain what conventions are.

Answer 7

They are unwritten rules based on custom or usage commonly accepted in a particular community. They are fundamental principles that are followed even if they are not in a legal document and legally enforcable in courts.
Ex: tradition that gov. stays in power 5 years.

Question 8

Discuss necessary functions performed by all governments

Answer 8

Birth certificate anouncing the creation of a new state or regime :(state and regime: can’s const. bna 1867 and usa 1782 that comes in 1795) (regime: frances 5th republic in 1958)
Source of ultimate authority and legitimacy for a regime. (To help acquire authority and diminish raw poer, dictators have drawn up constitutions that define their position ex: saddam hussein made sure that iraqui presidential office passed a legislation that created an office with his power)
Basic decision making institutions and powers of regime established with 3 elements:
-vertical distribution of power between central and regional levels of government in federal countries (ottawa and provinces, berlin and lander)
-horizontal distribution of power between the 3 branches (legislative parliament or congress, judiciary courts, executive pm and cabinet or president and cabinet)
-monarchy or republic, whether the head of state is hereditary or appointed (can constitutional monarchy, germany president appt. by ass. of delegates from lander, president elected usa)

Question 9

Define optional functions of a constitution.

Answer 9

Defining basic rights of individual citizens to put limits on the kind of laws the government can make. Most democratic constitutions (only in liberal democracies) include a charter or bill of rights. Uk doesn’t have one but canada 1982, germany basic law 1946.

Question 10

Define unwritten constitutions.

Answer 10

They are flexible for ammendment. Parts are written but most of it unwritten with the long evolutionary process. Constitutional conventions are fundamental principles that are consistently followed even though they are not contained in a single document and are generally not enforcable in courts. Also judicial interpretations..
The uk has 4 sources: -historical documents (magna carta putting limits on the king’s power)
-important statutes (19th century reform act giving more classes the right to vote)
-judicial decisions (of constitutional significance as those respecting fundamental rights)
-conventions and customs (the government stays in power as long as it maintains support in parliament)
The uk constitution is ecclectic and some praise its flexibility while others think it would be more desirable to codify a constitution which would clearly establish democratic principles. To ammend the constitution is sometimes required with changing values. For unwritten constitutions, it is easy as it only requires an act or law of the parliament with majority in the parliament in both upper and lower houses. The parliament can pass any laws without constitutional limits.
Advantage: political system can easily be changed with few constitutional crises
Disadvantage: passing laws that may abuse individual rights.

Question 11

Define written constitutions.

Answer 11

They are rigid for ammendment and incorporate most of the country’s pasic principles and is harder to change.
UK: legislative act with 50%+1 majority in parliament)
USA: legilative act with 2/3 majority of lower and upper houses and 3/4 of the states ratify in 7 years.
This type limits the power of the government and allows the courts to ensure that the government acted in a way that is according to the will of the people.
Advantage: individual rights and freedoms and institutional powers that the constitution guarantees are difficult to eliminate
Disadvantage: difficult to change (failure to pass equality rights ammendment in 1980 so only 27 ammendments in USA in 200 years)

Question 12

Discuss ammending procedures in the canadian constitution before 1982.

Answer 12

BNA established canadian governmet (senate, house of commons) with provincial legislatures so distributed vertically the power, made property and civil rights provincial, allowed french and english in parliament and protected roman catholic schools in ontario and protestant roman catholic schools in qc. It included unwritten parts like ordinary statutes of the parliament of a constitutional nature, judicial decisions interpreting the constitution and conventions. These could be changed easlily by a simple act of government and constitution itself can only be changed in the uk.

Question 13

Discuss the constitution after 1982.

Answer 13

P-E Trudeau made the written part called the Constitution act that had 3 main effects:
- patriated the constitution making it fully canadian so it can be ammended in canada and not only in UK which makes it clear that it is the supreme law of canada and states which documents are part of the constitution.
-Gave provinces greater legislative authority over energy and ressources
-Established the charter of rights and freedoms
-established procedures for ammending the constitution:it includes mostly a majority in the house of commons and senate as well as a majority in at leats 2/3 of provincial legislatures that represent at leats 1/2 of the population of all provinces (for provisions concrning monarch or supreme court it only requires a majority in parliament and for changes affecting 1 province it only requires the province and the parliament.
Regardless, it is hard to change because it requires a high level of support to change. The unwritten part is easier to change and changes more often due to changig values. Some tried but failed (meech lake accord or charlottetown accord) but some won and concerned certain provinces (1999). Formal ammendments requiring a majority in house of commons and senate, the house of commons has the right to override the senate in provisions by passing a constitutional resolution after 180 days. The constitution ammendment act of 1996 is not a part of the constitution and can be changedby an act of parliament (sets out the combination of provinces whose support is needed for the cabinet to propose constitutional changes.

Question 14

What is meant by “law”?

Answer 14

It is a body of rules written and unwritten recognized as binding in the community and is enforcable in courts. These rules require people to conform to certain standards of conduct and behavior.

Question 15

Define the civil law tradition.

Answer 15

Where from: continental european countries developed different versions of this approach. It originated from roman and french law influenced by napoleon. France exported it to colonies.
Nature: the adoption of a comprehensive system of principles that judges use to determine the outcome of a case. Priority to codes which make legislature made laws the key source of law. Case law is secondary as judges apply principles written in the codes.
Application in qc and canada: qc’s private law is civil law in the civil code governing contracts, family law, delicts, ect

Question 16

Define the common law tradition.

Answer 16

Where from: 12th century in england and exported in to its various colonies.
Nature: based on previous court judgements accumulated. It is an important component of private law (relationships of private interests). Case law or judge made law is the key source of law based on judicial precedents. Many areas have been superseded by statutory law which is the 2nd source. This system is more complicated and flexible.
Application in qc and canada: canada is generally common law.

Question 17

Compare canada and usa court systems.

Answer 17

System of courts and personnel that discharges the primary function or role adjudication of interpreting and appliying relevant laws and rules. They are generally hierarchical with higher courts hearing appeal from lower ones
Canada has a unified court system involving same court systems used for cases involving most laws under federal or provincial juristictions. Federally appointed judges are used in all but provincial courtswhile provincial governments administrate and organize all courts except the supreme, tax courts and military courts
USA has a dual system with the majority of cases tried in state courts. Federal courts deal with federal law and generally don’t hear appeal from the state courts unless if the death penalty is involved, constitutional issues or action of federal officials.

Question 18

Define the selection process of judges in canada and usa.

Answer 18

This selection can be controversial because it is supposed to be completely impartial.
Canada: supreme court judges need to be judge for at least 10 years and member of the bar. 3/9 are from qc and they are recommended by the cabinet to the pm. Federal judges need at least 10 years of experience and the minister makes the recommendation to the cabinet. Provincial judges are recommended by the attorney general and decided by the provincial cabinet.
Usa, president nominates supreme court judges and federal judges that need to be investigates and hearings from the senate judiciary committee. In more than 3/4 states judges are elected which raises questions about their impartiality but provides for a democratic account ability of judges.

Question 19

Define judicial independence.

Answer 19

To ensure that the rule of law is followed, the courts are expected to stay independent of the government. Otherwise, it can intimidate the population and more corruption and the principle that all should be treated equally is likely to be undermined. To protect this independence, judges are given a high level of security and cannot be removed by government. Federal judges have an age limit of 75 years old and their removal requires an act of the parliament after inquiry of canada’s judicial council. Judges are not supposed to engage in political activities and government officials are not to try and influence them.

Question 20

Define judicial review.

Answer 20

The authority of the courts to strike down legislations or governmental actions that the courts deem to be in violation of the constitution. It is not formally written in the constitution but it is adopted. Because pursuing cases in courts is expensive, laws and actions, laws are mostly not reviewed by judges and the justice minister will report it if it is inconsistent with the constitution. This does not happen in uk since the parliament is supreme.

Question 21

What is judicial activism?

Answer 21

There is a variating degree to which the courts are active in invalidating laws. When the courts are active at invalidating laws inconsistent with the constitution, it is judicial activism.

Question 22

Give arguments for and against judicial activism.

Answer 22

For: courts can help protect the rights of minorities by using the charter. Courts are more likely to be concerned about the rights of unpopular minorities than elected officials who are pressured by minority opinion. Legislative bodies sometimes prefer to leave controversial decisions to the courts.
Against: courts are too powerful. Appointed judges are unaccountable and have made decisions on controversial issues instead of elected officials who are supposed to reflect people’s will. Government has been reluctant to use the notwithstanding clause so there is no way to check on what some view as excessive activism.

Question 23

Define the 2 levels that human and civil rights in canada both constitutionally and statutorily.

Answer 23

Rights involving the individual’s relationship with the state: constitutionally protected since 1982 charter of rights and freedoms, guarantees canadians certain rights and freedoms and limit the power of the state respecting us as individuals.
Rights involving the individual’s relationship with other individuals: statutorily protected by 2 levels (federal statute of canadian human rights act and provincial statute quebec’s charter of human rights and freedoms)
Rights unique to canada and qc of language: special case of language rights and obligations in quebec seeking french unilingualism in its area of juristiction and federal seeking official bilingualism.