Unit 2 Flashcards Preview

LAW > Unit 2 > Flashcards

Flashcards in Unit 2 Deck (42):
1

Royal proclamation, 1763

-Established common law of England in all British territories in North America
-Crown-owned all land (unless privately owned)
-Outlined rights for aboriginal peoples
-Prevented land deals with aboriginals
-Granted aboriginals the use of land
-The proclamation is still referenced to uphold the rights of aboriginal peoples

2

Quebec act, 1774

-Outlined the right for Quebec to use the French system of civil law
-3/9 judges on the SCC must be from Quebec because of their expertise on the civil code of Quebec

3

Constitutional act, 1791

-Upper and lower Canada
-Government structure of lieutenant-governor, executive and legislative assembly
-Exec. is responsible to the lieutenant-governor not legislative

4

Act of union, 1840

-Unified upper and lower Canada
-Established responsible government to the elected
-Legislative Assembly
-Lieutenant-governor was now required to implement the will of the legislative assembly
-Established a British parliamentary style of democracy

5

Constitutional act, 1867 (BNA Act)

-Unified British colonies in North America into a nation called Canada (Ontario, Quebec, New Brunswick, and nova scotia)
-Established that Canada’s system of government would be modelled on the British parliamentary system
-Established a federal system of government and outlined the division of powers between the federal and provincial government

6

Constitution

-Legal framework that establishes how power and authority is exercised
-Assigns the limits of power
-Constitutions assign the powers of the state to protect from civil war from groups of rival interests
-Constitutional law comprises the principles of the constitution
-Provision for making amendments
-Constitution = supreme law
-BNA act/Constitution act 1867 = Canada will model the principles of Britain
-Canada’s constitution is not codified in one document, but in multiple called conventions

7

British North America Act

-Operates as parliamentary-style democracy
-Outlined division of power among federal and provincial governments
-Role of PM and cabinet not made explicit
Problem w/BNA
-No amending formula
-As new provinces joined the confederation Britain passed the bills

8

Amending formula

-7/10 provinces
-PEI will never dissolve the Senate
-Over 50% of population must agree
-Fed and prov must agree

9

Road to constitutional act, 1982

-Federal gov. Tried to patriate the constitution without provincial consent
-The provinces took the federal gov to court and the SCC said it would not be illegal for the feds to patriate, to do so would flout and unwritten convention
-In 1981 a new amending formula was agreed upon by the federal gov and 9/10 provinces → Quebec walked out

10

7 Parts of constitutional act, 1982

1.Canadian charter of rights and freedoms
2.Rights of the aboriginal peoples of Canada
3.Equalization and regional disparities
4.Constitutional conferences
5.Procedure for amending the constitution
6.Amendment to the constitution act, 1867
7.General

11

Conventions: unwritten rules

-There is no formal rule that if the part in power cannot keep the confidence or carry the vote in the HoC on major government bills, and election must be called
-The relationship between federal and provincial gov relies on conventions
-By convention, the Senate cannot veto bills passed by the HoC because the Senate is not and elected body; however, the Senate has authority to block any legislation

12

Components of the Canadian constitution

Federal jurisdiction 91
-Banking, bankruptcy, census and statistics, citizenship, court procedures in criminal trials, currency and coinage, defense,

Provincial jurisdiction 92 + 93
-Direct taxation in the province, labour and trade unions, hospitals and healthcare, municipalities,

93 education

13

Ultra vires

When action by government is outside its legal jurisdiction

14

Intra Vires

When action by legislature (f or p) is within its jurisdiction

15

Jurisdiction

When someone has to power to act on a matter based on the parameters set by their title or status that allows them to do so.

16

Pith and substance

Doctrine to determine whether or not the action is legal in areas where both levels of gov have authority in a jurisdiction dispute. If a law passes and your not sure who it belongs to because it falls under both section 91 and 92, the pith and substance doctrine comes into play

17

Municipal powers

Section 92 gives provincial government the sole authority to arrange and oversee municipal institutions within their borders → cities have no constitutional power of their own

18

Parliamentary democracy

-Canada is a parliamentary democracy → fundamental principles of the c0nstitution are upheld by federal and provincial govs
-HoC where federal MPs sit and the provincial legislature where provincial MPPs sit

19

Legislative branch

-Makes laws
-Statute law originates in fed or prov gov
-Fed gov is made of elected members of the HoC and those appointed to the cabinet
-Provincial and territorial governments consist of members (MPPs) elected to the Legislative assembly (no senate) (Quebec, National Assembly; and Newfoundland and Labrador, House of Assembly)

20

The senate

-Legislative and federal
-Senators are appointed on regional basis
-Check laws passed by HoC
-Controversial

21

passing bills

Passing a bill (first reading)
-Introduced
-Discussed
-Background info
-printed
2nd
-Principle is debated
-May be referred to a committee for further examination
-Committee may amend draft before sending back to HoC
3ed
-Debate is restricted to content of bill
-No amendments can be made
-Senate approval of three readings then to GG for royal ascension

22

Passing a bill at the provincial level

3 readings in the legislative assembly have occured and bill is passed, it moves to the lieutenant-governor for royal proclamation

23

Executive branch

-FED PM, cabinet
-Governor general
-PROV premier, cabinet
-Lieutenant-governor

24

Brian Mulroney

1984, leader of the federal conservatives
Promised to get Quebec to sign the constitution

25

Quebec’s concerns

Protection of quebecois culture and language
Wanted to veto constitutional changes

26

Quebec’s demands

-Distinct recognition
-Greater role in quebec immigration
-A role in appointment in the SSC
-Limitations on the feds to spend on provincial jurisdiction
-Veto power over constitutional changes (yikes!)

27

Meech lake accord, 1987

-“Distinct status” written into the constitution
-Quebec gets 3 members on the SCC
-All provinces allowed to opt out of federal social programs
-All provinces given a constitutional veto
→ the solution to try and get Quebec to sign the constitution

28

Canada’s response

Concerns about decentralization
Aboriginals excluded
Women's groups seeking equality provisions in the constitution
Define “distinct society”

29

Failure of Meech Lake : Elijah Harper

Quebec was first to ratify
Elijah Harper voted against tabling the accord for debate in Manitoba legislature by filibustering with an eagle feather
Newfoundland cancelled their vote
Meech Lake accord could not be ratified

30

Charlottetown accord

Social and economic union issues
-Health care
-Education
-Movement of goods/services
-Standard of living
Senate reform
-Equal and elected
Supreme court of canada
-Provinces to submit list of possible judges
Composition of the HoC
-Quebec granted 25% of seats
-Aboriginal seats to be negotiated
Aboriginal issues
-Recognize inherent right to self-governance
-Land claims
-Treaty rights
Amending formula
-Requires unanimity
OUTCOME : Candains rejected Charlottetown by 53%

31

Royal proclamation, 1763

-Outlines the guidelines for european settlement of Aboriginal territories in North America
-Issued by KG3 after France ceded the land (You’ll be back!)
-Represents official claim of British territory in North America after winning the 7 year war
-Referenced as “the Indian Magna Carta or Indian Bill of Rights”
-Referenced in section 25 of the Constitution act, 1982

32

The indian act, 1876

-Defines who is an “indian” for government programs
-Defines status and non-status indians
-Provides legal structures for reserves, but imposed residential school
-Act did not cover Inuit communities of the North even in the 1930’s

33

Status indians

-Treaty indians who speak to their treaty cards, not their status cards
-Those who entered into a treaty with the Crown; recognized as a band
-Rules related to inheritance of indian status
-First nations people (many women lost status if they married white men)
-Inuits granted status in 1930
-Metis in 2014

34

Non-status

Someone who would have been and Indian, but for that fact that he or she was excluded by the rules, is a so-called “non-status” indian

35

Argument of government for indian act

-Indians were incapable of exercising the franchise
-Indians were not capable of civilization and would and would eventually become extinct
-Indians were utterly incapable of managing their own affairs
-No representation without taxation, so vote should not be extended to Indians

36

The community

Elders - potlatch laws
Adults/parents - reserve laws
Children/teens - residential schools
Babies/toddlers - 60s scoop

37

Indian act rules

-Aboriginal peoples had no control over their land on the reservations
-Punished if left reserves
-Punished for having hard liquor on reserves
-Forced to carry ID cards

38

The pass system

Required all first nations people living on reserves to get written permission from an Indian agent when they needed to leave their community. If caught, the would be incarcerated or returned

39

Potlatch laws

-Indians who participates in any indian festival, dance, or ceremony is guilty of an indictable offence
-Taking these ceremonies away was like getting rid of hospitals, churches, medicines etc.

40

Residential schools: Duncan Campbell

-In 1920 it became mandatory for all native children from 5-15 to attend a residential school
-Cultural genocide
-Kill the indian in the child
-Enforce religion and language and customs
-Last school closes in 1996
-Child abuse, sexual assault, death, PTSD, psychological damage

41

The 60’s scoop

-Widespread adoption of native children to white families in the 60s, 70s, and 80s
-Removal from their homes, foster care for many years
-Children were denied the right to know their heritage
-Suppressed identity and abuse, psychological and emotional problems

42

Truth and reconciliation

Result of the largest class action in canadian history
Former residential school students went to court
Gather written and oral stories
Work towards the reconciliation between former students and the rest of canada
Goals; keep historical documents, help canadians become more aware of what happened and understand the background behind current policy decisions