Unit 2 Flashcards
(42 cards)
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
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
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
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
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
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
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
Amending formula
- 7/10 provinces
- PEI will never dissolve the Senate
- Over 50% of population must agree
- Fed and prov must agree
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
7 Parts of constitutional act, 1982
- Canadian charter of rights and freedoms
- Rights of the aboriginal peoples of Canada
- Equalization and regional disparities
- Constitutional conferences
- Procedure for amending the constitution
- Amendment to the constitution act, 1867
- General
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
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
Ultra vires
When action by government is outside its legal jurisdiction
Intra Vires
When action by legislature (f or p) is within its jurisdiction
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.
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
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
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
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)
The senate
- Legislative and federal
- Senators are appointed on regional basis
- Check laws passed by HoC
- Controversial
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
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
Executive branch
- FED PM, cabinet
- Governor general
- PROV premier, cabinet
- Lieutenant-governor
Brian Mulroney
1984, leader of the federal conservatives
Promised to get Quebec to sign the constitution