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Constitutional Law: An Overview

This article provides an overview of Canadian constitutional law, including the structure of the Canadian government, the original Constitution, the written and unwritten aspects of the Constitution, and the key principles and rights protected by the Charter of Rights and Freedoms.

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Constitutional Law: An Overview

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  1. Constitutional Law:An Overview

  2. What is a Constitution? • A legal framework that establishes how power & authority within a country is exercised. • The supreme and central law of the land. • Assigns the limits to the power of the state. • In democracies, they reflect the S/E/P values of society • Canadian constitution is a combination of many unwritten rules and written documents added over time.

  3. Canada’s Written and Unwritten Constitution Canada’s federation is documented within: • Constitutional documents- outline the structure of gov’t, division of powers, and rights of ind’ls. • Conventions- followed primarily for reason of tradition rather than law. • Common law- addresses the constitutional disputes and establishes precedents upheld by our legal system.

  4. Canada’s Original Constitution:The BNA Act, 1867 • Prior to 1867, Canada was a British colony w/ no governing legal document. • The BNA Act was passed by the British parliament in 1867; Canada (the colony) officially created with the unification of Ontario, Quebec, NB and NS The BNA Act outlined: • Structure/Organization of Canada • Rules for Canada’s gov’t • GG signature was required on all bills or treaties

  5. Written Versus Unwritten Constitution • Prior to 1982, Canada’s Constitution was considered unwritten b/c it was just a collection of documents used to govern the nation. Documents Used Included: • Royal Proclamation 1763: made British law applicable to all her colonies • Quebec Act 1774: allowed Quebec to continue to use French Civil law rather than British Common Law. • Act of Union 1840: united the provinces of Upper and Lower Canada and established responsible government. • The BNA Act 1867: united the four founding provinces into one country Canada but did not patriate it because the provinces could not agree on an amending formula. • Statute of Westminster 1931: ended Canada’s status as a colony **Only one you need to know for this course **

  6. BNA Act: Division of Powers BNA set out 2 levels of government: • Section 91: outlines the responsibilities of the Fed Gov’t • Section 92: outlines the responsibilities of the Prov Gov’t - Prov Gov’t also had the authority to create Municipal gov't large urban areas. • Section 93:has provisions to prevent provinces from affecting guaranteed rights like separate schools.

  7. Problems with the BNA Act: • Canada did not have authority to pass its own laws • Unable to amend constitution w/out approval of British parliament. • Lack of clarity in division of powers between level of gov’ts. • Civil liberties of Canadians not protected!

  8. PM Pierre Elliot Trudeau made it his mission to right a new constitution for Canada. • He wanted to ‘Patriate’ Canada’s Constitution. (bring legislative power home) • He received a lot of opposition from the Provinces (esp Quebec).

  9. The Road to Patriation in 1981….

  10. The Constitution Act (1982), was finally patriated on April 17th, 1982.

  11. Patriated Constitution included the core elements of the BNA Act, as well as, 4 new principles: • Principle of Equalization 2. Principle of National Resources 3. Amending Formula Principle 4. The Charter of Rights & Freedoms

  12. 1. Principle of Equalization Section 36 (1) of the new charter guarantees that tax monies will be distributed so that all Cnd’s will enjoy the same level of success. I.E. Just b/c Ont is richer it doesn’t mean its inhabitants are entitled to better hospitals. #2. Principle of National Resources Provinces can have control of their own natural resources, under the condition that they cannot impose tariffs on the sale of the resource w/in Canada.

  13. #3: Amending Formula Principle • The constitution can be amended as long as 2/3 of the provinces, representing at least 50% of the population, approve of the amendment. House of Commons + Senate have to agree. • If a change to the constitution involves the activity in only 1 province, then only the Fed + specific Prov gov'ts would have to agree.

  14. Principle #4: The Charter of Rights & Freedoms • Most significant part of the new constitution. • A document that guarantees certain Rights and Freedoms to Canadians • Why Entrench? Bill of Rights (the predecessor) was limited b/c it was only a law. • Charter laws have constitutional status; any law that violates them will be struck down.

  15. Textbook Work: 1. List 3 responsibilities of both the Provincial + Federal Government (pg. 67) 2. What is the Statute of Westminster? (pg. 69) 3. Define these words: • Residual Powers (pg. 69) • Intra Vires and Ultra Vires (pg. 69) • Private Member’s Bill (pg. 78) • Public/Gov’t Bill (pg. 78)

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