Canadian Constitutional Law

The Importance of a Constitution

• Basic framework for a nation’s form of government and legal system

• A nation’s rule book re: making, amending or revoking laws (which must reflect values)

• Written or unwritten (Canada has both)

Sources:

1. 1. BNA Act/Constitution Act 1867 and Constitution Act 1982

2. 2. Unwritten Set of Rules/Conventions

~ become obligatory due to

tradition (Parliamentary system, common law)

3. Court Rulings that interpret Written

Constitution ~ create precedents

3. 82

Canada’s Constitution

Canada’s Written Constitution–July 1, 1867–Canada becomes a new dominion–Federal and provincial powers were

divided

Canada’s Constitution

Canada’s unwritten Constitution– Prime Minister– Conventions adopted by UK (e.g Cabinet,

parliamentary and party systems)

Court Decisions– Courts resolve disputes over meaning or intent of

law

Components of the Constitution

1. Jurisdictional

Powers

2.

Parliamentary

Democracy

3.

Three Branches of Gov’t

4.

Legislative Supremacy

5.

Constitutional Amendments

Parliamentary Democracy

• election every 5 years

• leader of the party with most votes becomes PM and appoints Cabinet

• Opposing parties = OPPOSITION which exists to promote accountability of gov’t

Division of Powers

Federal Provincial

Division of Powers

• Section 91: Federal powers– Central matters – Defense, economy, criminal law, trade, property,

• Section 92: Provincial powers– Matters of interest to the province– Education, health care, environment

• Section 93: Education– The responsibility for Education across Canada to

be available in both languages and to have Roman Catholic education publicly funded.

Question related to section 93: Education

Should Canada publically fund all religious

schools?

Legislative Supremacy

• Fed. and Prov. gov’ts retain ultimate authority to make, amend, and abolish laws in Canada

• Role of Judiciary is to ensure law is applied equally and fairly

• Since 1982 Courts have been granted more power to declare laws invalid

• s.33 notwithstanding clause

Amending Constitution• requires support of Parliament, Senate, 2/3

of provinces representing at least more than 50% of the population of all the provinces

• s.38 of Constitution Act 1982 allows provinces to opt out of an amendment (would not apply to that province)

• constantly changing due to judicial interpretation of Constitution

Timeline of Canada’s Constitution

• July 1, 1867 • British North American Act defines the

operation of the Government of Canada. • Serves as a base for the Canadian

constitution.• A nation’s rule book re: legal matters• The Act created a

• Statute of Westminster, 1931• Canada made it’s own laws• British laws no longer applied to Canada• Canada was independent of Britain’s foreign policy.• WW2 - Canada declared war 6 days after the British

and entered the war as an independent nation.

• Patriation (Homecoming) of the Constitution, 1982• Entrenchment of Canadian Charter of Rights and

Freedoms• Included an amendment formula • Quebec did not sign, felt excluded from discussions• Country was now fully independent in all areas of law• Allowed for all future amendments to be made within

country

• The Meech Lake Accord, 1987• Recognized Quebec as a ‘distinct society’• 10 provinces agreed • Aboriginal voice not heard• Provinces started to rethink the idea of Ouebec

as a distinct society• Accord Failed

• The Charlottetown Accord, 1992• Attempt to resolve disputes, satisfy Quebec• Altered divisions of power: fed/prov/courts• Altered status of Aboriginal groups• Apprehension to changes and Quebec

distinction: Accord Failed• Quebec Referendum, 1995

• 50.56% voted NO to Quebec separating

For more Info…

• Check out the agenda with Steve Paikin for a look back at the significance of the patriation of the Constitution:

http://www.youtube.com/watch?v=n-PdDjhi_eA