SummariesConstitutionalLaw

8/8/2019 SummariesConstitutionalLaw

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Canadian Constitutional Law Summaries

1.

Canada Act, 1982

Terminated UKs powers to legislate for Canada

enacted the Constitution Act, 1982 which:

is equally authoritative in its French and English versions

Pt I : Charter of R& F ; Pt II : Aboriginal Rights; Pt IV : Amending Procedure

in its schedule renamed the British North America Act as the Constitution Act, 1867

Constitution Act, 1867

Pt II : Unites the provinces; Pt III: Executive Power ; Pt IV : Legislative Power (estHouses, Senate); Pt V: Provincial Constitutions, Legislatures; Pt VI : Distribution of Powers (s91- residual and enum Federal; s92 enum Provincial); Pt VII :

Judicature

Charter By entrenchment became alterable, only by amendment to theConstitution.

Bill of Rights 1960 vs. Charter of R&F 1982

only applies to Federal Laws entrenched

not entrenched (ie repealable) applies to both Federal &Provincial laws

What does the Constitution include ? s52.2 Constitution Act 1982: the CanadaAct, Cont Act 1982, and any amendments, and Acts referred to in its schedule. NBinclude menas the definition is not exhaustive, ie can be expanded to includeother things ( NB Broadcasting Co v Nova Scotia (1993)) .

Supremacy Clause : s 52(1) any law inconsistent with Const = of no effect toextent of inconsistency

Entrenchment Clause : 52(3) special amending procedures are required to makeany changes

Parliamentary Privilege : what is necessary to Fedl houses of Parlt and ProvlLegislatures to function as legisl bodies. (eg. Power to exclude strangers formChambers for freedom of speech in debate.)


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- Must satisfy the Test of Necessity: eg Canada v Vaid failed test: excl andunreviewable jurisdiction over all House employees (incl Chauffeur) not necessaryfor the House as a deliberative body.

S45: Power of each provincial legisl over the Constitution of the Prov.

Unwritten Principles of the Constitution : incl. Democracy , Federalism ,Protection of Minorities , Consitutionalism, Independence of the Judiciary(Secession Reference : If Province held referendum and decided to secede FedlGvt would be legally bound to enter negotiations to accomplish secession)(also inRe Remuneration of Judges (1997): Judicial Independence made constitutional)

Prerogative Powers : Rules of Govt established by Convention. Courts cannotlegally enforce, but can acknowledge they exist. Eg. Appointing PM, issuingpassports, creating Indian Reserves, and ( Patriation Reference: ) obtaining consentof affected Provs to amend the Constitution.

-no remedy for breach but courts declaration makes it practically impossible toignore. Need to codify to make enforceable.

NB: can only affect govt structure, not policy. ( Public School Boards Assoc v Alberta[2000], Catholic Teachers Assn v Ontario [2001]: Traditional autonomy enjoyed bypublic school boards (convention) cannot restrict Govt policy, or Substance of a law(eg. One that interferes with that autonomy.)

-cp. Usage: Govt feels no obligation to follow but usually does so. Long time usagebecomes Custom

2.

Amending Procedures : Found in Pt V Const Act 1982.

s38 General; s41 Unanimity; s43: Some but not All (provs); these mustconform to the Charter. Also, s44 Amendments in rel to Houses of Parlt and Exec;s45 Provl Constitutional Amendments

s38 General aka 7/50 Rule requires resolutions to be passed by: Senate +HofC + 7 of the 10 Provinces which have in total at least 50% of the population.

Use for: residual, when other procedures do not apply as well as those listed in s42.

NB no single prov has constitutionally entrenched veto

-39(1): must wait 1 year to proclaim (unless all have consented/dissented) (allowstime to consider)

-39(2): expires in 3 years if required consent not achieved


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Opting out: 38(3) applies to any amendt that derogates from the legislativepowers, proprietary rights or any other rights or privileges of the legislature orgovernment of a province

-prov can pass resolution of dissent = amendt will not take effect in that

province-Must be done prior to proclamation

38(4): resolution of dissent can be revoked at any time, but 46(2): resolution of assent cannot be revoked after proclamation

s40 compensates provs for opting out, for any transfer of Provl legislative powers toFedl govt (in relation to education or cultural matters only).

Regional Veto Statute : no amendt can be authorized unless it has first beenconsidered by a majority of the provinces that includes: Ont, Que, BC, 2+ Atlantic

Provs rep min 50% pop, 2+ Prairie Provs rep min 50% pop. Applies to amendmentsthat: do not allow for opting out, and must otherwise follow the general 7/50procedure. Does not apply to : s41(unanimity) or s43 (some but not all)amendments.

S41 Unanimity Rule used for matters of national significance which shouldnot be altered over the objection of even one province. NB s39 time limits do notapply.

S43 Some but not all Provision used for language usage within a province,altering provl bopundaries. Note: protection of minorities is afforded by the fact that

it also requires resolutions of the Senate and HofC (ie Fedl level approval) as well asthe affected provinces Hogan v Newfdlnd (2000).

S45 Provl Legisl Alone laws amending constitution of prov (ie those that bearon the operation of an organ of govt of the province SCC). Note does not include:Constl guarantee of language rights (per SCC in AG Quebec v Blaikie , now explicit ins45). Also: OPSEU v Ontario [1987]: Profound constitl upheaval by the introductionof political institutions foreign to and incompatible with the Canadian System.

Future Amendments

French Canadian Nationalism : 1982 amendments reduced power of Que NatlAssembly, Que was only prov that did not agree with them. Meech Lake Accord1987 to appease Que, but fell short of ratification by 2 provs. CharlottetownAccord 1992 rejected in National Referendum. Quebec then held 2 nd ref 1995.Defeated by only 49.4% 50.6%.

Western Regionalism : Bulk of Canadas pop is in Que + On. So Fedl policiesfavour manuf industry and consumers of central Can. West relies on prod of wood,


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oil, gas, metals. Response: 1. to increase Provl govt power which the West can moreeasily control and decr Fedl power (per 1982 amendments), and 2. Make centralinstitutions more responsive to regional concerns.

Aboriginbal Peoples Demands : entrenchment of traditional rights. S35:

guarantees existing aboriginal and treaty rights. S37 commits to further discussions. They also seek: entrenchment of explicit right t self govt, and to participate in constlamendmt process where aboriginal rights may be affected.(Charlottetown Accordwould have done so but was defeated).

Entrenchment of Charter Rights : note override provision was inserted to obtainagreement. Note also Quebec never agreed with the Charter yet still legally bindingon the province.

Division of Powers : Reducing Fedl and incr Provl power easiest way to addressFrench Candian and Western Canadian grievances. 1982 amendmts incr provl powerover natural resources. On the other hand: Enlargement of certain Fedl powers mayfacilitate effective national economic policies, Fedl power is lacking or only avail inemergencies with respect to: foreign ownership, securities regulation, wage andprice controls. Another issue is extent to which Provs differ in size and wealth.Changes in division of powers very diffic to achieve.

Central Institutions : Intrastate Federalism = constl change though betterrepresentation so Fedl power can be increased. Interstate Federalism=decentralisation of powers. Suggestion: have triple E Senate (ie equal no. of repsfrom each prov). Within SCC would require Provl role in appointing judges.

Criticism of amending procedures : Problematic to retain agreement throughout1 yr ratification period. Proposals lapse in3 year period, or are defeated by changesin govt during that time too long. Agreement bw Ministers turns into bargainingrather than rue assessment on merits of proposal..

Secession : It has not been stated by the judiciary or by statute but no provision inthe Const allows for secession unilateral secession not possible. Re Secession of Quebec [1998]: Court asked whether Quebec could secede unilaterally. Secessioncannot be undertaken in defiance of terms of the Constitution. So secession wouldrequire constl amendmt in accordance with its procedures (but did not specifywhich one would apply). Note SCC also stated: a clear majority on a clear questionof law put to referendum in Quebec, would confer legitimacy on demands forsecession and give rise to an obligation on all parties to Confederation to negotiatethe required constitl changes. SCC also pointed out that the political ramificationsfor failure to negotiate in good faith would include the defaulting govts legitimacyin the eyes of the international community would be undermined. ... Principle of Effectiveness: If seceding govt achieved effective control of a territory and


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recognition by international commty the secession although unconstitutional wouldhave to be recognized eventually as a reality by Canadas own Constl Law.

Which amending procedure would apply to secession? Unclear. But not: 43, 44, o45.

Perhaps 38: covers those amendments not covered by the other procedures. Or 41:most onerous.

3.

The powers of the Provl Legislatures are not granted by Parlt and cannot be taken,altered, or controlled by Parlt.

Provs not legally subordinate to Fedl Govt but if conflict bw Fedl law and Provl law,

Fedl Law prevails.With the growth of Central Power the question whether a state is truly still federaldepends upon: whether there is still an area of guaranteed autonomy for each unitof the system.

The Federal Principle : Dividing powers so that the general and regional govtsare each within a sphere coordinate and independent .

Senate: equally drawn from regions:

Quebec, Ontario, Western Provinces, Maritimes 24 Senators each

Newfld 6 Senators

Yukon, NW Territories, Nunavut 1 Senator each

SCC : also by region 3 of the 9 judges from Quebec, 3 from Ontario, 2 from thefour Western provs and 1 from the four Atlantic provs

Regional Veto statue - incorporates regions into the 7-50 formula ( ordinary statuenot a constitutional amendment). It prevents an minister of the crown introducingany resolution authorizing An Amendments in the the house of commons withoutprior consent of the legislatures of: a ) Ontario b) Qube c ) BC d) 2 or more of theAtlantic provinces( min 50% of the population) e) two or more of the parieprovinces with(min 50% of the population)

Hogg- the regional veto statue gives indirect vetos to the four most populousprovinces to BC, ONT, QUE and BC and this compromises the equality of theprovinces envisioned in the 7-50 formula.


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Subsidiarity - a principle of social organizing where decision affecting individualsshould as far as possible be made by the level of government made closest to them.

Hogg- a primary goal of confederation was to preserve considerable autonomy forthe four original provinces. As a result , BNA Act 1867 gave provincial legislatures

authority over property, common civil rights, common courts, police, municipalbodies, hospitals and education = subsidiarity principle

Another goal of confederation was to provide collective benefits of economicunion and greater financial strength and increase defence. As a reset the BNAact 1867 gave federal Parliament authority over customs and excise,interprovincial and international trade and commerce, banking and currency,all forms of taxation and national defence. All consistent with subsidarityprinciple.

(Not consistent with subsidarity principle)- authority over criminal law,penitentiaries, marriage and divorce

Laws that impact people the most directly are mostly provincial.

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