Lecture 4 Legal Studies LAWS 1000-C
THE CONSTITUTIONAL CONTEXT: LAW, THE STATE,AND THE CONSTITUTION
I. Course Reader, 3(a)-(d).
The Case of the Moonstruck Worshippers: In a small town, there is an unorthodox religious group — they worship
the moon. They found a farmer’s field that they think has special power for their moon worshipping. They worship
the moon during the full moon and park their cars on side of the high way. One time, they all got parking tickets
with expensive fines. They took the issue to court. They claimed they were not obstructing the highway. They were
not causing any problem. In their view they parked legally, and even if they did not, this is not about them parking,
this is about their freedom of religion. The farmer is not coming to court, but is happy with this situation because he
does not want them on their land. The city is just sitting in the background waiting to see what happens because
those tickets are worth a lot of money to them.And if the court upholds their right to ticket over the moon
worshippers' right to freedom of religion, they could just keep ticketing them every time they show up. So who
should win this case? THINK OF BOUCHARD & TAYLOR COMPROMISE.
• Involved parties in this case: Moonstruck worshippers, farmer, the city (who has set this law)
• Whose rights are being intruded upon: the farmer because they are trespassing on his property
• But from the facts it does not appear that the farmer expressed this
• the Moonstruck worshippers are directly affecting his right to enjoy and use his property
The city’s rights are also being infringed upon, because the Moonstruck Worshippers are violating the bylaw
• The Moonstruck worshippers rights are also being infringed upon, because they cannot park where they want to to
practice their religion
• The city’s rights are most important in this situation, but in real terms the key to this problem is the worshippers
• We all agree the ticket is valid — they have to pay the tickets
• Its only an issue of freedom of religion if the Moonstruck worshippers are the only people being ticketed
• If they keep parking at the side of the highway, they are going to continue to get tickets.
• Eventually they will not be able to tolerate anymore or run out of money
• Ex. Compromise — the worshippers can ask the farmer if they can park on their land. The moonstruck worshipper
can park there if they pay the farmer $200/year because there will be wear and tear if they park there.
Today: The Constitutional Context: Law, the State and the Constitution
• Readings (mostly cases / piece of jurisprudence):
- Reference re Secession of Quebec
- Roncarelli v. Duplessis
- Reference re FirearmsAct (Canada)
- Benjamin L. Berger, Judicial Review
- These cases tell us what the constitutional basis is for our country, what are the key principles that define the
relationship between the provinces and the federal government snd between all of us and both of those
- They also tell us a lot about how we understand rights and what we believe in culturally an politically when it
comes to the actions of government and the rights of individuals.
I. BACKGROUND TO THE CONSTITUTION
• British NorthAmericaAct
- The ‘chore chart’of Canadian federalism
• ConstitutionAct, 1867
- The entrenched model
• What is a constitution? To understand a constitution, you have to understand that any state — when a group of
people come together and decide to live together and they comprise together a state — all we are really talking
about here is an organized political community, which puts in place a government, which essentially exercises Lecture 4 Legal Studies LAWS 1000-C
authority over the territory of the state. There are a lot of ways we can define limits on power, but one of the
simplest and most straightforward ways we do it is BOUNDARIES. The state and the authority has to be
structured. There has to be a way to for the people exercising the power to know what the limits of their power are,
what they are allowed to do, what they are not allowed to do.And the people upon whom they exercise the power
also need to know those limits. One of he ways we do that is through a constitution.
• The constitution is essentially the set of rules that defines the governments organization and operation.
• All states have a constitution that is made up of the customs, conventions, rules of law that the people agree to and
that will inform the institutions of the state
• It will place limitations of the powers the state had
• It will express clearly the directions in which those powers can be exercised
• It will define the relationships between the different institutions and the state, between different levels of
government within the state, and between those levels of government and institutions and the people.
• That is the purpose of a constitution
• That constitution when you look at it, like virtually all other law that you see all over the world, will reflect the
people’s ideas of not only what is important to them but also what is important to them in terms of how they wish to
• You will also get a very clear idea as to what people view as the proper role of the government in their society, what
is role of the state in society
• In Canada, historically, it was the British NotAmericaAct (1867) that was really our first iteration of what our
constitution was going to look like.
• The British NorthAmericaAct brought together the Canadian state and it did so in the form of a federation
• What we have in a federation is a central government and a series of lower governments/states that come together
to work ideally progressively and positively together
• The British NorthAmericaAct is the basis of the constitution act (1867), which in 1982 was brought home to
Canada through the simultaneous passing in the United Kingdom and in Canada of the Canada act.
• At that moment, we received our own constitution, our full and complete independence, and an entrenched Charter
of Rights and Freedoms.
What the ConstitutionAct, 1867 did:
1. Brought together provinces & federal government in a federalist system
• “Federalism”: the political mechanism by which diversity could be reconciled with unity”
• Powers divided between central federal government and provincial governments
2. Recognized power of Crown & Parliament of Great Britain over Canadian Dominion
3. Created unified system of interprovincial trade & commerce
• Canada is a federal state. We have a situation where legislative authority/government and the power to make law
is split between the federal government and the provincial governments.
• Therefore, state power is divided between those two levels of government and the powers that are held by the
respective governments are protected so that what falls to the provinces as their powers cannot be usurped or trod
upon by the federal government and the powers that fall specifically to the federal government are not the business
and cannot be trod upon or usurped by provincial governments.
• So we have a split there
• The ConstitutionAct (1867), the BNAAct (British NorthAmericaAct) defined that split in the legislative powers by
specifying in section 91 what powers would fall to the federal government, which includes things such as the power
over the criminal law, the power over trade and commerce, the power over national defence. In section 92, the
BNAact/constitution act 1867 outlines provincial powers, which include property and civil rights in the province,
enforcement of the criminal law (federal government is responsible for creating the criminal law, the provinces are
responsible for its enforcement and implementation).
• One of the difficulties we have with the BNAact is that although it is basically a chore chart that says what the
respective responsibilities of the provinces are and the federal government, the split is not necessarily clear. There
are a lot of grey areas/space to fight over who has the right to do what. But, as a general rule, any power that does
not fall specifically to the federal government under section 91 or to the provinces under section 92 will be
considered a residual power and that is going to fall to the federal government within their broader authority over
the peace, order, and good government of Canada. Lecture 4 Legal Studies LAWS 1000-C
So anything that isn't specifically handed to the provinces as within their jurisdiction/as one of their powers will fall
to the federal government in addition to what they are empowered with under section 91.
• When we brought this all home/when we severed these ties fully and completely, in 1867 at the time the BNAact
was initially passed, it recognized the crown and parliament of Great Britain as having power over Canadian
Dominion. That meant we were still under the control of the British government.
• The BNAact tried to put in place a unified system of interprovincial trade and commerce. When the provinces
came into the federation (not all the provinces came in at the same time), there were structures in place for them to
engage in economic and other activities that would allow them to mutually support each other and through that
support the larger federation.
What the ConstitutionAct, 1867 did not do:
1. It did not impose a common system of law on the provinces
2. It did not grant Canada real independence from Great Britain
• The ConstitutionAct 1867 / The BNAAct did not impose a common system of law in the provinces.
• The BNAact put in place the structures for the provinces to one into confederation and to join in that federated
state with and under the Canadian government.
• In respect of what was in many cases the unique and distinct traditions and cultures that inform different provinces,
something which was exemplified in the province of Quebec, the BNAact provided that the laws as they had
developed within each of the provinces from the point of, essentially, the provinces creation to the year in which
they entered confederation, those would continue to be the laws that would be in place within the province.
• So different provinces joining at different times and having different traditions would have slightly different laws
within those colonies
For example, British Columbia joined confederation in 1858, so it had all of the common law created up to that
point. That was the starting point for the legal foundation that it brought into confederation through BC.
• The prairie provinces joined around 1870 so, again, the same basic situation.
• The other thing that the constitution act did not do in its original incarnation as the BNAact was grant Canada any
real independence from Great Britain.
• What that meant at the time was that legislation could be passed in great Britain that was binding on Canada.
That’s pretty problematic because although a significant percentage of Canadian citizens at that time were former
British subjects, its not like we were voting in the British elections. So a number of people who, technically, we had
no control over and who were not answerable to us, could pass legislation that bound us.
• Our constitution, again the British NorthAmericaAct, could not be amended by us unless the British approved.And
we had no court of last resort here.
That meant that if you wanted to appeal all the way, you had to go to England, where the court of last resort for
Canadian appeals was the judicial committee of the privy council.ABritish court deciding Canadian cases.
What did this mean?
• UK Parliament could pass legislation binding on Canada
• Canada could not amend Constitution without British approval
• Judicial Committee of the Privy Council remained final appeals court
Independence from Great Britain more important after 1930
• Statute of Westminster, 1931, confirmed legislative independence
• Appeals to Judicial Committee of Privy Council ended in 1949
We actually secured our only significant measure of independence from Great Britain to that point in 1931.
• This came about because there had been a world war and as a colony of Britain, Canada did not have the freedom
to decide whether or not they would enter that war. When Britain entered, we entered.
• That fundamental reality really drove home for Canadian governments that frankly we needed to have greater
control over our foreign policy.
• Federal government needed to have the power and the right to make its own decision based on the democratic
rule of the people about what direction our relationship with other countries around the world was going to take.
• The result of that was, in 1930, there was an imperial conference that was held in England.Athat conference,
Britain and Canada worked out the terms of what would be a very new relationship — these terms were included in
the Statute of Westminster 1931. Lecture 4 Legal Studies LAWS 1000-C
That particular statute did some pretty important things.
• First of all, it contained a promise from Britain that they would only legislate for Canada at Canada’s request.
• So, no more automatic doing for Canada without Canada’s knowledge or consent.
• They also decided they would not strike down Canadian legislation that they disagreed with and they granted
Canada the right to appeal any British statute.
• For all intents and purposes, in 1931, we were effectively legally independent from Great Britain.
• The only things that remained was that the Queen remained connected to Canada through the office of the
governor general, which is still the case.
• And up until, 1949, when the supreme court of Canada became the court of last resort in Canada, we still were
appealing to the JCPC.
• That situation persisted until 1982.
• Secured full independence from U.K.
• Canada gained full control over Constitution & ConstitutionalAmendment
• Charter of Rights and Freedoms
• In 1982, we had the simultaneous passing of theCanadaAct in the UK and Canada — we became fully
independent from UK in every way.
• Canada act removed all powers of Queen - she is just a symbolic role
• We obtained the power to amend and change our own constitution and, more importantly, we obtained an
entrenched charter of rights and freedoms. Most significant event within CanadaAct and the bringing home of our
constitution because what happened when we secured an entrenched charter of rights (and its the entrenched
piece that is important) there had been rights legislation in place in pretty much all the provinces and there was a
Canadian bill of rights in place since just after the second world war. But these were just regular pieces of
• They could be, essentially, emended or terminated or powers rendered annuity by other legislation.
• When we brought the charter home, we entrenched it within the constitution. That means that if you want to
change anything in the Charter of Rights and freedoms, you have to go through an extremely complicated process
of constitutional amendment.
The Charter of Rights & Freedoms
• Impacts on constitutionalism (Berger)
• Role of judiciary before 1982
Role of judiciary after 1982
• When we brought the Charter home, what the charter did was provide for us a very powerful new process for
upholding rights and it brought in a process that would uphold rights primarily through opening up your right as
citizens to challenge the government/the state.
• The charter exists to protect you against the wrongful exercise of power by the federal government.
• Essentially, what the Charter did was put a check on the powers of parliament and legislatures.
• The Charter of Rights and Freedoms and its arrival in Canada/its entrenchment in 1982, initiated some pretty
significant changes in the way we do business here, and it especially impacted how we do business in the courts.
• Before 1982, the SCC views its role narrowly. The roll of the courts, as Berger told us, in constitutional matters,
was essentially one of maintaining the political. We have a very significant separation here between the executive
and the judiciary/ between the government and the courts.
But when you look historically at that relationship prior to 1982, what you tend to see disproportionately is a court
that really backed away from any engagement with substantive law.
• What the court saw itself doing with regards to constitutional issues was sort of adjudicating/arbitrating the
relationship between the feds and the province because again, we had that chore chart and it was not a very clear
• So, the court was really about providing guidance to /supporting those 2 levels of government in their work.
• Interestingly, when you look at some of those decisions of the court historically on some of the things we now
understand as linked with our entrenched right (for example, if you look at the criminal law and if you look at earlier
cases before 1982 on things such as search and seizure and detention), you see a very conservative court that
worked very hard either to support existing law or to support the status quo that that law created. Lecture 4 Legal Studies LAWS 1000-C
We had, ore 1982, the Supreme Court was in many respects, either an equal or somewhat lesser partner in these
• After 1982, when we brought the charter home, the charter was essentially handed to the SCC for safe keeping.
• After the entrenchment of the Charter of rights and Freedoms, the role of the court shifted from that goal of
sustaining the political to one where the relationship was about (as Berger put it) rebalancing between political will
as the expression of a particular interest and reason towards an understanding of the role of the court mediating a
much more universal logic of rights.
• So, what we see now is that the role of the Supreme Court and their involvement in constitutionalism is much more
an expression of universal rights as limits on political and executive power rather than an effort to support/simply
mediate different expressions of that power.
• What that means is, there were some very significant shifts in some of our most fundamental constitutional
II. PRINCIPLES UNDERLYING CANADIAN CONSTITUTIONALARRANGEMENTS
• Principle that Parliament is supreme law maker for the country
• Parliamentary Supremacy linked with concept of DEMOCRACY
• Rebalancing of tension between political will and universal rights
• After 1982, Supreme Court of Canada became highest law-making body and thus a check on Parliamentary
• One of the fundamental principles of our constitutional arrangements that was fundamentally altered by the arrival
of our Constitution back in Canada and the entrenchment of our charter was this concept of parliamentary
• Parliamentary supremacy is a pretty simple concept. Historically, it embodied a belief that parliament is the
supreme law maker in the country and that no other body has the right to make laws other than parliament.
• That gives you some insight into the historical relationship between the courts and parliament because we know
and there has always been the law that is created by government statutes and judge made law that is achieved
through the making of decisions and the creation of precedent.
• In an era where parliamentary supremacy was essentially one of the founding principles and before we had this
entrenched rights legislation/this piece of law, parliament was basically in many respects served by the supreme
courts and by the decisions that it made.
• Parliamentary Supremacy as a concept holds at its core the concept of democracy.
Parliament is given this right to be sole and supreme law maker by all of us when we vote.