POLI 2220 Lecture 1: POLI 2220 Notes

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Published on 24 Feb 2015
Course
Professor
Canadian Parliamentary Government
The Canadian Regime
Theme: to explain the underlying principles which govern our ‘regime’
Regime: Collection of institutions of the state
-Political institutions taken as an organic whole: “Eco-System”
-An ‘ecosystem whose inner logic derives from its unique combination
-Can we transplant organisms from one ecosystem to another? (i.e. elected Senate)
-Responsible Government and Federalism = uniqueness
-Adoption of alien principles can be difficult (US senate, SC judges, ‘primaries’; models
of representation)
-Example: Leadership conventions (“mandates”/PM governments/elitism)
-Language penetration/loss of understanding of importance to RG- FOP
1) Liberal Democracy
2) Westminster Parliamentary System
3) Constitutional Monarchy: Executive government and authority in Canada is
vested in the Canadian Monarchy
4) Federalism
Why a monarchy and not a republic?
Rights:
1. Government does not give them (human rights) you have them by virtue of being born
human
-Government protects rights doesn’t give them
-French Revolution/ America
2. Utilitarian
-Human rights nonsense and don’t exist, but rights arise from circumstance
-Government cannot curtail my rights unless I am harming someone
-Britain
-Canada adopted both views on rights
-Didn’t have bill of rights originally because it was implied in constitution
-Trudeau entrench bill of rights
-Federalism: French Canadian “nation within a nation”
-Monarchy:
-By election of president, he is never sovereign or chief
-Reelection: During first term he is concerned with reelection only
1) Monarchy “above party politics”
2) The Crown is custodian of responsible government
-Responsible government helps avoid president being a despot who is not obligated to
consult with cabinet unless he chooses to do so
-Crown has to get advice from prime minister and cabinet that is elected in parliament,
prime minister (executive branch) is responsible to the legislative branch by fusion of
powers responsible government, and the legislative branch is responsible to us
What is a constitution?
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A set of rules that authoritatively establishes both the structure and the fundamental
principles of the political regime”
1) Entrenched Constitutional Law
-Written in
2) Organic Statues
-Simple acts of parliament that can be changed more easily than constitutional law
3) Constitutional Conventions
-Unwritten rules of the constitution
-1 and 2 are written, 3 is unwritten.
-Difference mostly in how they are enforced
-If you violate a constitutional law courts would step in, whereas a constitutional
convention would only have political consequence
-Courts can point out conventions but can’t enforce
-Statute of Westminster gets legislative independence
-Control over foreign affairs
-The Canada Act, 1982
-Patriated constitution
-Not a new constitution, but a repatriated constitution with some important amendments
-We got constitution back in Canada
-Amending formula, charter of rights and freedoms
-Before Charter, Bill of Rights (not entrenched)
-The crown is not symbolic
January 15, 2015
-Charter came into effect on April 17, 1982. It was part of Constitution Act, 1982.
-Section 1: “Reasonable Limits Clause”
Subject only to such reasonable limits prescribed by law that can be
justified in a free and democratic society
Rights are strong but not absolute
Oakes Test (proportionality test) to weigh the value gained by the
limitation against the value of the charter
-What is considered a “reasonable limit”
1) There must be a pressing
-Section 33: “Notwithstanding Clause”
Parliament or the legislature of a province may expressly declare in an Act
of Parliament or of the legislature, as the case may be, that the Act or a
provision thereof shall operate notwithstanding a provision included in
section 2 or sections 7-15 of this charter
Only applies to the Charter
Cannot be used for Democratic rights, Mobility Rights, Language Rights,
Minority Language Education Rights
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Can only be used for fundamental freedoms, legal rights and equality of
rights
The action is only valid for five years after which it must be reaffirmed
High political cost for using it (public opinion)
-Section 24: “Judicial Review”
Interpreting the constitution and settling constitutional conflicts between
different political actors
Parliament in the Constitution
A set of rules that authoritatively establishes both the structure and the
fundamental principles of the political regime
-Branches of government: legislative, executive, judicial
-Similar to American, but legislative and executive are fused in Canada
-Key Features
-Sovereign head of state
-A head of government (prime minister by constitutional convention)
-Appointed by crown
-Executive powers from the legislature (logical consequence)
-Because they are elected (democracy). If not appointments would be
undemocratic
-Democracy is that they were elected first
-Must retain confidence of house
-A loyal opposition
-Opposition has to be loyal to crown
-Avoiding treason, basically saying I am going to oppose your government but not
trying to overthrow them
-Hansard (record of legislatures activities)
The Canadian Crown
-“Reigns but does not rule”
-Organizational principle
-The Crowns representative in Canada: Governor general
-Nova Scotia: John Grant
-Prime Minister: First among equals
-Charter increased popular sovereignty
-Parliament is sovereign
-Section 33 allows for dialogue between courts and parliament
-Trudeau “despite presence of section 33, final word on legislation remains with
parliament anyways”
Federalism
Foedus: Positive connotations
-Retaining individuality in collectivity
-Values of community
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Document Summary

Section 33: notwithstanding clause : parliament or the legislature of a province may expressly declare in an act of parliament or of the legislature, as the case may be, that the act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 15 of this charter, only applies to the charter, cannot be used for democratic rights, mobility rights, language rights, Four essential functions of parliament: to make government: to establish a legitimate government through the electoral process, to make a government work: to give the government the authority, funds and resources necessary to govern the country, to make sure a government behaves to be a watchdog over the government, to make an alternative government: to enable the opposition to present its case to the public and become a credible choice for replacing the party in power.

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