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Philosophy 1B03 January 15th 2014.docx

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Wil Waluchow

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Philosophy 1B03 January 15 2014 A New Constitution • By 1960s, widespread consensus on idea of patriating the BNA act • But much provincial opposition to Federal Government plan to patriate • Revolutionary idea • Westminster model: parliamentary supremacy; no constitutional restrictions on Parliament’s power to legislate – replaced by • Constitutional democracy and judicial enforcement of Charter rights – judicial review • Judges empowered to deny Parliament’s will if legislation judged unconstitutional owing to Charter violation • Federal government wary of proceeding without provincial consent – political costs • Asks SCC (Supreme Court Canada) whether provincial consent to patriation (with new Charter of Rights) necessary • Result: Patriation Reference SCC Reference Reference Question: • A submission by the federal or a provincial government to a court (usually SCC) asking for an advisory opinion on a major legal issue • Question typically concerns the constitutional validity of legislation being contemplated • Different from standard cases: o Lower courts bypassed  Government raises question SCC ruled: • Unilateral patriation by Federal government • Not a violation of constitutional law • BUT a violation of constitutional convention • Constitutional
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