LAW 525 Lecture 2: Law 525-Ch02

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12 Feb 2016
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Law 525 Chapter 2
Constitutional Aspects
The Constitution
-Constitution Act, 1867 & 1982
-Basic rules for Canadian Society, including its legal and political system
-Highest source of law
1Division of Powers (Constitution Act,1867)
2Charter of Rights & Freedoms (Constitution Act, 1982)
Division of Powers
Constitution Act, 1867 allocates powers between
Federal government
Provincial government
S.91- Federal Powers
Regulation of trade and commerce
Banking, incorporation of banks, issue of paper money
Savings banks
Weights and measures
Bills of exchange and promissory notes
Interest
Legal tender
Bankruptcy and insolvency
Patents
Copyrights
Criminal law
S.92- Provincial Powers
Shop, saloon, tavern, auctioneer and other licenses to raise revenue
Local works and undertakings other than:
1. Steamships, ships, railways, canals and other undertakings connecting the province with
another province or extending beyond the province
2. Steamships between the province and any British or foreign country
3. Such works wholly within the province but declared by federal government to be for the
general advantage of Canada or 2 or more provinces
Incorporation of companies with provincial objectives
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Property and civil rights
Administration of justice
Imposition of punishment for breach of provincial laws
Matter of a merely local or private nature in province
Ultra Vires Legislation
-Ultra vires: laws created outside a government authority are of no force or effect (S.52)
-Intra vires: laws created within a governments authority are of legal force and effect
Charter of Rights and Freedoms
-Constitution Act, 1982
-The intent of the Charter is to protect basic rights and freedoms from the governments
S.1-
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.
S.2- Fundamental Freedoms
s.2: Everyone has the following fundamental freedoms:
a) Freedom of conscience and religion
b) Freedom of thoughts, belief, opinion and expression, including freedom of the press and other
media of communication
c) Freedom of peaceful assembly
d) Freedom of association
Legal Rights
s.7: Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice
Equality Rights
s.15(1): Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability
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s.15(2): Subsection (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability
Notwithstanding Clause
s. 33(1): Parliament or the legislature of a province may expressly declare that a law shall
operate notwithstanding a provision in s.2 or sections 7-15 of this Charter
s.33(3)- 5 years
Cases in the Chapter
s.91 Federal powers, s.92 Provincial powers
1. Division of Powers Argument
-Statue is ultra vires because it is beyond the governments constitutional jurisdiction
2. Charter Argument
-Statue violates the Charter R & F
Cases –Division of Power Argument
R. v. Cosman Furniture
Facts:
•Hazardous Products Act (Federal) (“HPA”) –prohibits the sale of unsafe cribs and cradles
•Cosman Furniture was charged under the HPA for allegedly selling unsafe cribs and cradles
•Cosman Furniture argued that HPA was invalid because it was outside the constitutional
jurisdiction of the Federal Government.
Issue:
•Is the HPA within the federal gov’t’s constitutional jurisdiction?
–Is it within federal government’s “criminal law” power (s.91(27) Constitution Act 1867) or
within provincial government’s “property & civil rights” power (s. 92(13) Constitution Act
1867)?
Law:
“criminal law”- includes laws having the purpose of preventing harm to society
“property and civil rights”- includes real property, personal property, industry,
advertising, contractual rights, insurance, consumer protection, etc.
Decision:
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