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LWSO201 - Rule of Law_11.doc

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University of Calgary
Law and Society
LWSO 201
Marywyatt Sindlinger

The Rule of Law and the Canadian Constitution 1) Rule of Law: various definitions a) Plato: Law is the master of government and government is law’s slave b) Formal (thin) rule of law c) Substantive (thick) rule of law d) Functional definition of the rule of law e) UN definition 2) Canadian Constitutionalism – Re: Quebec Secession: a) Constitution defined: a comprehensive set of rules and principles capable of providing an exhaustive legal framework for our system of government and including both written documents and unwritten principles of law b) Written components c) Unwritten components 3) Four fundamental principles of Canadian constitutionalism a) Federalism i) Division of powers between the federal and provincial governments ii) Federal powers in s. 91 of the Constitution Act 1867 iii) Provincial powers in s. 92 of the Constitution Act 1867 b) Democracy i) Procedural aspect ii) Social ideal aspect c) Constitutionalism and the rule of law i) Roncarelli v. Duplessis d) Protection of minority rights 4) Constitution Act, 1867 and Constitution Act, 1982 a) 1867 Key aspects: i) Creation of federal and provincial governing bodies ii) S. 91 and 92: distribution of legislative powers b) 1982 Key Aspects - Canadian Charter of Rights and Freedoms: i) S. 1: rights are not absolute but are subject to reasonable limits prescribed by law and which are demonstrably justified in a free and democratic society ii) S. 2: fundamental freedoms of conscience and religion, thought and expression, peaceful assembly, and association iii) S. 3-5: democratic rights iv) S. 7: right to life, liberty, and security of the person v) S. 15: equality rights – right o be equal before and under the law and the right to equal protection and benefit of the law without discrimination based on the enumerated and analogous grounds vi) S. 32: Charter applies to federal and provincial governing bodies vii)S. 33:notwhitstanding clause c) Key concept: the balance of power as between the federal and provincial governing bodies as a reflection of the underlying ideas about federalism d) Key concept: constitutional democracy - the ability and authority of the courts to overrule actions of the government as a means of upholding the constitution and protecting minority rights even where that undermines the principles of democracy, majority rule, and political accountability 5) Constitutionalism – Key concepts a) Balancing majority rules and democracy with protection of minority right i) House of commons and senate ii) Division of powers iii) Charter provisions b) Legal Liberalism and individual as basic political unit (Charter) c) Recognition of the rule of law as the basis of the Canadian political and legal system d) Constitutional democracy: Key issue – who is the ultimate authority parliament or the judiciary? Recap • rule of law - law is the master of government • thin and thick paradime way of looking at the law • constitution definition *** KNOW THIS 1 - british/ north amarica act 1867 (ENA ACT/CONSTITUTION ACT) 2 - Cons. act - 1982 which includes the Canadian Charter of R and F Constitution 1867 • sets out structure for provincial gov. • constitute the leg. authority and setting out it's legislative authority • 1rst thing it did - create 4 provinces of Canada (quebec, ontario, nova scotia and new brunswic) • alberta joined in 1905 • 2 - sets out our form of gov. ( re - enforces that we are a conditional monarchy; ultimate authority is vested in the Queen) • 3 - one parliament of Canada composed of : Queen, senate and house of commons • representation by population ( house of commons) and rep. by region • house of commons - ontario and quebec hold the power • rep. by population supposed to be balanced by the senate ( rep. by region) but 50% is ontario and quebec and 24% for alberta, saskatwan and BC • senate - appointed by the queen • 4 - sets up legislative powers of provinces ( gov. and leg. body and 4-5 year terms) • division of powers - an attempt to marry unity and diversity (sec 91 and 92) • federal gov making laws and sections where provinces make laws - 91 and 92 respectably • 92 - property rights, education, language - provincial jurisdiction ( those separate matters are unique to the province) • 5 - set up our judicial system - different levels of courts within the provinces and who gets to appoint judges • provinces appoint lower court judges - PCof Alberta • 6 - sets up paramountcy - system of deciding whose laws take precedence (provincial OR federal) if they come into conflict Constitution 1982 • 7 parts • part one - Canadian Charter of Right and Freedoms (not a separate document) • 2 - rights of the aboriginal people of Canada • 3 - equalization and regional disparities (all the
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