Constitutional Act 1982 including the Canadian Charter of Rights and
1) Constitution Act 1982 – 3 Key Functions
a) S. 52: Constitution is the supreme law of Canada
- Double aspect, sometimes both levels of government can legislate on the same activity.
Example: Environmental Jurisdiction, Drinking and Driving
-This creates concurrent levels of jurisdiction
-They determine this based on your pith and substance of your legislation. This is the true nature
of legislation and if they see your true nature is intravirece (inside jurisdiction), if it doesn’t then
your ultravirese (outside jurisdiction).
-Paramouncy, is when the legislation do conflict, in this case it usually goes to the federal
- House of commons set up and why
- Section 91 and 92
- Re patriation the constitution and bring it to Canada in Canada’s control in 1982: 3
reasons for push
1.) The brits want to give up control and cost
2.) International and domestic push for human rights after Second World War. Civil rights
movement in the states. Bill of rights in 1960 in Canada, (statement of principles/ ideas)
3.) Quebec’s push for sovereignty
- Minority groups were also pushing for constitutions for themselves (women, aboriginal)
- Quebec has never agreed to constitution act of 1982
-Constitution Act 1982: protect ideas and dignity and valued by federal and provincial
-Has 7 parts to it. Canadian Charter of rights and freedoms is part 1.
-Part 2 aboriginal and treaty rights
-Part 3 amendment procedures
The 1982 act does three key things:
-It states that our constitution is the supreme law in Canada. Constitutional Supremacy: which
means that the powers of our government are limited by the terms of the constitution (written and
unwritten). Parliamentary supremacy: which those powers of government are not limited
(parliament is supreme and can choose what they want to do with not limitation).
- Need someone to make sure the government is acting within is constitutional power. This
person is the judiciary. Has power to oversee government action.
-Section 38 amendment procedure
-C c of r and f b) S. 38: Amendment procedure
- Can we change the constitution unilaterally? Need resolution of the house of commons
agreeing to amendment, and they need resolutions form at least 2/3 of the provincial governing
bodies agreeing to the amendment, and you must have 50% of Canadian population.
c) Part I: Canadian Charter of Rights and Freedoms
- Principles are based on the supremacy of God and the rule of law. (God not so much
2) Canadian Charter of Rights and Freedoms
a) S. 1: Guarantee of rights subject to some limits
b) Limits must be:
1. Prescribed by law: limit that is contained in a piece of legislation of some form of
government action doe by law.
2. Demonstrably justifiable: not taken for granted the government must demonstrate
that what ever limit they are placing of our rights and freedoms, it is justified. And
the reason must be related to 3.)
3. Reasonable in a free and democratic society: must relate to our freedom and
democracy. It must be a limit promoted to further democracy/ justice.
c) Oakes test: the two-part legal test for determining if a government action limiting a right
or freedom is saved or justified under s. 1
-when our rights can be limited. Mr Oaks had possession charged of trafficking. The fact that I
have possession does not mean I am guilty, it violates my chartered of rights. (innocent until
1. Is the objective of the government action of sufficient importance to warrant
overriding a Charter right? (pressing and substantial)
2. Is the means by which the objective is met reasonable and proportionate
Is the means rationally connected to the objective?
Does it impair the right as little as possible?
Do the negative effects of the violation outweigh the importance of the objectives?
3) Fundamental Freedoms – S. 2 of CCRF
a) Freedom of conscience and religion
b) Freedom of thought, belief, expression, including freedom of the press
c) Peaceful assembly
d) Association 4) Democratic and Mobility Rights – S. 3-6 of CCRF
a) Vote and be eligible to hold office: Every citizen of Canada provincially and federally in
elections. House of commons must sit for 5 years maximum.
b) Mobility within Canada and into Canada: you have the right to enter remain and leave
5) Legal Rights – ss. 7-14
a) S. 7: right to l