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Lecture

LWSO 201 Lecture Notes - Constitution Act, 1982, Liberal Democracy, Equal Protection Clause


Department
Law and Society
Course Code
LWSO 201
Professor
Marywyatt Sindlinger

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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
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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
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