POL214Y1 Lecture Notes - Parliamentary Sovereignty, Constitutionalism, National Assembly Of Quebec
Course ID: 2502532
In Canada, you can be in the cabinet without being elected. It's a custom.
You can be elected to parliament as a cabinet minister and not be a regional elective. If you run for a
house of commons position and lose, you must consequently resign your position as a cabinet
Responsible gov (1848)
With the seperation of provinces and their own governments, and the federal
government, the ppl had to answer to both govs
Bifurcated parl. Supremacy (divided -levels of gov)
Does not mean the fed powers are any less
Constitutional supremacy (everyone is included)
The charter lays out the rights and orders the fed principle
3 pillars of the constitution
What is a constitution?
Act of 1867 -British North American Act
Act of 1982 -addition of Charter of Rights
Incorporation of PEI and conditions thereof
Order in counsel (referring to the cabinet) -issues have the force of law even if they
are not debated in parliament if they are decided by the cabinet or such
And any other acts part of the constitution
Is the supreme court of Canada a part of the constitution?
To change the big C constitution
Big C are formal texts -written down
Some orders in counsel
Some rules of parliament
Judicial decisions become a part of the constitution because they become law
Judicial decisions about the constitution
If a party wins majority, its leader should be called upon to lead parliament
and become PM
The consequences of violating some conventions are political, not
Ensure that the legal sanctions of the const. are in accordance with the
time's moral and social values.
Supreme court of canada says constitutional conventions
There are also customs like pairing (when a member of parliament cannot make it
to a vote, he finds someone who will be voting the other way and neither vote so
that the non-votes cancel themselves out)
All constitutional rules (unwritten or understood)
Small c constitution
Big "C" vs. Small "c" constitution
Lec 2: the constitution and constitutional change
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that the non-votes cancel themselves out)
Like prin of fairness
Constitutionalism and rule of thought
Clear maj. Have to vote on a clear question.
Respect for minorities
The supreme court said that the const. Of can. Incorporates global principles and rules -
more than just what is written -it is necessary therefore to investigate the principles that
give rise to the const. To begin with.
Can Quebec unilaterally decide to seperate from Canada.
Secession of Quebec:
NB: there can be disputes over what are conventions and customs
i.e. Prov and fed. Both have powers of immigration. There are some concurrent powers.
Municipalitites only have the powers the province gives them.
Competing constitutional visions:
Pan-Canadian -> Trudeau
Migratory rights is an example -you can live anywhere you like in the country. Non-
Wanted to patriate (patriation of constitution is the term the prof used) the const. Bring it back
so that Britain had nothing to do with it and the provinces had nothing to say. Only the fed
parliament is the one institution that all Canadians have in common. Only pol body shared by all
parties. Generates an image of Canada, all Canadians are equal and governed my maj rule and
inst. Of law. This is the Pan Canadian image.
Can is a consensus, not just of what fed wants but what fed and prov wants together. Ppl vote
for prov govs who have sole control of some policies and responsibilities. Contract among equal
provinces. Each is responsible for some things. Equality among provinces and between
provinces and federal. Prov legis reflects public will in prov jurisdiction and fed legis reflects
public will in fed jurisdiction.
Confederation. Canada is a contract of equality among two founding ppl -eng and fre. Confed is
a solemn pact between two ppls with two diff cultures and languages. And quebec national
assembly represents the cultural society. (??? Dont know what he meant)
Separatists and federalists -dual
Holds up the poss that the 3 founding provs could if they wanted establish new
laws for those provs. But that does not include quebec -so this is a way of seeing
Look at the act of 1867 there is a foundation for this view.
Binational view of Canada
Arose in 80s. Now call themselves first nations. They say they have been around much longer
and they made pacts with the settlers. They therefore have const. Recognition. Before
confederation by 100 years and are therefore exempt from this const. They have an
arrangement with the british crown. Canada is then a product of trilateral arrangement with
french colonists, english settlers and the first nations. Aboriginals are very divided. There are
several different tribes. They speak diff languages and have diff traditions and pol systems in
place (i.e. partiarchal) but they are similar in the sense that they are all a conquered ppl.
Between 60s and 80s there were 4 major rounds trying to change the constitution
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Amending formula of constitution:
the provs. Wanted to know if the fed could unilaterally change the const. The supreme court said that
the fed could unilaterally change the const. Legally but not constitutionally (i.e. Customs and
The Cans had to go the Brits because we could not decide how to amend the const to have an
First convention: brits would do whatever Can asked and wouldn't interfere.
After they created Manitoba they asked themselves if they had the rights to do
that. The PM did it unilaterally. So now it had to be a joint resolution from now on.
2nd what is Canada?
3rd the UK wouldn't respond to requests from any components of Can. (provs wanted out
and the UK said it was now an internal affairs prob).
4th unless the provs asked for the changes the fed couldnt force it upon them
By convention: 1860s and 1960s
How was it changed until 1982?
Amended form is 38-49
Const. Amending formulae:
Sec 38+42 : 7/50 rule: 7 legislatures totalling more than half the population
Sec 41: UNANIMITY -if you want to change the amending formulae, you need unanimity. Status of
eng or french in can as long as you have unanimity.
Sec 44: Parliament only -if parl wants to change its own rules, it can
Sec 45: Prov. Leg. Only -provs do it on their own.
i.e. Between fed and one or more provs.
Sec 43: Parl. + 1 or more Legs. -changes between parl and one or more legislatures
Const. Is evolving and may one day only require a referendum for const. change
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