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Law 2101 (734)

The Canadian Constitution3

4 Pages

Course Code
Law 2101
Mysty Sybil Clapton

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The Canadian Constitution Lecture #3 Sept 24, 2013 Unwritten constitutional principles: created by the Supreme Court 20 years ago, thought to be the unwritten presumptions that motivated all the written text. The court has identified many such as democracy (not written in the constitution of 1867 but it is presumed), the rule of law, federalism, and protection of minorities. • Unlike conventions, they are not rules (which are clear, mandatory, and have consequences) • Judges can not decide or strike down legislation with these unwritten principles, but they can use them to interpret legislation How does the constitution of 1867 establish federalism in Canada? ** Sections 91 (allocates powers to federal government), 92(powers to provincial government) • Political and constitutional structure of government • Aconstitutional/political structure of governance. Government authority is distributed between a central authority and regional authorities (ex the federal government and the provinces). • Provinces do not get authority from the federal, they are equal in their own houses and those houses are assigned to them by the constitution • Why do we have provinces, not just one big national one? Large geographic area, differences in views, best way to accommodate is to give regions autonomy over some things • 130 years ago there was a lot more regional differences than today, much stronger identity • Ex: Quebec is predominantly Catholic and French speaking while the minority is English speaking, different than rest of Canada • Religious institutions in 1867 were instrumental in social functions such as school, hospitals, the provided welfare, food • Federal government assigns authority to provinces over hospitals, education • Benefits if we all join together into a federal country, primarily economically, need currency, railway, postage, foreign affairs • Driven by needs • All matters of a private or local matter can be handled by the provincial government How centralized is Canada? • Section 90 provides disallowance of acts; the federal government is given power to disallow provincial statutes. The governor general can disallow any federal statutes; given because there could be disagreement among governments because the statute may affect other local areas. Last used in 1943, TODAY there would be huge legitimacy issues if used. • Power to appoint left hand governors gave the opportunity to federal government to choose only what was in the federal interest and vision of federation • Source of federal power in section 92.10 which takes away certain provincial powers and gives them to federal; works or undertakes that are for the general advantage of the country or for two or more provinces, ex: building a hydroelectric dam in a province, federal can decide if it benefits that province alone or affects others (railways) • Another source of federal government in section 91: unless a subject matter has been given to the provinces it is going to come within the jurisdiction of the federal government. Even this basket clause is being used in disappointing ways • Most important in assigning powers is what has been done by the courts in interpreting the divisions of power, whatever the original expectations were, they were subsequently overtaken by the courts • For example the provinces were given power in 92.13 over property and civil rights (your legal rights, contracts, property, sales) within province; has been interpreted wrongly • Provinces were always supposed to have power over hospitals and schools, but in 1867 they were important cultural institutions but didn’t have a lot of budget, huge area of authority • Section
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