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Philosophy 2080
James Hildebrand

1Constitutional LawConstitutional Law A body of law that prescribes the extent and the limits of state authority Show the values of the nation Conventions Unwritten rules which are an element of Constitutional law even though strictly speaking they are not laws There is a presumption that conventions will be obeyed since if this is not done there are often political repercussions An example of a convention is the office and powers of the PM Conventions have no statutory definition or law describing definition of the prime minister Lots of things we do are not written down A convention is not a legal rule not a law Its the way things have always been done over timemuch just like a law Not to be enforced by courts Describe how legal powers are usedIf royal assent with held would have been political response so conventions usually obeyed If queen said no we would make effort to change law Convention might be used in court to interpret laws Conventions are created a by agreement or by usage over time b by recognition of parties over time that they are bound to follow the usage or practice c that there is a reason for the practiceCharter of Rights and Freedoms 1982 A Body of Law describes limits and exercises of the power of the state definition of constitutional law Documents case law conventions Examples of limits extent of powers of authority of state Notwithstanding Clause If a body of government wants to pass legislation that is unconstitutional they can do so in spite of the violation by relying on s 33 These laws need to be revisited after 5 years with this time limit existing because if legislation openly goes against the Charter then they need to see if it withstands opposition after a number of years An example of use of this clause was for Bill 101 the French only sign laws that existed in Quebec Section 33 dilutes the power of charter to some degree bc governments can opt out of charter when they go to sec 33Doesnt imply every section of charter howeverSupreme Law This refers to the Constitution and Charter saying that all laws have to be consistent with them S 52 states that any laws inconsistent with the supreme law have no force and effect Charter says that charter of rights ands freedom is supreme law of CanadaAny conflict between any other statues of law charter will govern Its trump card It is entrenched It can be only changed by amending formula Entrenched Stuck This means that entrenched laws cannot be changed by ordinary legislation rather only according to amending formula in the Charter which requires 710 provinces representing 23 of the population This formula basically shows us how unlikely it is that the Constitution will be changed Ultra Vires Outside power jurisdiction This term is usually used referring to s 91 and s 92 of the Constitution Act 1867 to say that if either order of government makes a law that is ultra vires then it is unconstitutional Whether or not the legislator is outside the power of the legislature that made the law2Doctrine of Paramountcy Federal legislation will prevail over provincial where two properly enacted laws conflict or contradict each other Doctrine of Parliamentary SovereigntySupremacy The notion that Parliament can make any law it wants This flies in the face of the fact that the Constitution is the Supreme Law which really gives the judiciary the highest decisionParliamentary supremacy is a positivist conservative notion which was very prevalent in Canada until 1982 It basically means that the sovereign could make any law that the sovereign wanted This goes against the current state of Charter litigation which challenges governments rights to make lawsJudicial Activism This is the opposite of Parliamentary Supremacy and basically means that courts are making laws over stepping their bounds by challenging the constitutionality of laws Ideally theyre not supposed to be legislators Traditional activism we have the Supreme Court of Canada judges are appointed to jobs they cannot be elected or removed for decisions that they make Theyre not immune from the popularity of politics If the government passes law we dont like we get rid of them We feel empowered part of process Judges are not bounded by limitations Retirement age 75 Mandatory come back supernumerary Hired back on Cannot be removed from office for decisions they makeThe positivist idea is that the judiciary shouldnt interfere with making laws because they are not elected cant really be kicked out and may not really represent the people Evolution of Law in Canada Our government system comes from England BNA Act1867 it prescribed the rules of government how to govern Canada it is an act of British parliament Set out authority of the provincial and Federal governments Sec 91 and sec 92 Sec 91 Federal Sec 92 Provincial powers The British North America Act BNA Act of 1867 was the act for the governance of the colony of Canada This Act set out the powers or the executiveAt this legislature and judiciary in Canada and was the first constitutional documentpoint only the British government could change the powers because there was no amending clause permitting the Canadian government to do so Until 1949 the highest court in Canada was still the Privy Council in England Regarding the division of powers s 91 outlines the federal powers eg criminal law and s 92 outlines the provincial ones eg property and civil rights This division is not an exhaustive list of all powers for example the powers of the Prime Minister were left outBefore 1982 a lot of constitutional law dealt with the division of powers For example the provincial government tried to argue that gun registration and regulation was not under federal jurisdiction as it involved property which was under provincial jurisdiction Note they lost3The repatriation of the constitution took place in 1982 under PM Trudeau so that Canada would no longer need to go to England for their royal ascent on everything ie which was basically just ceremonial ie a rubber stampBefore implementing the new constitution a legal case went before the Supreme Court of Canada to decide on to questions First did Trudeau and the federal government need consent from all the provinces by law Second was it required by convention The SCC ruled that there was no law requiring Trudeau to get consent from all the provinces however they believed that convention did exist Since conventions are unwritten rules which are treated like laws ie if disobeyed there are often political repercussions and thus they are generally obeyed as if they are law this was all a political disaster for Trudeau because he was worried about what would happen if he didnt get consent from all the provinces There were conferences with the federal government and the provinces and the only way Trudeau was able to get agreement was by agreeing to s 33 the notwithstanding clause ie in spite of The Charter is a constitutional Bill of Rights Before 1982 the Bill of Rights that existed was only federal legislation and thus could be changedConstitution Trudeau want to make laws from Canada British had to give approval but no authority to change constitution Finally 1982 got constitutional documents Canada Act 1982 Act of British parliament Absolves Br Parliament of any legislative power Canada and grants Canada sole right to make own laws Britain relinquishes its authority The same act adopts an amending formula and a charter of Rights and Freedoms Charter of rights and freedom seven provinces and fifty percent of the population have to agree in order to amend the constitution The Constitution Act incorporates the BNA act but renames it the constitution act 1867this done in 1982 as wellincludes the charter of rights and freedomsHave judicial review The courts and federal appointed judge having inherited jurisdiction our courts can consider any part of law Court made decisions that limit the authority of government officials and legislation So constitutional law doesnt refer to any document in particular it just limits the powers of state
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