ADMS 2610 Lecture Notes - Ultra Vires
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1Review of Constitutional materials
-Law is neccessary to any civilized society. But one needs authority to impose one’s will on
others. Legislatures in Canada get that authority from the Constitution Act 1982.
- Constitution Act, 1982 = rules for running the country and each of the provinces. It consists
of the Constitution Act, 1867 (the old British North America Act, a piece of British legislation,
which was our Constitution prior to March, 1982) and the new Charter of Rights and
S. 52 of the Constitution Act, 1982 says that the Constitution Act, 1982 is the supreme law of
Canada and all other laws must comply with the Constitution.
- If a law doesn’t, it is unconstitutional (“ultra vires” = “beyond the powers of”) that level of
legislature or government (if it is government action or delegated action).
- It is therefore completely ineffective, and has no power or effect
SS. 91 and 92
- With legislation or government action, the first thing to check is whether it is intra vires
(“within the powers/authority”) of that particular level of government, under
a. s. 91 (national) or
b. s.92 (provincial).
- Anything that doesn’t fall within the Provincial powers under s.92, is either mentioned in
s.91 as a federal power or is federal by default. e.g. since there was no such thing as radio
or television in 1867 and there is nothing in s.92 under which broadcasting could fall, it
became a federal responsibility, which is why we have the Canadian Radio-Television and
Telecommunications Commission and not 10 separate provincial ones.
Note s. 92(13): “civil rights” here does not mean “human rights.” It is talking about the rights under
civil law as opposed to criminal law (s. 91(27)).
-Read ss.91 and 92 if you have not already done so.
s. 38 If it is necessary to alter the Constitution,
- the Governor General, for the Queen, will proclaim the amendment to the Constitution
under the Great Seal of Canada, after there has been agreement, shown through a
resolution passed by;
a. both houses of Parliament
and b. two thirds of the provinces which together have 50% of the population of
Territories have their powers delegated to them by Parliament, in the same way that municipalities
have their powers delegated to them by the provincial legislatures.
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