POLS 3651/ MIST 3651
November 18 , 2013
Lecture 9 – Week 11
Law, Federalism and Rights
Forms of government in the world are either Federal or Unitary.
• What is the purpose of having a federal system of government? What purpose does it serve?
▯Division of Power, the power is divided between the federal and provincial government in Canada.
Why are the powers divided in the different levels? What are they trying to achieve?
“Whether Federalism promotes or undermines rights”?
▯Diversity is a key component in Federalism
What is Federalism?
• Federalism is about unity and diversity
• Federalism accommodates differences.
• Federal systems provide a political means for the coordination of an underlying federal society.
The Significance of Federalism:
• The significance of federalism becomes more evident in the area of globalization, because we are
moving from a systematic government to a more global governance.
• Emerging democracies in Europe and elsewhere currently attempting to design constitutions that
combine effective government, recognition of ethnic diversity within.
• They say federalism advances liberty and equality.
• Justice O’Connor: One of the constitution’s protections of liberty “as the separation of the independent
branches of the federal government serves to prevent excessive power in any one branch and to help
keep balance of power in the states”.
• Mainly focused on the democracy part of federalism not the liberty part
• There is an inherent tension between federalism and democracy
▯this ambivalence has two dimensions
Rule of law:
• Federalism constrains majorities ▯undemocratic
• However, constraints may be vital in protecting individual rights.
Origins and Historical Evolution of Canada:
• First encounters: Aboriginals and Europeans (French colonizers and English Colonizers Vs.
• French and English: Accommodating Difference
• Confederation – 1867
▯Prior to 1867 Britain tried to maintain power and authority over Canada.
▯Was about the coming together of colonies in this land for economic and political security and it was
also about accommodating French and English differences. • Development – 1949
• Independence – 1982?
Full independence of Canada was achieved through two documents.
▯The charter of Rights and Freedoms is about the protection of individual rights from the tyranny of the
▯The Amending Formulas: five amending formulas for the first time, advising, modifying and amending
the Canadian constitution.
• Two Key Constitutional Documents
▯Constitution Act, 1867
▯Constitution Act, 1982 (Charter of Rights and Freedoms and Amending Formulas and it is about
• Continuing Constitutional debate
• Constitutional Principles:
▯in 1998 Supreme Court of Canada identified these Constitutional Principles: Democracy,
Constitutionalism, Rule of Law, Federalism, and Respect for Minorities.
• One Constitution in Canada, two parts (Constitutional act of 1867 and 1982)
• Unwritten Canadian Constitution: Tradition (these are inherited from government from Britain)
Logic of Division of Powers?
▯ Logic of division of power is very broad
▯Provinces are mainly responsible for social and cultural matters, education, welfare, healthcare, infrastructure,
implementation of federal economic policies, and promotion of economic development.
▯There is this concept of legal studies in Canada: Judicial Review. This is the review of the actions of the
government. This is one of the main jobs of the Supreme Court of Canada
Review has to do with government politics and acts passed by government
Courts interpret the powers of both provincial and federal governments.
▯Jurisdiction of Federal: National building, trade, commerce, banking, responsibility for social security,
pension, unemployment, national security, criminal law.
Constitutional role of the courts:
• While the Constitution sets out the basic rules of Canada