SOSC 2350 Note 4
The Canadian Constitution and Charter
- “Constitutional law is the law prescribing the exercise of power by the organs
of a State. It explains which organs can exercise legislative power, executive
power, and what the limitations on those powers are.
- Entrenched law: constitutional law entrenched legislation, meaning that it
can only be changed by a specific amending, formula (only if there is
agreement from the federal government and every provincial government)
o It becomes consistent, constant; real.
o Only if the provincial and federal government
- Every province has a veto: they can say if they object
Constitution Act, 1867
- Also known before 1982 as the British North America Act
o Unites the then-existing four provinces of BNA as the Dominion of
Ontario, Quebec, Nova Scotia, New Brunswick
o Sets out a basic structure of Canadian Government
o Divides power between Federal and provincial
o Canada has a federal system of government
- What was missing?
o There was no formula
It was an Imperial Statute, and could only be changed by the
act of the U.K. Parliament.
Statute: different from law in that its not made by legislative
o No individual rights (of citizens),
Fits well with the idea that it’s an act of imperial power,
because there’s no equality in a broader sense of liberal
o Limited constitutional recognition for the rights of native peoples.
Canadian Bill of Rights (1960)
- Before the Bill of Rights and the Charter
- Courts tried cases where statutes were alleged to violate fundamental
- SCC based its decisions on either the exclusivity of federal powers, or the
“peace, order, and good government” clause of the BNA Act.
Constitution Act, 1982
- Added amendment formula which called for the “Patriation of the
o Patriation is making it your own. Making it part of the identity
(because the BNA was made by outside of the Canadian body)
- Added the Charter of Rights and Freedoms (made up for the absence of
individual rights). - Added an explicit constitutional recognition of treaty rights for aboriginal
peoples of Canada
- It wasn’t accepted by Quebec and was adopted over Quebec’s objections.
- S.1. Rights guaranteed subject to reasonable limitation.
- S.2. Fundamental Freedoms
- S.3-5 Democratic Rights
- S.6: Mobility rights
- Ss.7-14 legal rights
- S.15. Equality Rights
- S.16-23: Language and Minority Language Rights
- S.24: Enforcement provisions.
- We made these vague because we didn’t know such things were allowed and
how things might’ve changed in the social norms
- Sets out a two-part test to determine whether federal or provincial law can
override a constitutional guarantee of protection within the Charter
- First, the federal or provincial statutes’ limits on rights must be reasonable;
- Second, courts must be satisfied that the limits are demonstrably justified.
Charter set out a new framework for interpreting the law in
However: not clear about what change this would make in
This cannot be predicted
This would only be answered over time
Can only be built, critiqued over time: we don’t know
how things will change in the future.
Whether this would help regulate, and support our identity of
o Criticisms of the courts:
Charter seemed to move the focus away from democratic
institutions like Parliament
Since they’re appointed and not elected, they don’t
represent the citizens as well
Moves towards question of individual rights and thus to the
Courts have much more say about identities and
freedoms because it is the judges who determine by
- The parliament is the supreme lawmaker of the land. o The belief is the focus stone of democracy
Because we elect them, they represent the wants and needs of
Canada’s on our behalf.
- Counter argument:
o There is a core of values to which all Canadians subscribe, enunciated
first in the Bill of Rights and later in the Charter.
There’s a need that some Canadians have. That is something
that is put forward and representative of legal identity and
o This core of values must be protected at all times, regardless of whims
They’re thought to endure overtime. It can’t be overturned in
separate different cases.
Depending on the whims of economy, parties, and it will still
endure. Only can be changed by a radical decision
Judicial Activism (seen as negative)
- Black’s Law dictionary: “A philosophy of judicial decision making whereby
judges allow their personal views about public policy, among other factors, to
guide their decisions, usually with the suggestion that adherents of this
philosophy tend to find constitutional violations and are willing to ignore
o As an excuse to change the law, curb things to their personal
- Pejorative term for the misuse of judicial woer.