Crim135 - topic 5.docx

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CRIM 135
Graeme Bowbrick

TOPIC #5 – THE CANADIAN CONSTITUTION – PART 1 I. Introduction 1. The Purpose of a Constitution  1) set out basic structure/branches of government – eg Canada - executive, legislative, judicial  2) define/set out the power of branches of government – what they are supposed/allowed to do  3) Place limitation on powers of government – what specifically cannot do  4) set process by which changes can change to constitution – constitution amendments 2. The Colonial Origins of Canada’s Constitution  Canada began with multiple British colonies  Our first constitution document were simple British statues that spelled out authorities of the colonies to govern/ make laws for themselves (structure and power)  The statues include: o Colonial Laws Validity Act 1865 – British statue empowered colonial legislature to make laws as long as they don‟t contradict the British laws (so they could only make local laws) o Constitution Act 1867 – main document that establish the political/legal institution, structure of government that exists today, sets out the power of those institutions o Statue of West Minister 1931 – British parliament giving up its final authority on the self-governing dominions (Canada, new Zealand, Australia, south Africa, northern ireland etc) – no longer pass any law affecting those dominions II. Pre-1982 Constitution: The Constitution Act, 1867 1. The Preamble  Introduction to a statue  Don‟t use for all, only for big, complex, important statue th st  (March 29 , the statue was passed but did not come into effect until July 1 – Canada Day)  The Purpose of a Preamble: Introduce it purposes, indicate importance and what it is trying to achieve. ** The Implied Bill of Rights **  General bill of rights = part of constitution that sets out fundamental constitutional principles – usually explicit ( written in black and right) - However Canada originally did not write it until 1982 – but we still had those rights b/c of implied bill of rights.  Implied Bill of Rights – arise from interpretation of preamble  “with a Constitution similar in Principle to that of the United Kingdom” o This phrase IMPLIES that we must have same rights and freedom that Britain had as of 1867  It imported four fundamental element into the Canadian constitution  1) Basic democratic rights – not just voting, it‟s the conditions in which society operates it – these are all necessary to have a democratic society. o Freedom of speech o Freedom of the press o Freedom of assembly (physically gather with other people, eg protest) o Freedom of association (associate with others, whom you may never meet eg join political party, you are associated with these people but never meet them, eg join union, join whatever clubs)  2) Doctrine of Parliamentary Supremacy o Britain before had kings and queen that had absolute legal powers, later people rejected that and demanded democracy - this doctrine say people have right to govern themselves and no one has divine right to govern them  3) Doctrine of responsible government o A government that is accountable to the people  through elections.  4) Doctrine of rule of law o Power can only be exercised according to law  must be legitimate power, no arbitrary law  need predictability o The law applies to everyone  no one is above the law  Some people may be corrupted, but if they get caught they are punished  Even people who get acquitted they have submitted themselves to the law, they went through a legal process  NO one is above the law in Canada. o We conduct ourselves according to the law  if someone wronged you, u go through a legal process to get redress  EXAMPLE: Ron Carelli vs Duplessis 1959 supreme court o 1940s Quebec – very conservative/catholic, little tolerance for minority religions esp Jehovah's Witnesses o Had a bylaw – offence to distribute literature on street (seem to only apply to certain religious group) - Jehovah's Witnesses often got arrested, Ron Carelli was a Jehovah's Witnesses but also a successful restaurant owner, he often post bail o Duplessis – premier of Quebec – asked ministry of justice, to refuse Ron Carelli‟s alcohol license renew o Arbitrary denial him, made him lost his business so he cant bail o Ron sued duplessis, he won. Said they took his license without legal authority to do so, through arbitrary exercise of the law. 2. The Division of Legislative Powers (D.O.P.)  Constitution sets out the power of government – 10 provincial legislatures, 1 federal parliament ** Introduction: The Federal System of Government  “Federal System” Constitution divides law making power into two levels –national/central  number of government based geographically o Difference from Britain - Britain does not have federal system. They have unitary government - all power is in British parliament, no provinces or states government (their country is much smaller)  Federal government is not necessarily superior to provincial government. If they dislike anything, they cannot stop them. Federal government also cannot pass law to override law made by provincial government. The power is divided into two parts, so they are each supreme within their own areas o Power is divided according SUBJECT – eg provincial - health care // federal - national defence, criminal law o In their area, they are supreme, the other level of government cannot interfere – they exist side by side, not one superior to another (A) FEDERAL LEGISLATIVE POWER: SECTION 91 “It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces” (i) POGG Clause & Residual Power  Federal government can make laws for “Peace, Order, and Good Government of Canada” o 1 Power to make legislations in relation to national emergency – eg war – War Measure Act o 2 Power to make legislations on matters in relation to national concerns – matters that go beyond authority of a single provincial government to deal with – eg border issue between BC and Alaska – affect more than people in Bc because affects relationship w/USA which affect other provinces.  Residual Clause – “all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces “ o Any subject not specifically assigned to provinces, by default becomes federal power – “residual power” = the leftover powers (ii) Specified (“Enumerated”) Areas of Federal Legislative Jurisdiction  Specific listed federal powers o Section 91 Subsection 3 - The raising of Money by any Mode or System of Taxation  Government can only do what they are authorized to do  “By any mode/system” – they can tax in any way they can imagine eg income tax, fuel tax, federal sales tax, luxury goods tax etc – almost unlimited.  Also a “Spending Power” – “power to tax is power to spend” Need to build roads, government programs etc – can use their money however they like legally eg health care 50% o Subsection 5 - Postal Service.  Canada post – not BC post o Subsection 7 - Militia, Military and Naval Service, and Defence.  national military, province do not have own army o Subsection 14 - Currency and Coinage.  We have Canadian dollar, not 10 different provincial currencies o Subsection 17 - Weights and Measures  Switching from miles to km, gallons to litres, imperial  metric o Subsection 24 - Indians, and Lands reserved for the Indians.  Indians = aboriginal o Subsection 25 - Naturalization and Aliens.  Aliens = foreigners, Naturalization = becoming a citizen if not born here “naturalized citizen”  “department of immigration and citizenship” o Subsection 26 - Marriage and Divorce.  Define what marriage is  2004 change “union of one man to woman”, now “union of two people” – allow same sex marriage  How you can get divorce and under wha
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