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LS 101: Canadian Law - Exam Notes

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University of Waterloo
Legal Studies
LS 101
Frances Chapman

Canadian Constitutional Law (3) 2/26/2011 10:49:00 AM Constitution – source of gov’t right to exercise authority over nation  Based on traditions and customs CANADIAN CONSTITUTION Confederation  Passed by British Parliament, British North America Act (now Constitution Act, 1867) o Recognized power of Crown o Parliament of Great Britain (GB) over Canadian Dominion  Canada would have federal gov’t – 10 legislative assemblies and 2 territorial gov’t  No common system of law was imposed on prov as they entered Confederation o Law of BC – law of England as of 1858 o Prairies received law of England as of 1870 o Quebec – 1874 adopted Code Napoleon o Ontario adopted English law as of 1792 o Maritimes English law 1758, 1832 for Newfoundland  Canadian Parliament could not make significant changes to Canada’s Constitution without approval of British Parliament Statute of Westminster  1931 – GB and Dominion adopted a convention ensuring no future enactments of Parliament of UK would affect Dominions unless they requested the enactment  Only remaining ties with England – British Monarch o Exercised power through Governor General in Canada, the Judicial Committee of the Privy Council The Canada Act  1982 – Canada Act passed simultaneously in Canada and GB, giving Canada the Charter of Rights and Freedoms, as well as full control over amending process of its Constitution  Last legal ties cut CONSTITUTIONAL CHANGE Meech Lake Accord  Diverse nature and interests of regions making up Canadian federation, constitutional law in this century was concerned with smooth relations between fed. And prov. Gov’t  Quebec did not consent to Canada Act and patriation of Constitution  Federal and provincial leaders unable to reach an agreement at Meech Lake Charlottetown Accord  1992 – another Accord reached  PM and 10 prov. Premiers, along with leaders of territories and Chief of Assembly of First Nations, developed Consensus Report on Constitution  Quebec guaranteed 25% of seats in House of Commons  Most significant clause in Charlottetown Accord – recognition of aboriginal Canadians to self-gov’t Quebec Referendum  1994 – separatist members to Parliament to form official opposition  Bloc Quebecois – Lucien Bouchard and Jacques Parizeau, called for referendum that asked Quebecers if they wanted Quebec to become a separate nation o Just under 51% of Quebec voters elected to remain a part of Canada RESPONSIBLE GOVERNMENT Responsible government – parliamentary system where majority of elected representatives authorize a cabinet of ministers to oversee functions of gov’t  Recommended by Lord Durham in 1838 The Prime Minister Choice of PM made by governor general or lieutenant governor  PM being leader of party having greatest no. of elected members in House of Commons or legislative assembly  Where there are >2 parties involved – possibility of minority gov’t o None of the parties has clear majority without support of one of the other parties The House of Commons  Made of locally elected representatives, usually belonging to recognized political party  Requirement of Constitution Act, 1867 – federal election held at least once every 5 years o Divide country into constituencies by pop. Density and geog. Area  Party having most representatives forms governing party and leader becomes PM o Party with next greatest no. of representatives forms official opposition The Senate Senate – parliamentary body with many of the responsibilities of the House of Commons  Composed of people appointed by fed gov’t LEGISLATIVE PROCESS The Rule of Law Institutionalized the principle of parliamentary supremacy  Parliament is supreme, but must be emphasized that it is Parliament as a body that is supreme, not any single member of that body  Rule of Law – PM and cabinet members subject to will of Parliament and cannot act arbitrarily  No matter what the motives of gov’t official are, and no matter how sincere, if his/her acts are without authority, they are illegal THE CONSTITUTION ACT, 1867 Peace, Order and Good Government Section 91 of Constitution Act, 1867 begins by declaring that fed gov’t has the power to: Make laws for the peace, order and good government of Canada in relation to all matters not coming within classes of subjects by this Act assigned exclusively to the legislatures of the provinces The War Measures Act has been replaced by Emergencies Act, providing more controlled powers.  Power to wage war  Pass legislation with respect to munitions production, wages, and conscription Trade and Commerce  Does not give fed Parliament power to make all laws in relationship to trade and commerce  Gov’t power is restricted to interprovincial and international trade  Grain and oil – two areas fed gov’t power to regulate has been extended to even local aspects of trade Transportation  Jurisdiction of both prov and fed gov’t  Provincial – local works and undertakings o Exception – shipping, railways, telegraphs, and other works and undertakings o Exception – classification “for general advantage of Canada or for advantage of two or more provinces” -> federal jurisdiction Taxation  Under Constitution Act, federal gov’t has power to make laws in relation to “raising money by any mode of taxation”  Provincial power to tax is limited to making laws in relationship to “direct taxation within the province in order to raising of revenue for provincial purposes” o Ex. Provincial taxes  Prov gov’t has power to impose excise taxes on forest resources, oil and gas, minerals and even exportation of electricity  Income tax – both provincial and federal Paramountcy  Doctrine of paramountcy simply states that when a valid provincial enactment and a valid federal enactment are in conflict, the federal legislation will prevail  Requires federal law must be obeyed wien inconsistency exists between federal and prov law Delegation of Powers  Prov or fed gov’t give up power voluntarily to the other level of gov’t  Severe limitations on its availability in Canadian constitutional law Adoptive Legislation  Another way to get around prohibition on surrender of their legislative authority to another level of gov’t  Incorporate provision in its legislation adopting given prov or fed statute as its own Protection of Human Rights (4) 2/26/2011 10:49:00 AM HUMAN RIGHTS LEGISLATION Rights Awareness  Intolerance and discrimination  What is needed is some sort of constitutional guarantee that a gov’t or its representatives cannot exercise such power without the possibility of having it challenged in the courts Rights Vs. Privileges Right – something basic and protected, so that if another interferes with that right, some resource is available Privilege – something that the state or other individuals have granted, which may be withdrawn at will PROVINCIAL HUMAN RIGHTS ACTS  Ontario’s Racial Discrimination Act in 1944 o BC and Sask followed within next few years with limited legislation prohibiting racial and religious discrimination  By end of 1960s, most provinces had in place basic human rights legislation prohibiting discrimination on the basis of race, religion and ethnic origin The British Columbia Act  In BC, Human Rights Code applies to publications, provision of accommodation services and facilities, employment, advertising for employment, wages, belonging to unions and professional associations, tenancy arrangements and purchase of property  Discrimination is prohibited on the basis of o Race o Colour o Ancestry o Place of origin o Religion o Marital status o Physical or mental disability o Sex o Sexual Orientation Federal Human Rights Statutes Designed to prohibit discrimination in restaurants and other service industries 1977- - federal gov’t passed Canadian Human Rights Act, prohibiting discriminatory practices between individuals in those areas within federal jurisdiction The Canadian Bill of Rights  1960, under John Diefenbaker of the Conservatives  Section 1 recognizes certain basic rights that should be shared by everyone and should continue without discrimination “by reason of race, national origin, colour, religion or sex.” o These rights are:  Individual rights to life, liberty, security of person, enjoyment of property, right not to be deprived thereof excepting by due process of law  Right of individual to equality before law and protection of law  Freedom of religion  Freedom of speech  Freedom of assembly and association  Freedom of press The Canadian Charter of Rights and Freedoms  Second major feature of Constitution Act was inclusion of Canadian Charter of Rights and Freedoms Limitation: controls relationships between individual and government, and not between individuals Its Scope:  Improves interpersonal relationships  Applies to legislative/parliamentary bodies and statutes, and government officials Terms of the Charter 1. Fundamental freedoms a. Provides freedom for conscience and religion 2. Democratic rights
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