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Final

LS101 Study Guide - Final Guide: Canadian Human Rights Act, Racial Discrimination Act 1975, Charlottetown Accord


Department
Legal Studies
Course Code
LS101
Professor
Frances Chapman
Study Guide
Final

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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

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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

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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
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