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Final

Final Exam Review - The exam shares most of the same questions each year, this is a thorough compilation of answers. This is a final compilation after consulting with 3 other groups' answers. Very detailed analysis of Canadian Constitutional Law.


Department
Political Science
Course Code
POL337Y1
Professor
Ran Hirschl
Study Guide
Final

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QUESTION 1:
Quebec wants to be considered a “distinct society” with its own culture and as such, feels it should
be allowed special political, economic, and social privileges. Of course, language rights come into play
heavily, especially during and after the Quiet Revolution into the Charter era- attempt to have French
recognized as Quebec’s primary language and integrate others living in Quebec into the French speaking
majority. This has, more recently, manifested itself with the sovereignty question (the right to secede) -
a 1980 referendum to negotiate limited sovereignty resulted in 60/40 split and more notably in the mid-
1990s with the secession reference case and second referendum which barely failed. It really gained
momentum in the 1960’s and onwards. Quebequois want the federal government to acknowledge that
Canada is composed of two peoples, French and English Canadians and therefore, the government of
Quebec should be afforded special status as the residents of the province contribute a majority of French
speakers in Canada and the electorate is primarily French speaking. Essentially, Quebec seeks a degree of
autonomy that is not afforded to any province because they have a different culture, language, legal
system, majority religion, etc. Thus, they argue that they should be afforded more leeway to decide for
their province alone what is in its best interests- this, they argue, requires Quebec to be given more
political autonomy (and by association, financial autonomy) so they can enact different laws from the rest
of the Anglicized provinces.
Quebec’s position is to stem the tide of federal centralization which leads into arguments over
federalism and jurisdiction. The issue has roots spanning centuries, notably beginning (at least
constitutionally) with the Proclamation of 1763. For much of the last few centuries, we have seen a
federal approach which largely ignored Quebec’s issues. It was only after the Quiet Revolution when we
saw Trudeau and the subsequent prime ministers attempt to include provisions to appease Quebec in
various documents. Traditionalist Quebec sentiments rooted in idea of collectivity of the French-Canadian
should withdraw into itself and emphasize traditional French and Catholic values, although the
Catholicism argument would disappear in the Quiet Revolution.
Out of the 5 major attempts (Fulton-Favreau, Victoria, Constitution Act, Meech Lake, and
Charlottetown) all except Fulton-Favreau in some way incorporated provisions that would, to some
extent, satisfy Quebec. Indeed, Fulton-Favreau collapsed without the support of Quebec and increased the
separatist feeling in the province. Examples of the provisions used to try and satisfy Quebec are veto
powers on constitutional amendments for any province with at least 25% of population, Quebec is one
such nation.
Some constitutional moments addressing these issues will be discussed herewith. Firstly, the Meech
Lake Accord (1990). The fourth of five attempts at constitutional change, the Meech Lake Accord was an
attempt by the Mulroney government to address the growing French dissatisfaction with the Constitution
Act that had passed eight years earlier- essentially an attempt at reconciliation after the Constitution Act
had failed to be adopted by the province of Quebec and essentially deemed them minority citizens. Also,
all Supreme Court of Canada cases had gone against Quebec in the intervening years, big issues with Bill
101 and Ford v. Quebec (1988). In the Accord, the federal government would recognize Quebec as a
“distinct society” which was the greatest concession it had allowed in order for Quebec to be brought
back in to the constitution issue. As a “distinct society”, Quebec would have the responsibility to promote
the French language and culture, they would receive some immigration powers and input on Supreme
Court of Canada nominations, along with input on future amendments regarding senate makeup. They
also received (essentially) a veto power on certain issues. Overall, Meech Lake was one of the most
significant concessions proposed to Quebec in a major constitutional moment, allowing them recognition
of a “distinct society” and political influence in Parliament and over provincial matters. It did not concede
to allowing the French language monopoly in the province, though, and this issue remains contentious in
the legal system under ss. 16-22 and s. 23 of Charter and s. 133 of BNA Act, for both Quebec and French
speakers across the nation.
The Quebec Secession Reference (1998), after the failures of both Meech Lake and Charlottetown,
both of which would have granted Quebecers some of their demands, they decided a more direct approach
to political autonomy was needed: independence through secession. Referendum called, 50.1% not in
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favor of seceding, as a result, Parliament granted Quebec a constitutional veto and pledged to not ratify
any amendment to the constitution under the 7/50 rule without Quebec’s affirmation. It also had the
House pass a resolution finally recognizing Quebec as a “distinct society”. Parliament posed reference
case to Supreme Court of Canada regarding legality of Quebec to secede and Quebec had argued that
under the pillar of democracy embedded in the Canadian Constitution, it had the right to seek its
independence. Yet the Supreme Court of Canada said Quebec did not have the right to unilaterally secede.
Thus while Quebec was recognized as a “distinct society” after all and gained a veto power, they still
found themselves subordinate to the court and Parliament. This constitutional moment was also important
because it culminated the attempt to amend the constitution that had begun in the late 1960’s and has
remained the final mega attempt of Quebec to declare itself independent (to some degree or another) from
the rest of Canada. The whole affair addressed some concerns of Quebecers but ultimately told them they
were not a true “nation” within Canada.
The Quebec Act (1774) was a significant pre-Confederation document, although it had no legal,
constitutional status. 11 years after the Royal Proclamation and the surrender of New France to the
British, the British governor thought that some Quebec culture should be re-introduced. Essentially, the
Quebec Act provided the first forum for debate on how distinct Quebec should be within an Anglicized
nation. The Act itself attempted to curry favour of Quebecers in the face of the American upheaval. As
concessions for their loyalty, the French civil law system was reintroduced to Quebec which preserved the
French land owning system. Furthermore, it recognized the right to freedom of religion which was
important to the Catholic territory. The Act was the first official recognition of multi-culturalism and the
French were the first group to be denoted as such. Along with the Royal Proclamation, the Constitution
Act of 1791, the Union Act of 1840 and the BNA Act in 1867, the Quebec Act saw the tug of war between
French and English values emerge. The document provides a contextual look at the historical divide
between English and French Canada and in this case, we see (for strategic purposes) the British concede
to French Canadians some of their legal and societal culture.
The Charter of Rights and Freedoms, too, addressed these concerns. The adoption of the Charter of
Rights and Freedoms served as an important step in the evolution of French-English relations in Canada,
especially with respect to language rights. However, as Quebec did not ratify the Charter, it has caused
problems from the French (namely Quebecer) viewpoint. Both within Quebec and in the other Anglo-
centric provinces, all people are given constitutional rights that “limit the ability of provinces from
imposing linguistic uniformity” with the government giving the idea that both English and French
minorities across the country have support. The Charter set down specific areas where English and French
were to be used equally (really throughout the whole government). The government also made available
some public funds for minority language education in provinces. Quebec, however, had a problem with
this policy, seeing their language as the essence of their unique culture within Canada and as such
represented their identity. They should, they argued, have the right to make French the predominant
language in the province. As such, they attempted, most notably with Bill 101 (requiring all teaching to be
in French) and Ford v. Quebec (AG) (1988) (dealing with French only public signs), to maintain their
identity. The Supreme Court of Canada struck down both the above and other French language laws
throughout the 1980’s, saying that the suppression of other languages was not necessary to achieve their
aim. Said that there could be French dominance on signs but had to allow other languages too.
Conversely, as with The Manitoba Language Rights Reference (1985), french speakers outside of Quebec
gained rights; in this case, the Supreme Court of Canada told Manitoba that all their English only
legislation was invalid.
QUESTION 2:
Canada is a federal state. This means that, in common with a number of other countries which
together form anywhere from one-half to three-quarters of the world’s population, Canada divides its
legislative powers regionally. In Canada, three levels of government (federal, provincial and municipal)
are present, although only two (federal and provincial) are mentioned in our constitution. This
arrangement of legislative powers between several provinces and one national government was laid out at
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the beginning of Confederation in the British North America Act, 1867 (renamed the Constitution Act,
1867). In the BNA Act, legislative powers are enumerated in two key sections, sections 91 and 92.
Section 91 lists those legislative powers granted exclusively to the federal government, while section 92
lists those powers granted exclusively to the provinces. Over the years since Confederation, the Supreme
Court of Canada (SCC) has been called upon numerous times to determine the limits of both federal and
provincial powers. These rulings have tended, variously, to favour one level of government over the
other, leading to a number of “phases” of judicial interpretation.
As it now stands, the Canadian Constitution represents an unreasonably skewed distribution of
powers between the federal and provincial levels of government. Three main tensions exist with respect
to the Constitution, and each one reveals that there are some fundamental weaknesses within the division
of powers system as established in 1867. The first concerns the so-called “POGG” powers, which stand
for peace, order and good government. Drawn from the preamble to section 91 of the BNA Act, these
words refer to the residual legislative powers, which in Canada – unlike the United States and many other
federal states – are given to the federal level of government. Historically, “POGG” powers have been
invoked in three cases: (1) when there are gaps, silence or lacunae in the constitution; (2) when Canada
has been confronted with matters deemed to be of national concern, and (3) when confronted with a
national emergency. The first case is of relatively minor importance. The other two are worth examining,
however, since issues of national concern and national emergency sometimes encroach upon areas which
would otherwise be under provincial jurisdiction. For example, in a case which went to the SCC in 1988,
The Queen v. Crown-Zellerbach Canada Ltd., a logging company in British Columbia was charged for
dumping waste into provincial waters considered to be solely under provincial jurisdiction. In the end,
however, the federal government was able to apply its legislation regulating dumping in the sea based on
the argument that the pollution of provincial waters was indeed an issue of national concern. This
demonstrates just how broad and disproportionately powerful the “POGG” powers clause is in the hands
of the federal government.
A second major tension within our constitution which shows how its distribution of powers is
skewed exists with respect to the federal spending power. Section 91-1A of the BNA Act grants the
federal government powers under the heading of “Public Debt and Property.” This power manifests itself,
among other ways, through transfer payments made by the federal government to the provincial
government. The Canada Social Transfer and the Canada Health Transfer, for example, grant money to
the provinces on the specific condition that they be used for particular things, such as healthcare,
education or social services. Provinces, however, have questioned whether this constitutes an
encroachment on the autonomy of the provinces since the money must be used as the federal government
sees fit. Again, the constitution skews responsibilities between the federal and provincial levels of
government, as the federal government receives most of the nation’s income revenue, while the provinces
are expected to fund some of the nation’s costliest programs, including healthcare and education.
QUESTION 3:
For the most part, the relationship between the constitution and Aboriginal peoples has been
problematic and controversial from the birth of Canada. In recent decades, alongside the broad
international human rights movements, there has also been a “restorative justice” movement focusing on
the need to redress past systemic wrongs against minorities and marginalized peoples. Canada has
undergone mass judicialization and the Supreme Court has risen as main arena for battling out the main
concerns of Aboriginal community. There is no doubt that the introduction of the Charter has had a
transformative effect on addressing Aboriginal, however caution should be exercised in interpreting more
concrete impacts of these changes. The constitution arena overtime has extended to the aboriginals. The
relationship between the Canadian constitution and the aboriginal peoples in Canada has been one that
has been long going and has adequately responded to some of the need of this community.
The best framework for approaching this issue is to first identify the primary sources of Aboriginal
rights in the constitution, and then survey the major constitutional issues in the past few decades and look
at landmark case moments. This is exactly what will be done herewith.
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