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CONSTITUTIONAL CASES.docx

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Department
Philosophy
Course
Philosophy 2080
Professor
James Hildebrand
Semester
Winter

Description
CONSTITUTIONAL LAW REVIEWLECTURE NOTES CASE RATIOSOUTCOMES AND DEFITIONS ORGANIZED BY WEEK WEEK 1INTROCONSTITUTION AND PETER HOGG ReadingPeter HoggFederalismrules that allocate governmental power between the central institutions Parliament and the provincial institutions provincial LegislaturesGovernor General never formalized in an amendment responsibilities not laid outstill appointed by the Queen but now on the advice of her Canadian ministersBNA Act 1867 o No mention of Prime Minister or cabinet government Left in the form of unwritten conventions as in the UKo No mention of Governor Generals responsibilitieso No general amending clause until 1982o s 101Gives authority to Canada to establish their own Supreme CourtHowever it was assumed that appellate authority would continue to lie with the Privy Council of England which it did until 1949 o Does not contain a bill of rightsCivil liberties were to be protected by legislative bodies and common law as in the UK Canada Act 1982 o UK gives up authority over Canada o Constitution Act 1982 Schedule B of Canada Act Contains the Charter of Rights the domestic amending formula and other changes to Canadas lawCanadas gradual evolution from colony to nation has denied it any single comprehensive constitutional documentWhere does Canada get its constitutional ruleso Imperial Statuteso Canadian Statuteso Parliamentary Privilege unwritten circumscribed by the decisions of the courtCan also exist separate from the Charter of Rights without conformity to itExempts actions of legislative assemblies from the Charter of Rightso Case LawStarts as interpretation ends up being an entire body of lawConcern has been raised that case law is trespassing into fields more properly left for the legislative and executive branchesCommon Lawcase law that is independent of any statute of constitutionUsually statutory intervention to modify judgemade rules common law o Royal Prerogative Powers and privileges accorded by the common law to the CrownResidue of arbitrary and traditional royal powerIf statute is enacted and occupies the place formerly occupied by prerogative then the Crown must comply with terms of the statuteThese powers can be reviewed by the courts and have been on several occasions o Conventions Rules of the constitution not enforced by the law courtsNonlegal rulesPrescribe the way legal powers shall be exercisedExample Constitution Act of 1867 gives Queen and Governor General power to withhold royal assent from a bill that the two Houses of Parliament have enacted but a convention says that the royal assent shall never be withheldNOT enforceable in the courts although they are always obeyed by the officials they regulate anyways Conventions in the CourtsAlthough not enforced the existence of a convention has been recognized by the courtsConvention and usage Not a rule but merely a governmental practice wih is ordinarily followed although it is not regarded as obligatoryMay develop into a conventionJust as unenforceable as a usage Convention and agreementIf all relevant officials agree to adopt a certain rule of constitutional conduct then that rule may immediately come to be regarded as obligatory though still not enforceable in the court systemConvention and lawConvention can become law by being enacted as a statute or being enforced by the courts common lawUsually though conventions come about by attitudes of political officials and common laws come about by attitudes of the courtsConvention and legal rules are only separated by one factorbeing enforced by the court and legal systemConventions take legal powers that would be intolerable if they were exercised as written and makes them tolerableAllow law to adapt to changing political realities without the need for formal amendmentPeter Hogg on Civil Liberties in Canada o Civil liberties encompass a board range of values that support the freedom and dignity of the individual and that are given recognition in various ways by Canadian law o There are political legal and egalitarian civil liberties along with language and education rights o Often come into competition with other values recognized by the legal system and indeed with each other o Common LawIncludes many civil liberties but no guarantee of their continued recognition Often what is left unprohibited makes up the civil liberties of speechthus freedom of speech is really just everything that is not prohibited not what someone is explicitly allowed to do or say o Canada and Civil LibertiesDespite the lack of a formalized bill of rights Canada has a good record of respect for civil liberties likely due to the democratic character of Canadas political institutions
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