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Constitutional Law Master.doc

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Philosophy 2080
James Hildebrand

1Constitutional LawConstitutional Law A body of law that prescribes the extent and the limits of state authority government power Show the values of the nation Civil liberties component of constitutional law Basic rules to guide law enforcement process Think about who we are and how we came to beConventions Unwritten rules which are an element of Constitutional law even though strictly speaking they are not laws There is a presumption that conventions will be obeyed since if this is not done there are often political repercussions An example of a convention is the office and powers of the PM Conventions have no statutory definition or law describing definition of the prime minister Lots of things we do are not written down A convention is not a legal rule not a law Its the way things have always been done over timemuch just like a law Not to be enforced by courts Describe how legal powers are usedIf royal assent with held would have been political response so conventions usually obeyed If queen said no we would make effort to change law Convention might be used in court to interpret laws Conventions are created a by agreement or by usage over time b by recognition of parties over time that they are bound to follow the usage or practice c that there is a reason for the practiceNot legal rules but always followed3 provinces went to SCC to ask for references on 2 questions Is there a convention requiring for the agreement of the provinces before going to England Should we always do thisIs there any law that compels the federal government to get the consent of the provinces before they go request it to SCCSaid no law no legal requirement Federal government can just go to England to get constitution changed dont need consentBut convention that a substantial number of the provinces should be in agreementCharter of Rights and Freedoms 1982 A Body of Law describes limits and exercises of the power of the state definition of constitutional law Documents case law conventions Examples of limits extent of powers of authority of state Notwithstanding Clause If a body of government wants to pass legislation that is unconstitutional they can do so in spite of the violation by relying on s 33 These laws need to be revisited after 5 years with this time limit existing because if legislation openly goes against the Charter then they need to see if it withstands opposition after a number of years An example of use of this clause was for Bill 101 the French only sign laws that existed in Quebec Section 33 dilutes the power of charter to some degree bc governments can opt out of charter when they go to sec 33Doesnt imply every section of charter howeverSection 33 Notwithstanding clausedrafted to get substantial consent of provincesNotwithstanding means despiteallows provincial governments to opt out of certain laws in Charter rights and freedomWe want to operate notwithstanding the fact that we know the law operates differently then what it says in the CharterOpting out is only good for 5 years then must be redoneVery rarely usedPeople who are not fans of this clause thought it would weaken the Charter Rights and Freedoms but that hasnt happenedSupreme Law This refers to the Constitution and Charter saying that all laws have to be consistent with them S 52 states that any laws inconsistent with the supreme law have no force and effect Charter says that charter of rights ands freedom is supreme law of CanadaAny conflict between any other statues of law charter will govern Its trump card It is entrenched It can be only changed by amending formula 2Entrenched Stuck This means that entrenched laws cannot be changed by ordinary legislation rather only according to amending formula in the Charter which requires 710 provinces representing 23 of the population This formula basically shows us how unlikely it is that the Constitution will be changed Ultra Vires Outside power jurisdiction This term is usually used referring to s 91 and s 92 of the Constitution Act 1867 to say that if either order of government makes a law that is ultra vires then it is unconstitutional Whether or not the legislator is outside the power of the legislature that made the lawDoctrine of Paramountcy Federal legislation will prevail over provincial where two properly enacted laws conflict or contradict each other Sometimes legislation by the federal and provincial government will bump up against each othereg spousal relationship and then you get separateddivision of property and support obligations are determined by Family Law Act provincial legislationIf you are a native person and live on a reserve real property on a reserve is governed by legislation called The Indian ActSome cases where the Family Law Act and the dictates of the Indian Act contradicted each otherThe rule is as long as both pieces of legislation are properly enacted the federal legislation will prevailSection 91 is Federal Govtbankruptcy trade and commerce criminal law copyrightProvincesproperty of civil rights whatever isnt on this list goes to the federal governmentDoctrine of Parliamentary SovereigntySupremacy The notion that Parliament can make any law it wants This flies in the face of the fact that the Constitution is the Supreme Law which really gives the judiciary the highest decisionParliamentary supremacy is a positivist conservative notion which was very prevalent in Canada until 1982 It basically means that the sovereign could make any law that the sovereign wanted This goes against the current state of Charter litigation which challenges governments rights to make lawsJudicial Activism This is the opposite of Parliamentary Supremacy and basically means that courts are making laws over stepping their bounds by challenging the constitutionality of laws Ideally theyre not supposed to be legislatorsComplaintCourts are interfering when they try to limit or challenge legislationTaking too much power onto themselvesWhat people say the judges are doingtaking on too much powerEven though we are concerned Federal government now wants to do something about thisWant to have committees and representatives helping select people to be appointedWant to change the processIn the US judges are electedIn Canada Judiciary is independent Traditional activism we have the Supreme Court of Canada judges are appointed to jobs they cannot be elected or removed for decisions that they make Theyre not immune from the popularity of politics If the government passes law we dont like we get rid of them We feel empowered part of process Judges are not bounded by limitations Retirement age 75 Mandatory come back supernumerary Hired back on Cannot be removed from office for decisions they makeJudges are appointed not electedso we dont have a say3Not an elected judiciaryNot accountable for decisions The positivist idea is that the judiciary shouldnt interfere with making laws because they are not elected cant really be kicked out and may not really represent the people Evolution of Law in Canada Our government system comes from England BNA Act1867 it prescribed the rules of government how to govern Canada it is an act of British parliament Set out authority of the provincial and Federal governments Sec 91 and sec 92 Sec 91 Federal Sec 92 Provincial powers The British North America Act BNA Act of 1867 was the act for the governance of the colony of Canada This Act set out the powers or the executive legislature and judiciary in Canada and was the first constitutional document At this point only the British government could change the powers because there was no amending clause permitting the Canadian government to do soBritish North America ActFirst constitutional document1867Wasnt really Canadian independentThis was a statue enacted by the British Parliament set up for rules of governance for the colony of CanadaLegislature for provincial and federal governmentHow the country will be runHow judges will be appointedA lot of talk about Canada being another stateWorried about this Population in Canada was mainly French and those from UKBritish were also getting nervous because the French was setting up a fairly autonomous system of governmentReasons for enacting legislation in England for the colony of CanadaUntil 1949 the highest court in Canada was still the Privy Council in England Regarding the division of powers s 91 outlines the federal powers eg criminal law and s 92 outlines the provincial ones eg property and civil rights This division is not an exhaustive list of all powers for example the powers of the Prime Minister were left out Bill of rightsDefine basic human rightsGovernment cannot transgress these when making a lawBasic human rights no matter whatFederal statue from 1960Canada ActBefore 1982 a lot of constitutional law dealt with the division of powers For example the provincial government tried to argue that gun registration and regulation was not under federal jurisdiction as it involved property which was under provincial jurisdiction Note they lostThe repatriation of the constitution took place in 1982 under PM Trudeau so that Canada would no longer need to go to England for their royal ascent on everything ie which was basically just ceremonial ie a rubber stamp
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