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Chapter 2

LAW529 Chapter 2: Chapter 2 law 525


Department
Law and Business
Course Code
LAW 529
Professor
Pnina Alon- Shenker
Chapter
2

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CHAPTER 2
Constitutional Aspects
WHAT IS CONSTITUTIONAL LAW?
The Constitution lays the basic foundations of the law
Constitutional law is different from criminal law, corporate law, securities law, contract law and tort law
How is constitutional law developed?
Canada was developed as a colony of the UK. Therefore, a lot of it was developed by the UK
Constitution 1867 divides up what level of government is responsible for what and who can do what
What is the constitutional law that describes the division of powers? Constitution Act of 1867 Why? Because there's other
constitution act (i.e. 1982). Different ones deal with different things
How constitutional law can be amended?
One thing that distinguishes constitutional law from other types of law is its very difficult to amend constitutional law because
in order to amend the constitution, it requires a combination of the federal government plus seven of the provinces comprising a
significant portion of the population
Amendments are therefore very rare
To whom does constitutional law apply?
Applies to governments – federal, provincial, and any entities created by the provincial governments, territories
Subject of constitutional law is governments– this is what the government can or cannot do
What is the relation between constitutional laws and other types of law?
We live in a confederation– there is a split in responsibilities from one level of government to another level of government
Other smaller countries only have one level of government
We have a confederation because we have a very big country
Constitutional law in unitary vs. federal states
We do NOT have a unitary type of law
Why would unitary be easier?
oAdvantages: more simple, having one type of law
oDisadvantages: having more levels of government may be a source of check and balance – more corruption perhaps with
one level of government?
KEY ISSUES IN CONSTITUTIONAL LAW?
What happens when a government passes laws that exceed its authority to address a particular business activity?
What happens when there are conflicts and overlaps between federal and provincial laws addressing particular business activities
What is the constitutional status of federal, provincial and municipal business laws and activities?
How does the constitution address business activities that were never contemplated in 1867?
What remedies are available when a violation of the constitution occurs?
FEDERAL OF DIVISION OF POWERS
Federal powers: Constitution Act, 1867: Allocation of responsibilities between the federal and provincial government
Section 91 –referred to as “heads of power”: the powers the federal government has to make a decision
Peace, Order & Good Government Clause (POGG): federal government has the authority to address issues regarding peace
Federal government has residual powers
*We need to know federal and provincial powers*
oS. 91(2) – Trade and Commerce
oS. 91(15) – (23) – Market Framework Laws: banks, weights and measures, bills or exchange, interest, legal tender,
bankruptcy, patents, copyrights
oS. 91(27) – Criminal Law
PROVINCIAL OF DIVISION OF POWERS
Provincial powers: Constitution Act, 1867: Municipality can at maximum, only have provincial power

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Section 92 –referred to as “heads of power”: sub delegation of provincial powers to municipal government
o92 (9): shop licenses
o92 (10): local works or undertakings
o92 (11): incorporation of provincial companies –If you are only doing a business inside Ontario only
o92 (13): property and civil rights –critically important constitutional authority because they address the business
consumer relationship. It encompasses things like contract law and tort law
o92 (14): administration of justice
o92 (15): punishment for enforcement of law –Provinces can jail people if they are violating the law
o92 (16): generally all matters of a local nature
HOW IS THE CONSTITUTIONAL DIVISION OF POWERS RELEVANT TO BUSINESS?
If a new law is needed, businesses need to know which level of government has authority to address the problem
If a government stipulates that a business is obliged to do something, and the business for some reason disagrees with this
stipulation, they may be able to successfully challenge the law as not properly within the authority of that level of government
CHARTER OF RIGHTS AND FREEDOMS (CONSTITUTION ACT 1982)
The Canadian Charter of Rights and Freedoms guarantees the right and freedoms set put in I subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society
Applies to the federal government and the provinces
Court can declare a law or part of a law unconstitutional
Remedy is up to the court
Fundamental Rights (Page 2-3)
Difference: Canadian Charter of Rights and Freedoms and other “rights” instruments
Does Charter protect businesses, or just individual persons?
oThe Charter protects business interests as well as the Charter can be can be used by businesses to challenge laws that are
not consistent with the Charter
oS. 2 – Charter freedoms benefiting and constraining businesses: “Everyone has the following freedoms of expression,
religion, peaceful assembly and association
Notwithstanding clause is an override of Charter… Lasts only 5 years and expires
Legal Rights (Page 2-3)
S. 7 – Charter rights
oEveryone has the right to “life, liberty or security of the person”, can’t be deprived thereof, except in accordance with
principles of fundamental justice.
S. 11 (d) – Any person charged with an offence has the right… to be presumed innocent until proven guilty according to law….”
oCriminal offences
oRegulatory offences with prison
oRegulatory offences without prison
Equality Rights (Page 2-4)
S. 15 – “Every individual is equal before the law…”
Enforcement (Page 2-4)
S. 24 (1) anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court …to
obtain such remedy as the court considers appropriate…
Application of Charter (Page 2-5)
Who does the Charter apply to?
oS. 32 (1) This Charter applies to the Parliament and government of Canada in respect of all matters within the authority
of Parliament...and to the legislatures and governments of each province in respect of all matters within the authority of
the legislature of each province.”
Charter establishes rights/freedoms of “persons” or individuals vis-à-vis government
oGovernment as legislator (any level)
oGovernment as decision-maker
oGovernment as actor
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