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Canada (161,798)
POLS 2300 (129)
Chapter 5

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Department
Political Science
Course
POLS 2300
Professor
Nanita Mohan
Semester
Winter

Description
Canadian Democracy - Chapter 5 - The Constitution • Although a Constitution is an essential part of demographic politics it does not always ensure that the politics will be democratic • A Constitution is the “fundamental law” of a political system, all other laws must conform to the Constitution in terms of how they are made • It is expected to establish order and resolve problems democratically • A Constitution is a set of rules that governs political life that is broken up in three ways – written documents (laws), the decisions of courts (common law and civil law) and unwritten convention Constitution al Functions • The democracies that we have today are representative of the vote of people who the people appoint politicians to makes decisions on their behalf. • The Constitution describe the foundation of political representation and the method by which representatives are chose o Representation by population – one person, one vote meaning almost all elected members of the legislature should represent the numbers of vote however more democracies now are done by proportional representation o The bigger provinces (ON,QB, the western provinces and the maritime provinces) get 24 seats each o Newfoundland gets 6 and the northern territories each get 3 o A Constitution gives representation to groups – the senate reform guarantees seats for women and Aboriginal Canadians and race o An example would be the Charlottetown Accord which ensured that Quebec maintain ¼ of the seats in the House of Commons who probably would of translated to a representation of the French o The method by which a member of office can be selection is through election and appointment • Power o A Constitution is the root for the legitimate exercise of state power o It also limits and divides power of the legislation under a democratic Constitution • i.e – the Constitution say there needs to be elections every so often which puts on restraint on their power by making the people who are election able to be removed from office which is democratic o Right • A right is something that a person is entitled to – the right to vote Community and Identity • A Constitution establishes a community • Things that establish the community feel are things like having the same national passport or being able to vote in the same election. • It unites all the people of the nation; although one province may feel different from another because they don’t all face the same issues their belief in the sovereignty in Canada is the same. • However, sometimes a Constitution can create positive as well as negative feelings among the members of a political community – like the Quebec separatist who would rather have their own Constitution and not be part of Canada • Two of the most controversial Constitution al issues in the past decade regard official bilingualism and laws that would recognize Quebec as its own sovereign state. • One of the main reasons that it is said that the Meech* Lake reforms to Canada’s Constitution was because they wanted to recognize Quebec as a “distinct society” *Meech lake reforms – this was a list of amendments to the Constitution that was intended to persuade the government of Quebec to endorse the Constitution al amendment. This amendment would make it so that the Constitution would be purely Canadian without intervention from British parliament. It was however rejected because people felt that by giving Quebec the title of a distinct society would be giving them special status Canada's Constitution • The Canadian Constitution consist of a series of laws passes between 1867 and 1982; it is longer and more detailed than the United States Constitution . • Nonetheless, like most things in life the Constitution is flawed. It does not provide full details about how the Constitution actually works. • It is missing almost everything that deals with the democratic accountability of government to the people and on top of that, if everything in the Constitution was acted on, it would probably create a Constitution al crisis o Thing like the Queen being the head of state therefore she can make decisions regarding who will be appointed to the cabinet and such • The Constitution s embodies values and principles that are an essential part of the political life of Canada • Federalism o Federalism means that the Supreme Court recognizes the diversity of the component parts of a nation and the autonomy and capability of the provincial governments to develop their societies within their respective jurisdiction o Therefore, provincial governments are not superior to the federal government and Ottawa can basically do as it pleases when it comes to the exercise of power that was given to them by the Constitution o The written Constitution has laws that clearly state what matters belong to what jurisdiction • Democracy o Before the inclusion of the Charter of Rights and Freedoms in 1982 to the Constitution , many of the laws didn’t reflect democracy and very little had to do with the rights of people o The reason for this was that they had assumed that because it adopted a Constitution similar to the UK it was evident that they were democratic because the UK was. o But this is problematic because who is to say what is democratic? The people in charge are the ones who decide if something is democratic or not. o The Supreme Court made some modifications to the Constitution because they felt as though the Constitution was a federal affair o the majorities (race) may vary from province to province therefore nation wide majority does not trump provincial majority o some of the new clauses were respect for the identities of minority groups and respect to social and political institutions that allow for individuals and groups to participate in society. • Constitution alism and the rule of law o All public authority must exercise their power in accordance with law o Parliamentary supremacy – so long as one level of government does not trespass onto the jurisdiction that the Constitution assigned to another level then it was free to do as it liked. • Protection of minorities o When Canada East (Quebec / French Catholic) and Canada West (Ontario / English Protestant) were joined together under a common legislature it was concluded that any bill that touched on the subject of language or religion in either Ontario or Quebec had to be approved by majority of the legislations. o There are laws in the Constitution regarding minority rights (section 93), minority religious education and the declaration that French and English were to have official status in the Parliament and everything associated with it. The Charter of Rights and Freedoms http://laws-lois.justice.gc.ca/eng/Const/page-15.html • Since 1982 the Constitution has included formal distinction between fundamental political freedoms, democratic rights, mobility rights, legal rights, equality rights and language rights • All of these things are dealt with in the Charter of Rights and Freedoms – some were in the Constitution prior to this but were not established as well as they are today • Fundamental Freedoms o This is guaranteed in section 2 – this includes freedom of religion, belief, expression, the media, assembly and association. o Before the charter these were part of the common law and of Canada’s British parliamentary tradition o Also, the government was unwilling to rule that freedom was beyond interference of government • Democratic rights o The basic democratic right is the opportunity to vote in a regular election o This also addresses the basics of elections and the representation in the house of commons  Legislatures meet at least once a year  The right of citizens to vote  The 5 year limit on the life of both the house of commons and provincial legislature • Mobility rights o This was not in the Constitution before 1982 o Section 6 (which use to be 121) prohibits the provincial governments from imposing tariffs on commodities coming from other provinces o There is no restriction on people – every citizen has the right to enter remain in and leave Canada or enter which ever province they’d like o However, in order to gain social services, reasonable residency is requires • Legal rights o Section 7 o This involves procedural aspects of the law, such as the right to a fair trail, the right not to be held without a charge being laid and the right to a legal counsel o But even before this was in the Constitution through the charter it was recognized under the common law • Equality rights o Section 15 o Rule of law – everyone should be treated equally under the law o This prohibits racial, national, or ethnic discrimination as well as colour, religion, sex, gender, age or mental o
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