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LS 202 (9)
Chapter 8

Chapter 8 textbook notes.docx

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Department
Legal Studies
Course
LS 202
Professor
Addie Nelson
Semester
Winter

Description
Chapter 8- Constitutional Law - most fundamental laws of our system - constitution: a body of law, which establishes a framework for a government and is the supreme law of the country - constitutional law is the system of written and unwritten principles that defines what power we give to our government while still protecting individuals and certain groups - formed from conventions, statutes, proclamations, and court decisions - 3 branches of government: executive (Queen and cabinet), legislative (house of commons, senate, governor general), and judicial (judges) - this separation of powers allows the system to run efficiently in that the rule of law is maintained - Constitutional law overrides all other laws in Canada - British North America Act  Constitution Act 1867 Privy Council and The Supreme Court - 1949 federal bill abolished the right of appeal to Britain and replaced it with the right of appeal to the newly formed Supreme Court of Canada - Important for judiciary branch to be separate from government and is protected in the Constitution Act - Judges must be free to make any decision against the government if a law is inconsistent with the Constitution - Judges are also immune from legal action Parliamentary Supremacy - Adopted from Britain - Parliament can make/repeal laws and no one is above the law - S. 52 of Constitution Act” if law is consistent with the Constitution is it of no force and effect Conventions and Prerogative Powers - Conventions are important to constitutional law - Most germane convention: role of judges and courts in the government and their independence from the executive and legislative branches of government - Important b/c they “Clothe the legal framework of the formal Constitution and provide a large measure of flexibility, the operation of the Constitution can be significantly changed without having to directly amend the Constitution Acts or other legal aspects of the Constitution” - Prerogative powers: are the priveleges accorded to the Crown..some of these include: dissolve parliament, make treaties, to issue passports, grant honours/awards, emergencies, and appoint themselves ambassadors Amendment - 1981 Government agreed to change our own constitution  Amending formula - Completed in 1982, Constitution Act now contained the Canadian Charter of Rights and Freedoms - Constitutional law and the division of powers have remained stable b/c of the amending formula that is required to make a change in the law - Must be consent from Parliament to change the Constitution, then 2/3 of provinces must agree - If 3 provinces find the change unacceptable, these provinces have the ability to “opt out” so the changes won’t apply in those jurisdictions Structure of the Constitution Act 1982 7 parts 1) Canadian Charter of Rights and Freedoms 2) Rights of the Aboriginal Peoples of Canada 3) Equalization and Regional Disparities 4) Constitutional Conferences 5) Procedure for Amending the Constitution of Canada 6) Amendment to the Constitution Act 1867 7) General Division of Powers - Constitution lists the powers of the federal, provincial, and territorial governments and which are that can legislate - S. 91=powers of federal gov - S. 92=powers of provincial and territorial gov - S. 93=power to the provinces and territories over education - Often disputes b/w the levels of government exceeding their jurisdiction - The “Peace, order and Good Government” clause give the rest of the legislative power that is “left over” to the federal government..this was done to avoid leaving powers to the local government - Only exclusive federal powers are: military defence, veterans affairs, the postal service and monetary policy - Exclusive provincial powers: municipal institutions, elementary/secondary education and some areas of law related to property and other non-criminal matters Territorial Powers - Legislation dictates the powers that can be controlled by territorial governments, which takes the language from ss 92 and 93 of the Constitution Act but these powers may be taken away by the federal government without using the amending formula that would be used w/ a province Constitutional Issues and the Courts - Difficult for courts to interpret whether things are in the jurisdiction of the federal or provincial government - Factual dispute w/ the government or an individual who alleges that a statute is unconstitutional because it is outside the powers of the legislating body court decides - Courts may also hear these issues if a party to a legal dispute contends that the interpretation of the legislation makes it beyond the powers of that level of government (ultra vires) - And reference: federal government may ask the courts for an opinion regarding federal or provincial legislation..although these decisions are technically non-binding, go
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