con law - nca summary - hogg

Download Con Law - NCA Summary - Hogg

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Outline for Canadian NCA exams.


1Part I: Basic Concepts 1. Sources and Nature of the Constitution Hogg, chapter 1, Sources Reference re Secession of Quebec, [1998] 2 S.C.R. 217 1. Sources and Nature of the Constitution Hogg, chapter 1, Sources Definition Constitutional law is the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative powers (make new laws), executive power (implement new laws) and judicial laws (adjudicating disputes) and what those limitations are. Concerns- Allocation of government powers (legislative, executive, judicial) among central and regional authorities is its basic concern. The protection of civil liberties is also its concern. A constitution has been described as a mirror reflecting the national soul. ConstitutionalismA word used to convey that idea that government is ruled by law. The word rule of law is used to convey the same idea. This describes a society in which government officials must act in accordance with the law. Judicial independence is needed. The rule of law applies to Parliament and Legislatures of the Province. Laws in breach of the constitution may be challenged in court. Constitutional Act 1867 In Canada there is no single constitutional document like the US. The British North American Act 1867(changed in 82 to Constitutional Act 1867) is similar. BNA created a new Dominion of Canada by uniting three colonies of British North America and by providing the frame work for the admission of all other British North American colonies. The BNA act established the rules of federalism but did not break from its colonial past. Missing features of this act: No amending clause in this act & s9 vests authority over Canada by the Queens representative the Governor General but the GGs office is no where created in the Act. No mention or system of responsible government ( the prime minster, the cabinet) It did not write the Supreme Court into the act although s 101 gave authority to create it. Didnt create a bill of rights but relied on British common law. Constitutional Act 1982

3 Important repairs were made in 1982. 1) They were a domestic amending formula was adopted Charter of Rights was adopted. Still very hard to comprehend

2) the authority over Canada of the UK Parliament was terminated & 3) the

Canada Act 1982-a short statue of the UK Parliament which terminated the authority over Canada. The Constitutional Act 1982 -does 2 things which are intended to effect some modernization and rationalization of Canadas constitutional law. 1) the name of the BNA act is changed to the Constitutional Act 1867. 2) for the first time a defining of the phrase Constitution of Canada

The Constitution of Canada s52 ( 2) The Constitution of Canada includes: (note: definition of the Constitution of Canada) a) The Canada Act 1982, including this Act; b) the Acts and orders referred to in the schedule; and c) any amendments to any Act or order referred to in paragraph (a) or (b) Definition- It includes 3 categories of instruments. a) The Canada Act 1982 (includes the Constitution Act 1982 Schedule B) b) the Acts- is a list of 30 Acts and orders in the schedule to the Constitutional Act 1982. (includes The Constitution Act 1867, its amendments, the orders in council and statues admitting or creating new provinces and boundaries, and the statue of Westminster. c) comprises new amendments which may in the fute be made to any of the instruments in the first two categories.

The Charter of Rights is part of the Constitution of Canada because it is Part 1 of the CA act 1982. Health Services Bargaining (2007) where court held that that a statue was invalid as a breach of freedom of association. This makes collective agreement negotiations between a union and an employer now superior to a statue. Includes in s 52(2) indicates that the word is not exhaustive. This was supported by SCC in the New Brunswick Broadcasting Co. v Nova Scotia (1993). The held the unwritten doctrine parliamentary privilege should be included in the s52(2) definition even though no mention of it. The courts decision means the definition can be expanded. Hogg believes that it is best to leave the courts decisions to unwritten doctrines and written doctrines as exhaustive. The new schedule omits the pre 1867 instruments which governed Ont and Qbe and The Royal Proclamation of 1763, the Quebec Act 1774, the Constitutional Act of 1791 and the Union Act of 1840. The Supremacy Clause is 52(1)-This makes it the supreme law of the country.



The Entrenchment clause- 52(3)- This entrenched the Constitutions Act 1982 and makes it only amendable by the proscribed procedure. Imperial statues- Hogg 1.5

Parliamentary Privileges

The federal Houses of Parliament and the provincial legislative assemblies posses a set of powers and privileges that are necessary to their capacity to function as legislative bodies.This was supported by the SCC in New Brunswick Broadcasting Co. v Nova Scotia (1993) where strangers were excluded from the Nova Scotia legislative assembly. Parliamentary Privileges- regarded as a branch of the common law as it is not contained in any statute or other written instrument and it is the courts who determine its existence and extent. 2 peculiar characteristics of Parliamentary Privileges stated by the SCC in New Brunswick Broadcasting Co. v Nova Scotia (1993) 1) It is part of the Constitutions of Canada 2) the powers authorized by parliamentary privilege are not subject to the Charter Rights. Is different from royal prerogatives and other common law powers of government. No difference between in constitutional status between legislative privileged and inherit privileged-both are exempt from the Charter. Parliamentary Privileges- also includes freedom of speech in debate, including from legal proceedings for things said in debates. It also includes right of members of parliament or legislative assemblies not to testify in court proceedings while Parliament or the Legislature is in Session.


The royal prerogative consists of the powers and privileges accorded by the common law to the Crown. The prerogative is a branch of the common law, because it is the decision of the courts which have determined its existence and extent. Case of Proclamations (1611). They are powers and privileges that are unique to the Crown.

Conventions Definition- Conventions are rules of the constitution that are not enforced by the law courts. Because they are not enforced by the law courts, they are best regarded as non-legal rules, but because they regulate the working of the constitution, they are important. They prescribe the way in which legal powers shall be exercised.

A) Convention in Courts although not enforced by courts, the existence of a convention has occasionally been recognized by the courts. ie- Liverside v Anderson [1942] conventions of responsible government which make a minster accountable to Parliament as a consideration in deciding to give a broad rather than narrow interpretation to a statue conferring power on a Minster. Patriation Reference (1981)- SCC was asked whether there was a convention requiring that the consent of the provinces be obtained before the federal government requested the United Kingdom to enact an amendment to the Consti of Canada. That would affect the provinces. The court was also asked whether there was a legal requirement for provincial consent. B) Convention in Usage- A convention is a rule. A usage is not a rule, but merely a governmental practice which is ordinarily followed, although it is not required as obligatory. ie of Usage- the practice of appointing to the position of Chief Justice of Canada the person who is the senior puisne judge of the SCC at the time of the vacancy. This practice has been departed with the appointment of McLachlin in 2000. A usage may develop into a convention. The process of evolution from usage to convention may be called a custom. A convention is as unenforceable as a usage. There is a strong moral obligation to follow a convention than a usage and departure from a convention will be criticised more. Patriation Reference ( 1981)- Hogg 1.10(c) the court found the convention required a substantial degree of provincial consent but it was not necessary to decide exactly what the requisite degree is. C) Convention in Agreement- A convention can be established by all relevant officials agreeing to adopt a certain rule of constitutional conduct, then that rule may immediately come to be regarded as obligatory and are usually written down by the officials in precise and authoritative terms. (ie-1930 when the Prime Minster of the self governing dominions of the Commonwealth agreed that the king ( or Queen) would appoint the Governor General of a dominion solely on the advice of the government of the dominion.) D) Convention and Law A convention could be transformed into law by being enacted as a statue. A convention would also be transformed into law if it is enforced by the courts. If a court did enforce a convention (and admittedly no court has ever done so), the convention would be transformed into a legal rule. Why do people obey them if not law? The breach of a convention would result in serious political repercussions and eventual changes in law. Conventions regulate the way in which legal powers shall be exercised and bring outdated legal powers into conformity with current notions of government. Their purpose is to is to ensure that legal framework of the values or principles of the period Re: Resolution to Amend the Constitution [1981] 1 SCR E) Convention and Policy- Public School Boards Assn v Alta. [2000} & English Catholic Teachers Case v Ont [2001]- public school supported argued that provincial educational statues violated a constitutional convention. Held- in both cases that no convention restr