rights and freedoms unit 2. canada’s constitutional law chapter focus explain the role of the...
TRANSCRIPT
Canada’s Constitutional LawChapter Focus Explain the role of the constitution Explain how constitutional law
developed Distinguish law makers powers Explain the role of courts Understand key events in
constitutional history
The Importance of the Constitution Provides the the basic framework
for the nation’s form of government Allocates power to the provinces Sets out the procedures for making
laws, and amending them Reflection of society Written and unwritten
3 Sources of Canada’s Constitution Constitution Act, 1867 ( BNA act) &
Constitution Act, 1982 Unwritten Constitution Court rulings that interpret the
written constitution (precedents)
British North America Act,1867
Written by fathers of confederation
Changes had to be passed by British parliament
Patriated in 1982, renamed Constitution Act, 1982
Canada’s Unwritten Constitution The original document (BNA Act)
made no mention of Prime Minister, however it did contain the line “a constitution similar in principle to that of the United Kingdom”
Many of Britain's systems were adopted here, and became part of our government
Court Decisions (Common Law)
The third source of Canadian constitutional law
Settle disputes over the meaning or intent of certain sections, phrases, and even individual words
Government must abide by decisions
Components of ConstitutionThe Division of Powers The Provincial level was given
jurisdiction over regional and local concerns, such as Education and Healthcare. Municipalities were not given powers under the constitution; the provinces created municipalities as an extension of their jurisdictions.
Federal JurisdictionSection 91 Banking Bankruptcy Census and statistics Citizenship Court procedures Criminal law Currency Defence
Employment ins. Foreign affairs Immigration Indian Affairs Marriage and Divorce Penitentiaries Taxation Trade and commerce Patents and
copyrights
Provincial JurisdictionSection 92 Direct taxation Labour unions Hospitals/Health
care Organization of
municipal governments
Natural Resources
Property law Justice Education
Intra Vires and Ultra Vires What happens if there is a disagreement
over an area that is claimed by two levels of government? Court decides If an action by a legislature (provincial or
federal) is within its jurisdiction that legislature has acted intra vires its authority
An action by a legislature (provincial or federal) that is outside its jurisdiction that legislature has acted ultra vires its authority
QueenGovernor General
Legislative Power Executive Power Judicial Power
House Of Commons Senate Prime MinisterSupreme Court
Courts Of AppealLegislative
Branch
Executive Branch
Cabinet
Federal Court Of Appeal
Provincial Court Of Appeal
Judicial Branch
THE GOVERNMENT OF CANADA
Structure of Government
ParliamentThe Role of the Courts The role of the courts is to interpret the
constitution and to solve disputes between the levels of government.
Judgments made in lower courts such as the Provincial Courts or the Federal Court can be appealed to the Appeals Courts, Supreme or Superior Courts, and ultimately to the Supreme Court of Canada.
Judgments made at the Supreme Court of Canada cannot be overturned, and become “Legal Precedent” and therefore part of Case Law.
Provincial Court (Province A)
Provincial Court(Province B)
Federal Court(Trial Court)
Tax CourtSupreme Court (Trial Court)
Court of Queen’s Bench(Trial Court)
Court of Appeal(Province A)t of Appeal
Court of Appeal(Province B)
Federal Court of Appeal
Court MartialAppeal Court
Military Courts(Various Types)
Supreme Court Of Canada
Judicial Committee of the Privy Council Located in London England, this body was
part of the British Court system and not a Canadian court.
The JCPC was the highest court of appeal for Constitutional matters until 1949, when The Supreme Court of Canada assumed this role.
The JCPC overturned a Supreme Court of Canada decision in 1929 with the famous “persons case”, allowing women to be appointed to the Senate.
The 1929 Person's Case
October 18,five Alberta women won their fight to have women declared “persons” under the law. The battle stemmed from an 1867 common law ruling that "Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges."
With her sights set on a Senate seat, Emily Murphy joined forces with four other like-minded women, Irene Parlby, Nellie McClung, Louise McKinney and Henrietta Muir Edwards, to appeal to the Supreme Court of Canada for clarification of the definition of the word ‘person’ as it appeared in the British North America Act.
Patriation of the Constitution Patriation of the constitution meant that
Canadians would fully control the constitutional law, and that they would be able to develop an amending formula for any future changes to constitutional law.
Legal Convention had required that the provinces must support any new amending formula.
Constitutional Amendments
The Meech Lake Accord (1987) Allowed “distinct society” status for Quebec in
order to protect cultural and religious aspects of Quebec’s society.
Gave the provinces more power in the areas of Senate and Supreme Court nominations.
Meech Lake failed to recognize the concerns of aboriginal Canadians.
Was not ratified by all provincial legislatures before the deadline and therefore expired.
As the member for Rupert's Land, Elijah Harper stalled the Manitoba legislature past the deadline for approval of the Meech Lake Accord
…Constitutional Amendments The Charlottetown Accord (1992)
In addition to Quebec’s “distinct society” status, Aboriginal self-government was addressed.
The process for selecting the Supreme Court Justices would be “entrenched” in the constitution.
The Senate would be elected The accord failed by referendum in six
provinces and one territory.
1995 Quebec Referendum Failure to make agreement directly
led to another vote in Quebec Led by Lucien Bouchard