Rights and Freedoms

Unit 2

What’s Ahead Chapter 4 Canada’s Constitutional

Law Chapter 5 The Charter and the

courts Chapter 6 Human Rights in Canada Chapter 7 Majority and Minority

Rights

Chapter Four 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

Constitution Act, 1982 Included

Canadian Charter of Rights and Freedoms, and an amending formula

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

Conventions Conventions are unwritten rules of

political conduct, over time they become binding. And develop into important principles

An example is the idea that a Cabinet member must resign if he or she does not agree with a decision reached by cabinet, referred to as “Cabinet solidarity”

Lucien Bouchard Left Brian

Mulroney’s cabinet in 1990 after the failure of the Meech Lake accord, went on the become premier of Quebec and led Separation Referendum

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

Pith and Substance Doctrine

Court uses the pith and substance doctrine to determine whether or not the action is legal in areas where both levels of government have claimed authority Determines what was the overriding

purpose of the law Read page 146 “Pith and Substance”

QueenGovernor General

Legislative Power Executive Power Judicial Power

House Of Commons Senate Prime Minister Supreme 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

provincial courtssuperior courtscourts of appealSupreme 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

1995 Quebec Referendum

50.56 % voted to stay

Issue for discussion Should the government fund

private religious education?