Canadian Constitutional Law PDF

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Canadian Constitutional Law Week 1: Introduction Module Information Three Sections: (a) Federal and Provincial Division of Powers (choose 3 out of 6) section 91 and 92 (case law), modelled after mock nca exam its similar to. (b) Problem Question (choose 1 out of 3) (c) Essay Question (choose 1 out o...

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Canadian Constitutional Law Week 1: Introduction Module Information Three Sections: (a) Federal and Provincial Division of Powers (choose 3 out of 6) section 91 and 92 (case law), modelled after mock nca exam its similar to. (b) Problem Question (choose 1 out of 3) (c) Essay Question (choose 1 out of 3) (Canadian, political legal history). Problem Questions? “Harry and Mark were two friends of Aboriginal descent who lived next to each other on an Aboriginal reserve. One day they decided to walk to a convenience store off the reserve to get something to drink. When they approached the convenience store they noticed that the owner had put up a sign outside the door which said ‘No Natives Allowed on Premises’. Harry and Mark believe this is not only unfair but also unlawful. They have come to you to seek legal advice. Advise Harry and Mark about whether any of their constitutional rights have been infringed by the owner’s signage.” Problem Question: Always Think ILAC! Using ILAC “Harry and Mark were two friends of Aboriginal descent who lived next to each other on an Aboriginal reserve. One day they decided to walk to a convenience store off the reserve to get something to drink. When they approached the convenience store they noticed that the owner had put up a sign outside the door which read ‘No Natives Allowed on Premises’. Harry and Mark believe this is not only unfair but also unlawful. They have come to you to seek legal advice. Advise Harry and Mark about whether any of their constitutional rights have been infringed by the owner’s signage.” Law  s.15 of the Constitution Act which states… Apply the law  legal principles; precedents; s.1 analysis. Conclusion  ‘play the judge’; suggest (if available) any remedies. Canadian Constitutional Law Week 1: Canada’s Constitutional History Introductory Question: (1) What is the difference between the ‘Canadian Constitution’ and ‘Canadian Constitutional Law’?

(2) What are some of the impediments Canada faced during the long road to patriating its constitution? Federal Makeup of Canada 10 Provinces: Newfoundland & Labrador, Nova Scotia, Prince Edward Island, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta & British Columbia. 3 Territories: Yukon, Northwest Territories & Nunavut. Provinces acquire political power from the Constitution – each has equal power. Territories acquire political power through devolution of power from Federal Government. Power is shared between provinces and federal government – each has distinct jurisdictional competences. Provinces have own level of government. Federal statutes have established legislative authority for territories, territories have begun to make more federal decisions. Federal government has power to enact certain types of laws, provincial has power over other certain types of laws. Canadian Constitutional Law What is a ‘Constitution’? Blue print on the principles on which the state is based. 1982 constitution, it is codified, lays out fundamental rights, government has to comply with fundamental rights, the constitution is entrenched and cannot be changed easily. The principles emerged out of various political struggles, principles like multiculturalism. (1) A body of rules which set out the basic foundations of how a society’s laws or rules are to be made and changed. (2) Entrenched? Harder to amend than regular laws. What is ‘Constitutional Law’? (1) Body of rules which prescribe how the organs of the government exercise legislative, executive, and judicial power – and the limits on those power. (2) ‘Constitutionalism’ – used to convey the idea of a government that is limited by law (‘rule of law’). (3) Common law vs Civil law tradition. Constitutional Themes 1. Federalism – or the federalist structure of our government; the division of powers between the provinces and the central government. Divisional powers. 2. The primacy of the Constitution and the Rule of Law doctrine– the idea that all laws and forms of governance must comply with constitutional principles, and the doctrine that it should be law and not the arbitrary decisions of government officials which should guide or administer the nation. Meaning that the law should act as a constraint on the government. Constitution is supreme law of Canada, acts as a constraint on government.

3. Respect for minorities – recognition of our ethnic, religious, cultural, and linguistic diversity, and the accommodation of differently situated peoples. Fostered through a history of French oppression, aboriginal culture, immigration has helped the development for this principle. 4. Democracy – a form of government in which citizens participate either directly or through elected representatives. So it’s a form of self-government. Canadian Constitutional Law: Concerned with two overarching relationships: (1) How to allocate legislative and regulatory power between the two levels of government? Who has power in Canada to make what sort of laws, relationship between levels of government. ‘Jurisdictional Competence’ (2) What are the limits on the government’s powers in relation to its citizens? ‘Constitutional Rights’ (charter rights), what rights do government owe us and what happens when they violate those rights. Module Structure Structure of Constitution Constitution Act (1982) is not single document but comprised of approximately 30 separate statutes, it is written and entrenched. Some are entrenched documents The BNA Act of 1867 The Colonial Validities Act of 1865 The Statute of Westminster of 1931 The different Terms of Union for each of the provinces The Charter of Rights and Freedoms Some are non-entrenched documents The Supreme Court Act The Canadian Bill of Rights And the Citizenship Act Canadian Political history -Current day Canada was settled by the British and French during the 17th & 18th century. -When Europeans arrived the existing indigenous populations had been living on large tracts of the settled land for over 12,000 years.

-French arrived in present-day Nova Scotia and Quebec City in 1604. -English King Charles II gave exclusive trading rights within Rupert’s land to Hudson’s Bay Company in 1670. -1759 Battle of the Plains of Abraham (end of French empire). -Royal Proclamation Act (1763) (important first step for aboriginal rights, Indian magna carta, developed treaties between Indians and British, was written by British colonists, without negotiation, was favourable to aboriginal roots but took away their property rights, it gave the crown a lot of opportunity to control the price of the land, was a good thing for aboriginal that it recognized the rights of land but took away rights as well. Is it still valid today? It still is and has never been overruled, section 25 of constitution, no laws can take away rights from aboriginal people.., aboriginal people have continuously had to reiterate their rights for land). -Document that sets out guidelines for the European settlement of North America. -Issued by King George III to officially claim British territory in North America after French defeat and the ceding of previously French territory under the Treaty of Paris (1763). -Established the constitutional framework for the negotiation of treaties with the Aboriginal inhabitants in Canada. Reaffirms Aboriginal title over the claimed land, and explicitly states that this title existed and continues to exist, and that all lands would be considered ‘Aboriginal lands’ until they are ceded by treaty [Referred to as the Indian Magna Carta]. -Quebec Act (1774)-For better control. -Allowed for religious freedom for Catholics and allowed them to hold public office. -Restored French Civil Law and British Criminal Law, remains today. -Appointed legislative council and governor of Quebec would jointly be responsible for legislating for the ‘peace, welfare, and good governance’ of the colony. -Meant to rectify the problems created by Royal Proclamation of 1763. -British policy of tolerance towards the French and the right to religious freedom that it engendered has become embedded within our current constitution and is now perceived as a fundamental constitutional principle. Constitutional Act (1791) -Enacted by the British and divided Quebec into two colonies – Upper (Ontario) and Lower (Quebec) Canada. -In each colony, legislative power was vested in a lieutenant governor and an appointed legislative council and an elected legislative assembly. -Laws passed within each colony would need to have the approval of the legislative assembly and the legislative council, as well as the approval of the governor.

-property relationships were being regulated by French civil laws but wanted british laws to regulate them. -The appointed bodies were not accountable to the elected bodies, so rebellions between upper and lower Canada. Lord Durham criticized colonial governments. -Responsible Government Colonial Validities Act (1865) (supremacy of the british parliament) -Enacted by British Parliament to address inconsistencies between colonial and imperial legislation. -Colonial laws repugnant to the laws of England were declared void and inoperative. -Reasserted the doctrine of parliamentary supremacy. Gave colonies the power to enact their own courts and to make provisions for the administration of justice. -French felt that this was a way their culture and language would be eroded. British North America Act (1867) -Forms the basis of current constitution (also known as the Constitution Act [1867]) -Established the dominion of ‘Canada’ – a self-governing part of the British Empire. Unified Upper and Lower Canada, Nova Scotia, and New Brunswick. -‘Residual Power’ - Federal legislature given power to legislate on all matters not explicitly assigned to provincial legislature. -Provided for a centralised federation -Could not be amended by the Canadian government, therefore changes had to be requested of Westminster. -Britain was permitted a veto over all bills passed by Canadian government. -Canadian cases were still appealed to the Judicial Committee of the Privy Council (JCPC) until 1933 (for criminal cases) and 1949 (for civil cases). Statute of Westminster (1931) (got rid of the colonial validity act) Canada received full legislative independence. Passed on December 11, 1931 -Result of intense negotiations between Britain and Dominion of Canada -Abolished the provisions of the Colonial Validities Act (1865) -Recognised the political equivalence of Canadian Parliament and Britain -Full legislative independence for dominion of Canada

Constitution could have been patriated at this time, but provinces could not agree on amending formula. This meant that only the British Parliament had the ability to amend the BNA Act. Bill of Rights (1960)  Constitution act (1982) -Passed by Federal Government in 1960 -Outlined the fundamental freedoms of all, including legal rights, and equality before the law. -Not entrenched, but provided that all subsequent laws not be interpreted in contravention of rights enumerated within the Bill. It didn’t mean that those rights contained in the bill could be taken away. Changes to it could be made very easily. -Fuelled movement for a Canadian Constitution -Enacted in 1982 (BNA Act + Amendments + Amending Formula + Charter of Rights and Freedoms). -‘Entrenched’ – cannot be abrogated; and all laws inconsistent with the Constitution are ruled as ‘invalid’ by the Courts. Sources of the Canadian Constitution ( constitution of the state is much more complex) 1. Written Components (s.52 of Constitution Act 1982) Sets out the basic structure of Canada’s system of government, which divides power between federal and provincial governments. Reflects the organizing principles of the government, and lists the government power. Where did the rules and principles come from, the constitution has three main sources first are the written components, unwritten, and judicial ruling. Royal Proclamation (1763) The Quebec Act (1774): religious tolerance. Statute of Westminster (1931): The Constitution Act (1867) The Constitution Act (1982) part of the Canada Act (1982) Manitoba Act (1870) Alberta Act (1905) Sources of the Canadian Constitution 2. Unwritten Components -Principles which can be traced to our British Common Law heritage

e.g. responsible government, respect for democracy, independence of the judiciary, rule of law. -Conventions – customary practices, or longstanding or enduring norms, habits, or standards of law. e.g. All passed Bills must receive royal assent -Not ‘law’ therefore cannot be enforced by the Courts, but can be enforced politically. -Can carry as much (or more) weight than written constitution e.g. New Brunswick Broadcasting Co. v. Nova Scotia (1993): We have the plaintiffs which are New bruns, film the proceedings, the speaker rejected the request, plaintiff brought case to court, rejection of the request was unconstitutional and violated section 2(B). Majority opinion said that the Canadian charter of rights and freedom does not apply, preamble of the constitution it says that the constitution of Canada is similar to the UK and parliamentary privilege is one of those principles, perform duties free of external conventions, unwritten legal principle. -There are unwritten materials as well, supreme court act and aboriginal treaties. They are constitutional. They are drafted based on judicial independence, they are not subject to the same amending procedures. Sources of the Canadian Constitution 3. Judicial Rulings -An unwritten component of the Canadian constitution -Interpret the written constitution. These rulings become precedents, or guides to be used in settling further constitutional cases. -Governments must comply with these judgements -‘Breathes life’ into the Constitution – allows for change over time. Controversial? patriating the Constitution -Constitution relies too much on JR and ends up being bias. The Concerns of French Canada -Reference Re Amendment to the Canadian Constitution (1981) & Quebec Veto Reference Case (1982).1 Supreme Court of Canada opinion on whether there is a constitutional convention giving the province of Quebec a veto over Amendments to the Constitution of Canada. The issue arose during patriation debates, after the Supreme Court ruled in the Patriation Reference that there is a constitutional convention requiring "a substantial degree of provincial consent" for amendments to the Constitution of Canada. In November 1981, the Government of Quebec ordered that a reference be taken in the Quebec Court of Appeal, asking whether the consent of the Province of Quebec is required, by constitutional convention, for constitutional amendments affecting the legislative competence of the Quebec legislature, or the status or role of Quebec's government or legislature. On April 7, 1982, the Quebec Court of Appeal answered in the negative. By that time, the Canada Act 1982 had already been passed by the UK Parliament, though not proclaimed in force. On April 13, 1982, the Attorney General of Quebec appealed to the Supreme Court of Canada, but on April 17, 1982, the Canada Act 1982 was proclaimed in force by the Queen. In June 1982 the Supreme Court heard the appeal. On December 6, 1982, the Supreme Court rendered judgement, upholding the opinion of the Quebec Court of Appeal that Quebec did not have a veto by constitutional convention.

-Meech Lake Accord (1987): The result was the Meech Lake Accord, an agreement between the federal and provincial governments to amend the Constitution by strengthening provincial powers and declaring Québec a "distinct society." Political support for the Accord later unravelled, and it was never put into effect. -Charlottetown Accord (1992): The Accord would have also decentralized many federal powers to the provinces, and it was ultimately rejected by Canadian voters in a referendum Aboriginal Self-Government -Entrenching of Aboriginal rights in 1982 Constitution. Has been very powering, nothing in the constitution can be interpreted as in violation of aboriginal rights and all Canadian laws must remain compliment with the aboriginal rights. -Recognition of Nunavut as a territory. Amending Procedures

Section 52 c prevents courts from striking down legislation. Responding to the Introductory Question: What is the difference between the ‘Canadian Constitution’ and ‘Canadian Constitutional Law’? Constitutional law is a branch of public law, the body of rules regulating the functioning of the state. At its heart is the Constitution—the supreme law of Canada—which comprises written, statutory rules, plus rules of the common law (a living body of law that evolves over time through decisions of the courts), and also conventions derived from British constitutional history. The conventions themselves are recognized by the courts but are not, strictly speaking, part of constitutional law. Relationship is the different levels of government, what happens when different level makes laws, relationship between state and citizen. What are some of the impediments Canada faced during the long road to patriating its constitution? Concerns of the French Canadians, wanted their own culture and language to be protected. Aboriginal rights. How should political power be distributed? •

University of Sussex, School of Law February 6th, 2017

Lecture no. 3 Canadian Courts and the Supreme Court of Canada •

Canada and United States: Federations – National Gvm’t – Sub-National units

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Confederation: Union of states, where the states retain majority of the power Federation: Union of subnational units (states or provinces), where the federal government that is assigned by the state the majority of the power, whatever kind of legislation the federation enacts trumps over legislation and sometimes constitutions enacted by subnational units.

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US constitution is supreme, everything that is contrary to US constitution has no effect. The same Canada, the supremacy clause, every enactment whether provincial or federal that goes against the constitution is of no effect.

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US and Canada differ in systems, in the judicial systems. In Canada there is no Supreme Court, that is the main difference. In US there are three different systems (slide 3). In Canada (slide 2) there is no jurisdiction, there is no supreme court in each of the provinces, only Supreme court of Canada, this is called a unitary system. In US it is called a binary system. In the US some cases originate from one single state, they will never get to the Supreme court of US, they will stop in the state. In Canada, the two systems (provincial and federal) always connect to the Supreme court of Canada.

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The government power is divided into two.

Canada –

Unitary structure

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Constitution Act, 1867, s. 92(14): Ps can make laws re: “administration of justice in the Province” (ie constitution, maintenance, organization of provincial courts – civ & crim).

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Constitution Act, 1867 (ss. 96-101): judges of superior, district and county courts are appointed and paid by Federal Gvm’t (from amongst members of provincial Bar) •

Compulsory Co-operative federalism - Minister of Justice (Puisne/Ass. Js) – Prime Minister (Chief Js). Provinces can makes in regards to the justices of the Province. The province is free to decide how many courts they need to give judgement. Supreme court decides salary and appoints judges.

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Salaries established by Federal Parliament

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Constitution Act, 1867, s. 101(1) and (2): FG can establish federal courts.

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Three tiers of judicial system in each Province: •

Court of Appeal (Superior Ct)

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Provincial Superior Ct

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Provincial Trial Ct

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However: only 1 apex court for both Federal and Provincial systems

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Tenure: s. 99 BNAA, 1867: “during good behaviour” – but: since 1960, retirement at 75

United States: –

Dual structure of courts (State & Federal) – “binary legal system”...