Constitutional LAW Outline PDF

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Summary

RULE OF LAW Entrenchment (otherwise we would have totalitarianism) Remedies needed for when govt acts outside the law Independence of judiciary and lawyers Civil liberties to be guaranteed by the const and must be respected by gov’t Constitutional interpretation becomes important (ie originalism – o...

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RULE OF LAW - Entrenchment (otherwise we would have totalitarianism) - Remedies needed for when govt acts outside the law - Independence of judiciary and lawyers - Civil liberties to be guaranteed by the const and must be respected by gov’t - Constitutional interpretation becomes important (ie originalism – original meaning of the word, rigidity; living tree doctrine – starts in one place and then can be interpreted differently ie LGBT) - Why? Legitimacy to the system, certainty, avoids authoritarianism 

What is “Constitutional Law”?  Law prescribing the exercise of power by the organs of the state  legislative branch (makes laws); executive (implements); judicial (adjudicates)

There isn’t one single document (1 and 2 are the two central ones)

SOURCES 1.

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CONSTITUTION ACT 1867 (formerly BNA Act – changed by Canada Act 1982) created the new Dominion of Canada, established rules of federalism (power allocation) GAPS: i) no general amending clause (came from Britain Imperial Parliament); ii) confers powers on a Governor General, but doesn’t create Office of Governor General, which is constituted by RP; iii) system of responsible (cabinet) government not in there (no mention of PM or House of Commons); iv) no creation of SCC s101 (gives authority for its creation but doesn’t create it. Done later in 1875, and Privy Council for Civil done until 1949); v) no Bill of Rights (the 1960 only applied to federal laws) 2. CONSTITUTION ACT 1982 Canada Act 1982 terminates UK Parliament’s authority over Canada (full patriation of constitution) Preamble of Canada Act: “Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that purpose…” main things now: Domestic amending formula; Authority over Canada of the UK imperial parliament no longer; Charter of Rights adopted; changed name to BNA Act; definition of Constitution Note: all provinces except for QC agreed to Canada Act 1982 Schedule B of the Canada Act 1982 has in it the Constitution Act 1982, which contains the Charter, amending formula, etc. Defined in s52(2) –

(2) The Constitution of Canada includes

(a) the Canada Act 1982, including this Act; (b) the Acts and orders referred to in the schedule; and  a bunch listed, like BNA Act 1871, Parliament of Canada Act 1875, BNA Act 1886, Statute of Westminster 1931, (c) any amendment to any Act or order referred to in paragraph (a) or (b).

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Note that some important Acts missing (Hogg page 1.10-1.12): Act of Settlement 1701, Royal Proclamation of 1763, QC Act 1774, CA 1791, Union Act 1840, Letters of Patent 1947 (office of the Gov General), Supreme Court Act (est SCC), Bill of Rights S52(1) – Primacy clause (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect

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S52(3) – entrenchment clause – amendments only in accordance with authority contained in the constitution (special amending procedures in Part V of CA 1982)

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WHAT ABOUT THE SUPREME COURT ACT’S LACK OF INCLUSION IN 52(2)? This act is a statute of the Parliament of Canada under s101 of the CA 1867. That section gave the power to establish a general court of appeal for Canada. Even though the CA 1982 didn’t mention this act, it made two references to the Court in Part V (amending procedures). S41(d) lists “the composition of the Supreme Court of Canada” as one of the items that require the unanimity procedure for its amendment. S42(1)(d) lists “subject to para 41(d), the Supreme Court of Canada as one if the items that require the seven-fifty procedure for its amendment. Hogg says this only applies to amendments of the Court and that Supreme Court Act isn’t part of the constitution itself. The Supreme Court Reference (2014) implied that the provisions od the Supreme Court Act dealing with the composition of the Court should be treated as part of the Constitution, requiring unanimity procedure for amendment, as per s41(d). Also said that the provisions of the Supreme Court Act dealing with “the other essential features” of the Court should also be treated as part of the Constitution, requiring seven-fifty procedure for amendment, as per s42(1) (d).

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3. CASE LAW (UNWRITTEN PARTS OF THE CONSTITUTION) SCC finds unwritten principles that underlie the constitutional texts. The case law that interprets the Constitution Acts and other constitutional statutes is also constitutional law. the list in s52(2) says that the Constitution of Canada “includes”, meaning the list is not exhaustive. Parliamentary Privilege – Federal Houses of Parliament and provincial legislative assemblies possess a set of powers and privileges that are necessary to their capacity or function as legislative bodies Includes things like freedom of speech in debate, including things said in proceedings, right to not testify in court proceedings while Parliament or Legislature is in session CASE: New Brunswick Broadcasting v Nova Scotia 1993 – (NB wanted to bring TV cameras in NS court) The preamble of 1867 says: “similar in principal to that of the UK”, so unwritten doctrine like this is part of the Constitution That said, should be truly compelling reason to include something, especially something that is unwritten like parliamentary privilege. CASE: Canada v Vaid 2005] (chauffer case. Privilege doesn’t apply here) The Court found that the first step of determining whether parliamentary privilege exists at the federal level in a particular area is to ascertain whether the existence and scope of the claimed privilege have been authoritatively established in relation the Parliament of Canada or to the House of Commons at Westminster.

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If the existence and scope of the claimed privilege has not been authoritatively established, then it must be tested against the doctrine of necessity. That is, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly's work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.

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Do you agree with the Supreme Court that parliamentary privilege should be part of the Constitution? No. Recall case comment. To just make an unwritten principle out of the preamble is overstepping boundaries and it is a reach. Constitution is entrenched, needs amendment for change, Canada fought for it. “similar in principle to the UK” shouldn’t apply like that. It’s not even possible to be similar in principle – unwritten, and historical context of why they had privilege as a constitutional principle.

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Judicial Independence –

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CASE: Re Renumeration of Judges 1997 unwritten principle of judicial independence. Invalidity of statutes that reduce salary of judges.

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Democracy, Federalism, Constitutionalism and the Protection of Minorities –

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CASE: Secession Reference 1998 The SCC invoked this unwritten principle to say that if a province were to decide in a referendum that it wanted to secede from Canada, the federal government and the other provinces would come under a legal duty to enter into negotiations to accomplish the secession. Good faith obligation. 4. ROYAL PREROGATIVE Unique Powers and privileges accorded by the common law to the Crown Only applies to the executive branch (thereby not applying to legislature or judiciary) Can be abolished or limited by statute and are subject to review by the courts Ex: declaring war, making treaties, appointment of a PM (by the Governor General) and other ministers; passports; creation of Indian Reserves; conferring honours such as Queen’s Counsel Used to be no judicial review of it but now the Courts are heavy in it… determining if it exists, what its powers are, if displaced by statute, etc. 5. CONVENTIONS Rules of the Constitution that are not enforced by the courts Often develop from “usage”, in other words just things that have kinda been done They prescribe the way in which legal powers shall be exercised Example: CA 1867 gives power to Queen to withhold royal assent from a bill. Convention says that it shall never be withheld. She can withhold it, thus breaching the Convention. But in practice she won’t. And if she does, the courts cannot enforce it, and there is no remedy available. CASE: Patriation Reference 1981 there is a convention that consent of provinces is needed before federal government requests amendment by UK Parliament. And that is a “substantial degree” the court asked: 1) what were the precedents? 2) what were the beliefs of the actors in those precedents? 3) what was the reason for the practice?

Having decided there is a convention, the court then had to say what the convention was Even without a usage, officials can agree to adopt a certain rule of constitutional conduct that can immediately become obligatory

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Why do governments obey conventions if not enforceable? What happens if conventions start to be ignored? These are obeyed for good practice and keeping order and good relations, etc. political repercussions would exist (Hogg page 1.29) – if Governor General withholds consent, he will be dismissed and would be outcry for a statute on that. Close connection between law and convention. Conventions presuppose legal powers, because what they do is regulate the way legal powers are exercised.

AMENDING PROCEDURES -

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BNA Act no amending provisions Why? Canada ok with UK doing it - Living in basement hypo

Statute of Westminster gave Canada power to repeal/amend imperial statutes applying to Canada, but this didn’t include the BNA Act, because it was a const document Statute of Westminster also led to the convention that the UK could not enact amendments to the BNA Act except at the request and with the consent of Canada. Amending procedures are in Part V of the Constitution Act 1982, and they apply to the “Constitution of Canada”, as defined in s52(2)

Canada Act, 1982 formally terminated the UK Parliament’s authority over Canada and Part V of the Constitution Act, 1982 constitute a complete code of legal rules which allow all parts of the “Constitution of Canada” to be amended (recall the Patriation Reference (1981) – the consent of the provinces to the proposed amendments was not required as a matter of law but a “substantial degree” of provincial consent was required as a matter of “convention” – in the end, all provinces except Quebec agreed to the Canada Act, 1982, which included the Constitution Act, 1982 as Sched. B) 1. GENERAL AMENDING PROCEDURE s38 for amendments not otherwise provided for (as well as amendments listed in s. 42) requiring the assents of the federal Parliament and two thirds of the provinces representing 50 per cent of the population Note: the amending procedures only apply to the “Constitution of Canada” as defined in s. 52(2) of the Constitution Act, 1982

General procedure for amending Constitution of Canada

Majority of members

38.

(1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by (a) resolutions of the Senate and House of Commons; and (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces. (2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of

Commons and the legislative assemblies required under subsection (1). Expression of dissent

(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.

Revocation of dissent

(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.

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Amendments not otherwise provided for, as well as those in s42. This is a catch all provision The “7/50 Formula”  Assent of federal parliament and 2/3 of the provinces (7/10) representing 50 percent of population (50 percent part means that either Ontario and Quebec will have to be included, based on population) Formal act of amendment is done by proclamation by the Governor General No province has a constitutionally-entrenched veto over amendments; however. . . S38(3) Opting out – is permitted in respect of any amendment “that derogates from the legislative powers, the propriety rights or any other rights or privileges of the legislature or government of a province”. In other words, the legislature can pass a resolution of dissent and then the amendment “shall not have effect” in that province. Resolution of dissent needs to be passed before the issue of the proclamation to which the amendment relates (it can be revoked at any time) After QC referendum was so close, the Regional Veto Statute was passed, but it has no constitutional authority S40 provides compensation for opting out re education and cultural matters

General Amending Procedure also applies to s42 (in other words, anything that doesn’t come in ss 41, 43, 44, 45) Amendment by general procedure

42.

(1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1): (a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada; (b) the powers of the Senate and the method of selecting Senators; (c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators; (d) subject to paragraph 41(d), the Supreme Court of Canada; (e) the extension of existing provinces into the territories; and (f) notwithstanding any other law or practice, the establishment of new provinces.

(ss38(2) and 38(4) do not apply in respect of amendments in relation to matters referred in (1), ie there is no opt out (?) -

2. Federal parliament and ALL provinces 41.

UNANIMITY PROCEDURE s41

An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province: (a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;

(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force; (c) subject to section 43, the use of the English or the French language; (d) the composition of the Supreme Court of Canada; and (e) an amendment to this Part.

CASE: Supreme Court Reference 2014 (former member of Quebec bar appointment to the SCC case. Not allowed) - 41(d) entrenches composition of the SCC - Parliament passed amendment to Supreme Court Act to add a new section to make former members of the bar of QC eligible for appointment to the SCC - court said this is unconstitutional, because provisions of the Supreme Court Act that deal with composition of the Court could only be amended through unanimity procedure - “other essential features” of the Court can be dealt with under general though CASE: Senate Reform Reference 2014 (abolishment of senate is s41) - issue: is unanimity required to abolish the Senate or is it 7/50? - Senate removal requires unanimity because of 41(e), because abolishing the Senate is like amending the amending procedures

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43.

3. SOME-BUT-NOT-ALL PROVINCES PROCEDURE s43 Provisions don’t apply to all provinces, so assent of federal Parliament and only those provinces affected is needed An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including (a) any alteration to boundaries between provinces, and (b) any amendment to any provision that relates to the use of the English or the French language within a province, may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.

44.

4. FEDERAL PARLIAMENT ALONE s44 Relating to federal executive and Houses of Parliament Subject to sections 41 and 42 (these sections trump this section) Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

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CASE: Senate Reform Reference 2014 (term limits for senators) This case also dealt with the issue of whether Parliament had the power to impose term limits on the tenure of Senators S44 should govern, unless trumped by ss 41 and 42 S41 does not refer to the Senate and s42 refers to the powers of the Senate and the methods of selecting the Senators, as well as provincial representation of the Senate and residence qualifications of Senators. It does not reference term limits. SCC said that any reduction in the independence of the Senate would engage the interests of the provinces, and said that in addition to anything that is expressly excluded from s44, any other changes that engage the interests of the provinces are impliedly excluded from s44 (so 41/42 apply). The scope of s44 is therefore very narrow

5. 45.

EACH PROVINCIAL LEGISLATURE ALONE s45

Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.

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The constitution of the province is not defined, but the SCC has said that it is where the law bears on the operation of an organ of government of the province

Note on Secession -

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Issue: does the federal constitution give the power of secession to its provinces or states? Secession Reference 1998 SCC was asked whether QC could secede unilaterally from Canada. Unilateral secession was not permitted under the Constitution, or under international law. secession would require amendment to the Constitution, so negotiation would be required – not a unilateral action. The SCC didn’t say which procedure would need to be used, but said that the feds and provinces would both ha...