Notes for Canada Cons-Law-Final-NCA-Exams PDF

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CONSTITUTIONAL LAW Sources and Nature of the Constitution a. Constitutional Act 1867 i. British North American Act 1867(changed in 82’ to Constitutional Act 1867) ii. No amending clause in this act iii mention or system of responsible government ( the prime minster, the cabinet) b. Constitutional Ac...

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CONSTITUTIONAL LAW 1) Sources and Nature of the Constitution a. Constitutional Act 1867 i. British North American Act 1867(changed in 82’ to Constitutional Act 1867) ii. No amending clause in this act iii. No mention or system of responsible government ( the prime minster, the cabinet) b.

Constitutional Act 1982 (enacted through 1982 Canada Act) i. domestic amending formula was adopted ii. authority over Canada of the UK Parliament was terminated 1. Canada Act 1982-a short statue of the UK Parliament which terminated the authority over Canada. iii. Part 7 General 1. The Supremacy Clause is 52(1)-This makes it the supreme law of the country. 2. The Entrenchment clause- 52(3)- This entrenched the Constitutions Act 1982 and makes it only amendable by the proscribed procedure.

c.

Constitution of Canada’ “includes”– defined for first time in 1982 Const Act (s52): 1. The Canada Act 1982, including this Act (includes the Constitution Act 1982 Schedule B) 2. the Acts and orders referred to in the schedule - list of 30 Acts and orders (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. (a) Statute of Westminister – conferred on Canada power to repeal or amend imperial statutes applying to Canada, but BNA Act excluded at Canada’s insistence (so Const wd be more difficult to amend) 3. any amendments to any Act or order referred to in paragraph (a) or (b) 4. “Includes” in s 52(2) indicates that the word is not exhaustive. (a) Other unwritten principles underlie text of Const Act (i) Secession Reference [1998]- 4 unwritten principles of Const- democracy, federalism, constitutionalism, protection of minorities. B/c of democracy, federalism - fed govt and other provinces would be under duty to enter negotiations 1. Reference by the federal government to the Supreme Court of Canada, in which the Court was asked whether Quebec could secede unilaterally from Canada. Unilateral secession not possible -- Secession would require const’l amendmt in accordance with its procedures (but did not specify which one would apply). a. SCC also stated: a clear majority on a clear question of law put to referendum in Quebec, would “confer legitimacy on demands for secession” and give rise to an obligation on all parties to Confederation to negotiate the required constitl changes. SCC also pointed out that the political ramifications for failure to negotiate in good faith would include the defaulting govt’s legitimacy in the eyes of the international community would be undermined. ... b. Principle of Effectivity: If seceding govt achieved effective control of a territory and recognition by international commty the secession although unconstitutional would have to be recognized eventually as a reality by Canada’s own Constl Law. 2.

Clarity Act ( created after Succession Reference) Hogg 5.7(a) a. Defines “clear” - s1–if a province proposes a referendum on succession , the HoC is to consider the question and determine whether the question is “clear”. Whether clear depends on “the question would result in a clear result in clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state. “ i. Act states question is unclear if “mere focus to negotiate” or envisages economic /political arrangement with Canada that obscures a direct expression of the will of the population of that province b.

s 2 – if q is clear, the Hof C has to determine if the majority is “clear”. i. The act does not define “clear”- requires HoC to take into acct size of majority, percentage of eligible voters who voted, and any other matters or circs ii. If HoC finds that no clear majority in favour of secession, then Govt is prohibited by Act from enterin into negotiations

s3 – the Act recognizes that under the Constitution of Canada, there is no right to unilateral succession, and an amendment would be needed to succeeds from Canada. (ii) Federalism 1. Reference re Secession of Quebec- In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided. a. Described federalism as a means of recognizing regional cultural diversity at the founding of Canada, particularly w/ respect to the distinct nature of Quebec as predominantly a French-speaking society. Notes experience of Canada East and Canada West had been bad under the Union Act (1840)- new Const structure enabled French-speaking Canadians to form numerical majority in Quebec . 2. Hodge v. Queen (1883)- national and provincial legislatures were coordinate authorities with equal sovereign status derived from Const. c.

(iii) Democracy (Secession Reference) 1. The democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. . . Democracy is commonly understood as being a political system of majority rule. Democracy encompasses a number of values, including: respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. (iv) “Parliamentary Privileges” - 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 1. New Brunswick Broadcasting Co. v Nova Scotia (1993) - unwritten doctrine parliamentary privilege should be included in the s52(2) definition even though no mention of it. - “strangers” were excluded from the Nova Scotia legislative assembly. 2. 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. 3. Does not include all internal affairs of employees of House – chauffer of Speaker alleged that he’d been constructively discharged on grounds forbidden by Human Rights Act, SCC denied Parliament’s position that they were internal affairs of Parliament – SCC held didn’t fulfill test of necessity 4. Powers authorized by parliamentary privilege are not subject to the Charter Rights. 5. The court’s decision means the definition can be expanded. (v) Parliamentary sovereignity 1. Babcock v. Canada [2002] – SC rejected challenge to S. 39 of Evidence Act, which allows fed govt to withhold cabinet docs from ct proceedings to which docs are relevant—even though rule of law, sepration of powers and independence of judiciary at stake – balanced against principle of parliamentary sovereignity. a. Secession Reference: “With the adoption of the Charter, the Canadian system of

govt was transformed to a significant extent from a system of Parliamnetary supremacy to one of constitutional supremacy.” (vi) Judicial independence1. Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (1997) – SCC asserted that there was an unwritten principle of judicial independence in Const that could have the effect of invalidating statutes that reduced judicial comp. but decides case under 11(d) a. even though independence explicitly guaranteed in s.99 of 1867 BNA, Ct held unwritten principle – required elaborate procedures be followed to remove a judge and even to set salaries b. Reasoning: Core characteristics of judicial independence include: security of tenure, financial security and administrative independence. Independence necessary to maintain public confidence that justice will be done in individual cases, and that rule of law will be maintained. relationship between the judiciary and other branches of government must be depoliticized – so courts both be free and appear to be free from political interference through economic manipulation by the other branches of government.

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FACTS: A statute decreased provincial court justices’ salaries b/c of a provincial deficit. Concern that this eroded judicial independence guaranteed under s 11(1)(d) of Charter. Held- Judicial salaries can be reduced, so long as (1) economic manipulation occurs through an independent body, combined with a judicial compensation commission (between the judiciary and other branches of government) that would depoliticize the process. (2) No negotiations on judicial remuneration b/w the judiciary and the executive/legislature. (3) Judicial salaries may not fall below a minimum level. Here, didn’t happen – so breach of section 11(d) of the Charter of Rights. As well as unwritten rule.

Conventions i. Rules of the constitution that are not enforced by the law courts. – although the existence of a convention has occasionally been recognized by the courts 1. Why do people obey them if not law? The breach of a convention would result in serious political repercussions and eventual changes in law. 2. Const. Convention – UK parliament would not amend BNA Act except at request of Canada 3. 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 (1982 Const Act and Canada Act). That would affect the provinces. The court was also asked whether there was a legal requirement for provincial consent. SC found the convention required a “substantial degree” of provincial consent but it was not necessary to decide exactly what the requisite degree is. (later held Quebec approval not necessary- Quebec Veto Reference 1982) 4. 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 restricted the policy or substance of what could be enacted by the provincial Legislature in exercise in its power to make laws in relation to education. Usage 1. 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.”

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Main Conventions 1. the governor general only acts on the advice of the Privy Council 2. this Privy Council is not the full Council described in s13 of the Constitution Act 1867 but rather a smaller subset, the Cabinet 3. the cabinet chosen by the Prime Minister, and the number of ministers is up to him/her 4. the primes minster, although no where mentioned in the Constitution Act 1867, is the head of government 5. the prime minster and his/her cabinet must have the support of a majority of members in the house of commons 6. the prime minster and his/her cabinet must have seats in the House of Commons or Senate 7. House of Commons support for Prime Minsters and cabinets is rallied by means of Political parties and 8. A failure to command and support of a majority of members in the House of Commons results in the government stepping down and usually the calling of a general election.

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Other Conventions 1. The operation of Parliament and the legislatures generally, including political parties and at the national level, the relationship between the elected house of Commons and the appointed Senate 2. The operation of the federal and provincial cabinets, minsters and civil services and the relationship among them 3. Federalism generally, aside from the formal divisions or powers, including reservation and disallowance of federal and Provincial acts and the role the federally appointed lieutenant governor in provincial matters 4. The role of judges and courts in the governmental process and the independence of judges and courts interference by the executive and legislative branches and

2) Amending Procedures - Part V of the Constitution Act, 1982 headed “Procedure for Amending Constitution of Canada.” a.

5 different amending procedures. i. General amending procedure (s38) for amendments not otherwise provided for (as well as for amendments listed in s42- proportionate representation, selection of Senate, SC of Canada, establishment of new provinces).

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1. 2.

“7/50 Rule” – requires resolutions to be passed by: Senate + HofC + 7 of the 10 Provinces which have in total at least 50% of the population. Opting out: 38(3) applies to “any amendt that derogates from the legislative powers, proprietary rights or any other rights or privileges of the legislature or government of a province” (a) Prov can pass resolution of dissent prior to proclamation = amendt will not take effect in that province (i) 38(4): resolution of dissent can be revoked at any time, but 46(2): resolution of assent cannot be revoked after proclamation (b) S40 compensates provs for opting out, for any transfer of Provl legislative powers to Fedl govt (in relation to education or cultural matters only).- otherwise wd be powerful incentive not to opt out, b/c opting out wd involve bearing substantial expense from which other provincial govt’s would be freed by amendment (e.g. transferring legis authority over universities from provinces to parliament)

ii. Unanimity procedure (s41), required for five defined kinds of amendments, requiring the assents of the federal Parliament and all of the provinces - s39 time limits do not apply. 1. Office of Queen, representation in parliament-“Senate floor” entrenches right of least populous provinces to min representation in HoC, use of English or French- subject to S.43, composition of SC, amendment to amending procedures themselves 2. But re: SC, the composition of SC is dictated by Supreme Court Act, which is not part of Const, so this is ineffective iii. Some but not all provinces procedure(s43), for amendment of provisions and only those provinces affected; 1. used for language usage within a province, altering provl bopundaries. Note: protection of minorities is afforded by the fact that it also requires resolutions of the Senate and HofC (ie Fedl level approval) as well as the affected provinces. Hogan v Newfdlnd (2000). iv. The federal Parliament alone (s44) has power to amend provisions relating to the federal executive and House of Parliament ;and 1. covers amendments to the “Constitution of Canada” in relation to the federal executive, or Senate and the House of Commons- provided that the amendments do not fall within the category of amendments caught by the General and Unanimity Formula. v. Each Provincial Legislature alone (s45) has power to amend “the constitution of the province”. 1. Laws amending constitution of prov (ie those that bear “on the operation of an organ of govt of the province” – SCC). Note does not include: Constl guarantee of language rights (per SCC in AG Quebec v Blaikie, now explicit in s45). b.

Limitations i. Must wait 1 year to proclaim (unless all have consented/dissented) (allows time to consider) 39(1) ii. Expires in 3 years if required consent not achieved 39(2) iii. Regional Veto Statute (not constitutional, 1996): no amendt can be proposed by “Minister of the Crown” unless it has first been considered by a majority of the provinces that includes: Ont, Que, BC, 2+ Atlantic Provs rep min 50% pop, 2+ Prairie Provs rep min 50% pop. Applies to amendments that: do not allow for opting out, and must otherwise follow the general 7/50 procedure. Does not apply to : s41(unanimity) or s43 (some but not all) amendments. 1. Of course, non-minister can propose resolution, but not likely to pass w/o minister support

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Attempted Amendments i. French Canadian Nationalism: Meech Lake Accord 1987 – to appease Que, but fell short of ratification by 2 provs. ii. Division of Powers: Reducing Fedl and incr Provl power easiest way to address French Candian and Western Canadian grievances. 1982 amendmts incr provl power over natural resources. On the other hand: Enlargement of certain Fedl powers may facilitate effective national economic policies, Fedl power is lacking or only avail in emergencies with respect to: foreign ownership, securities regulation, wage and price controls.

3) Federalism and Judicial Review a. Sources: Constitution Act, 1867, ss.91-95 i. Constitution Act, 1982, s.52 ii. Hogg, chapter 5, “Federalism” b.

Federalism- Unitary vs. Federal state

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i. Unitary state government power is vested in one national authority - powers given to municipal governments are granted by a national authority and can be taken away, altered or controlled at any time by the national legislature. (Montreal-to Quebec). ii. Federal- Coordinate power - general and regional govts are each within a sphere coordinate and independent. 1. Hodge v. Queen (1883)- national and provincial legislatures were coordinate authorities with equal sovereign status derived from Const. 2. 3.

Both sections use terminology giving legislative authority in relation to “matters” coming with ‘classes of subjects”. s91- federal Parliament (a) To provide collective benefits of economic union and greater financial strength and increase defence. As a reset the BNA act 1867 gave federal Parliament authority over customs and excise, interprovincial and international trade and commerce, banking and currency, all forms of taxation and national defence. Authority over criminal law, penitentiaries, marriage and divorce

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s92- - provincial Legislatures. (a) BNA Act 1867 gave provincial legislatures authority over property, common civil rights, common courts, police, municipal bodies, hospitals and education

iii. Federalist History 1. BNA 1867 - Indications that the framers planned a strong central government. The Act gives the provinces only enumerated powers to make laws giving the residue of power to the federal Parliament. (a) s90 allows the federal government to disallow provincial statues (power has not been exercised since 1943) (b) by s58 the federal government was given the power to appoint the Lt Governor of each province (c) by s96 the federal government was given the power to appoint judges of the superior, district and county courts of each province. by s91(29) and 92(10)(c) the federal parliament was given the power unilaterally to bring local works within exclusive federal legislative jurisdiction simply by declaring them to be “for the general advantage of Canada” - used for railways and sparingly in recent years. (d) s93 of the Constitution Act 1867- gives the federal power to enact remedial laws to correct provincial incursions on minority educational right- has never been exercised and the practice has become obsolete. 2.

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Judicial Interpretation (a) Lord Watson 1880-1899 and Lord Haldane 1911-1928. - both believed strongly in provincial rights and established precedents that elevate the provinces to coordinate status with the Dominion. (b) They gave a narrow interpretation to the principle federal powers ( the residual power and the trade and commerce power and wide interpretation to the provincial powers

Judicial Review i. Supremacy Clause- s52(1) is the current basis of judicial review in Canada. 1. s52 Consti Act 1982-any law contrary to provision of the “Constitution of Canada” is “of no force effect” 2.

Judicial independence- Elemental constitutional doctrine, closely tied to the separation of powers- ensures that judges, as ...