Constitutional Framework October 24, 2018 Certificate Program in Public Sector Leadership and Governance
Outline Why a constitution? Development of Constitution of Canada Canadian Institutions Federalism Charter rights Indigenous rights Amendments
Why a constitution? Power Values (written and unwritten) Institutions
Development of Constitution of Canada Colonial history Constitution Act, 1867 (originally British North America Act of 1867) Executive, Legislative and Judicial Institutions Division of Powers Growth of the country Independence (Statute of Westminster of 1931) Patriation in 1982 Canadian Charter of Rights and Freedoms Rights of the Aboriginal Peoples of Canada Process for amendments
Canadian Institutions Executive power (Crown, Governor General, Lieutenant Governors General) Responsible government; Cabinet Legislative power Parliament (House of Commons, Senate, Crown) Provincial legislative assemblies (all comprised on one chamber of assembly and the Crown) Judicature Supreme Court of Canada, Federal Courts, Provincial Courts Judicial review
Federalism (1) Context in 1867 Living tree Important federal powers Trade and commerce; tax; defence; navigation and shipping; fisheries; banking; patents and copyrights; marriage and divorce; criminal law; interprovincial works and undertakings; old age pensions Important provincial powers Direct taxation; public lands; hospitals; municipal institutions; local works and undertakings; property and civil rights; administration of justice; matters of a merely local or private nature; education Concurrent powers: agriculture and immigration Spending power
Federalism (2) What happens when uses of legislative powers overlap? What happens when uses of legislative powers conflict? What happens when a province tries to legislate with respect to a federal work or undertaking, or the federal government? What about the territories?
Charter rights (1) Purposive interpretation; dialogue between courts and Parliament Application Fundamental freedoms (e.g. freedom of expression) Democratic rights (e.g. right to vote) Mobility rights (e.g. right of citizens to enter Canada) Legal rights (e.g., right to be secure against unreasonable search) Equality rights Official languages and minority language education
Charter rights (2) Section 1: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” Remedies Notwithstanding clause (applies to fundamental freedoms, legal rights and equality rights)
Indigenous rights Royal Proclamation, 1763 Treaties Title Section 35 of the Constitution Act, 1982 Inherent rights Recognition of rights Honour of the Crown
Amendments Amending provisions are complex Some things can be done easily and have been (e.g. changes to separate school regimes in some provinces (bilateral)) Some things engage the national interest and are much harder to do (e.g. changes to the powers of the Senate (7/50) or the composition of the Supreme Court (unanimity)) Very political dynamic