The Canadian Constitution and The Charter of Rights and Freedoms

Constitutional Law The Constitution: Outlines: Responsibilities, Rules, Rights, Guidelines & Authority

It is a legal framework that establishes how power and authority within a country are exercised.

Importance It is important for a democratic nation to have a constitution because it outlines and regulates the powers of the state. It also establishes limits to that power, which prevents the development of an undemocratic abusive government. Midnight Express http://www.youtube.com/watch?v=Cv53d3bZvJg&p=944EE953323C4E13&playnext=1&index=28

The three components of the Canadian Constitution are: Constitutional Documents Conventions Common Law

Constitutional Documents These are documents which establish the structure of government, division of powers, and rights of individuals.

E.g. BNA Act 1867 establishes a British like parliamentary system with a Federal System of Jurisdictional Powers

Constitutional Documents Constitution Act 1867 Rupert’s Land Act 1868 (Hudson’s Bay) Manitoba Act 1870 Constitution Act 1871 PEI Terms of Union Yukon Territory Act 1898 Alberta Act 1905

Constitutional Documents (continued) Saskatchewan Act 1905 Statute of Westminster 1931 (UK) Newfoundland Act 1949 Constitution Act 1960 (Supreme Court) Constitution Act 1982 Constitution Act 1998 (Newfoundland Act) Constitution Act 1999 (Nunavut) Constitution Act 2001 (Newfoundland & Labrador)

Re-education in China 3min No Trial Constitution Act 1982 entrenches the Charter of Rights and Freedoms Re-education in China 3min No Trial http://www.youtube.com/watch?v=jJVs6SHZLgc&feature=PlayList&p=AF5C65C056BC63A3&index=31

Conventions These are unwritten rules followed primarily for reasons of tradition rather than law, which provide the details of how our government operates e.g.: Supreme Court justices are selected from various parts of the country.

Convention example: If the PM loses a “confidence” vote in the House of Commons they must call an election

Unwritten Rules These are unwritten rules and cannot be enforced by the courts Harper Porogues Canada Parliament to avert Defeat

Common law Establishes precedents to be upheld by the legal system. Common law is flexible. The principles can be altered over time as the views and opinions of society change.

Charter History Canada's original Constitution, the British North America Act 1867 founded Canada as a nation. It could only be changed by Britain It did not have a "Bill of Rights" Disappeared A.I 2 min http://www.youtube.com/watch?v=tpdWdKn0FQU&feature=PlayList&p=AF5C65C056BC63A3&index=22

The Canadian Bill of Rights Passed into law in 1960 It recognizes the rights of individuals to life, liberty, personal security and enjoyment It protects rights to equality before the law and protects the freedoms of religion, speech, assembly and association, It protects legal rights such as the rights to counsel and "fair hearing."

Problems with the Bill of Rights Had no more power than any other law. Was not helpful unless a law itself was discriminatory Only applied to federal, not provincial laws. Guantanamo Bay http://www.youtube.com/watch?v=Dr8LdsBd_Tw&feature=related Guantanamo Protests A.I. 4 min http://www.youtube.com/watch?v=VlPxdOcvWtA&feature=PlayList&p=AF5C65C056BC63A3&index=14

Prime Minister Trudeau In 1982 Trudeau patriated the constitution and included The Canadian Charter of Rights and Freedoms

Influences on the Charter: United Nations Universal Declaration of Human Rights 1948 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 International Covenant on Civil and Political Rights 1966

The Constitution Committee Listened to over 300 presentations from: Women Aboriginal people People with disabilities Ethnic and cultural minorities and others. Plus 1200 written submissions

Charter Supremacy With the Charter's supremacy confirmed by section 52 of the Constitution Act, 1982, the courts continued their practice of striking down unconstitutional statutes.

The Charter Interpretation and enforcement The task of interpreting and enforcing the Charter falls to the courts, with the Supreme Court of Canada being the ultimate authority on the matter.

Jurisdiction Issues Intra Vires Ultra Vires

Pith and Substance Doctrine This is the overriding purpose or intent of the law when both levels of government have legitimate claims of authority.

What is the most important or dominant characteristic of the law?

Jurisdiction? Protection of Children Involved in Prostitution Act (Alberta Parliament)

The legality of this law was challenged as it was thought to breech the boundaries of Criminal Law which is a Federal jurisdiction

Supreme Court Ruling The pith and substance of the Protection of Children Act… is the protection of children from sexual abuse and other risks related to health which is a provincial jurisdiction.

The SCC ruled it did not invade the domain of the criminal law.

Residual Powers Issues unforeseen in 1867 will be handled by the Federal Government

Death penalty in China A.I. 2 min Constitutional Tests In several important cases, judges developed various tests and precedents for interpreting specific provisions of the Charter. These include the Oakes test for section 1, set out in the case R. v. Oakes (1986), Death penalty in China A.I. 2 min http://www.youtube.com/watch?v=WaJxqZzoyrA&feature=PlayList&p=AF5C65C056BC63A3&index=23

Reasonable Limits Clause Section One of the Charter states: 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.

Break the law Go to jail Lose your right to liberty Lose your democratic rights?

Oakes Test Reasons for limiting the Charter rights must be important. The measure carried out to limit the right must be reasonable and logically connected. The right must be infringed upon as little as possible. The more severe the rights limitation, the more important the objective must be.

R.I.D.E. (Reduce Impaired Driving Everywhere) Reason? Rational Connection? Infringement? Limitation?

Criticism of the Charter A.I. pleas for global moratorium on capital punishment 3 min http://www.youtube.com/watch?v=jHsfGxb76A4&feature=PlayList&p=AF5C65C056BC63A3&index=11 Judges do not have to be as sensitive to the will of the electorate

The Charter protects from “Tyranny of the Majority” ~ Is majority rule not the foundation of a democratic society?

Amending the Constitution Approval of the House of Commons Approval of the Senate Approval of two-thirds of provinces representing 50 percent of population The territories are not part of the formula

If an amendment only affects the Federal Parliament then only the Federal Parliament needs to approve of the change Eg. If the retirement age of Senators was suggested only the Federal Parliament would need to approve.

If an amendment has an impact on only one province then the Feds and that province need to agree to the change. Eg. In 1998 Newfoundland changed the structure of its education system to move away from funding based on religion. This required the consent of the Newfoundland House of Assembly and the Federal Parliament.

Attempts at Constitutional Change In 1982 Quebec did not sign the constitution. The Quebec government at the time was controlled by the separatist Parti Quebecois. Rene Levesque Leader of the Parti Quebecois

Recognition as a distinct society A greater role in immigration to the province A role in appointments to the Supreme Court Limitations on the ability of the feds to spend money in areas of provincial jurisdiction Veto power over all constitutional changes

Quebec & The Constitution Two attempts have been made since to bring Quebec into the Constitution Act. 1. The Meech Lake Accord Elijah Harper stalled the Manitoba legislature past the deadline for approval of the Meech Lake Accord

Quebec wanted: A recognition of Quebec as a "distinct society" A constitutional veto for Quebec Increased provincial powers with respect to immigration Extension and regulation of the right for a reasonable financial compensation to any province that chooses to opt out of any future federal programs Provincial input in appointing senators and Supreme Court judges

1987 Meech Lake Accord – Not ratified- Quebec does not sign the constitution

~National referendum~ 2. 1992 Charlottetown Accord ~National referendum~ Self-government for Aboriginal peoples Senate reform Strengthened equality for male and females A recognition of group rights in addition to individual rights A minimum representation of 25% in House of Commons from Quebec

National referendum – 54% voted no Quebec still remains left off the Constitution

Independence Vote? 1995 "Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?"

What was the question?

A poll released just weeks before the October 30 vote showed more than 28% of undecided voters believed a "Yes" vote would simply mean Quebec would negotiate a better deal within confederation and remain part of Canada.

Quebec Referendum On Succession ~ 1995 No 50.58% Yes 49.42%

Reference re Secession of Quebec 1998 Quebec cannot unilaterally secede Canada must negotiate a secession

Clarity Act 1999 The House of Commons will decide on the clarity of wording in future separation questions.