HISTORY OF THE CONSTITUTION: AN INTRODUCTION TO CONSTITUTIONAL LAW CLN4U

What is a Constitution? Why are constitutions important? Focus Questions

Constitution  A legal framework or guideline that establishes how power and authority within a country is exercised  It also establishes the limits of that power  defines of the main institutions of government: i.e. legislative, executive and judicial responsibilities  can be unwritten: i.e. Great Britain

What are possible consequences of having a weak or vague constitution? Focus Question?

Constitutional Law  Comprises the principles of the constitution  Enforces the powers that are assigned by the constitution through the country’s legal institutions  Defines the roles of the people who operate within those institutions

Sources of the Constitutional Law 1. The written constitution  BNA Act 1867 and all future amendments  Constitution Act of The unwritten constitution  Cabinet system  Party system  Parliamentary democracy  All come from the phrase. “a constitution similar in principle to that of the United Kingdom” 3. Court decisions —precedents are set which affect Constitutional law (e.g. same sex marriage)

Conflict and Compromise: Canada’s Constitutional History Timeline of key Constitutional Documents

Royal Proclamation  Established common law of England in all British territories in North America  The Crown owned all non privately held land  Outlined certain rights for aboriginal peoples- described the relationship between aboriginal peoples and the crown as a nation to nation  Prevented anyone from negotiating land deals with Aboriginal peoples without the authority of the Crown  Granted aboriginal peoples title to use and occupy the land  Proclamation is still referenced to uphold the rights of Aboriginal peoples.

Quebec Act  It guaranteed free practice of the Catholic faith.  It restored the use of the French civil law for private matters while maintaining the use of the English common law for public administration, including criminal prosecution.  Reflected in the current composition of the Supreme Court where three of the nine justices are from Quebec because of their expertise and experience in the Civil Code of Quebec

Constitutional Act  Divided British North America into Upper and Lower Canada  Upper Canada received English law and institutions  Lower Canada retained French civil law and institutions, including seigneurial (semi-feudal) land tenancy, and the privileges accorded to the Roman Catholic Church.seigneurial  Established a government structure comprised of a Lieutenant-Governor, executive and Legislative assembly  Executive was responsible to the Lieutenant-Governor and not the elected Legislative assembly

Act Of Union  Unified Upper and Lower Canada  Established responsible government with the executive now responsible to the elected Legislative Assembly  Lieutenant-Governor was now required to implement the will of the Legislative Assembly  Established a British parliamentary style of democracy  the Act contained measures banning French from official use in the Legislative Assembly.  the distinct legal systems of the two colonies was retained

Constitution Act  Canada formed, 4 provinces (Ontario, Quebec, New Brunswick, Nova Scotia)  BNA–Dominion of Canada  enacted by the British Parliament  Established that Canada’s system of government would be modeled on the British parliamentary system  set out division of powers between Federal and Provincial  guaranteed language, religion and cultural rights for French Canadians  Constitutional Monarchy  preservation of French civil law in Quebec

Statute of Westminster  amendment by British Parliament  Ended Canada’s colonial status  Canadian government could now change laws previously passed as acts of British parliament that applied to Canada  granted more autonomy for Canada  full independence for Canada, responsibility for foreign affairs  Canada could still not amend the BNA Act, because federal and provincial governments could not agree on amending formula

Supreme Court of Canada  Established the Supreme Court of Canada as the highest and final court of appeal in the Country  Supreme Court Act of1875 established the Supreme Court of Canada, however it was not the supreme authority on Canadian law until 1949  before this time, the highest court was the English Privy Council

The Supreme Court Today  final court of appeal; hears approx 120 cases per year  appeal must be based on issue of law or an error on the part of a judge  usually nine judges (Beverly McLaughlin is Chief Justice)  each case is allotted two hours (one hour per side)  justices (judges) are appointed from Superior Court judges or lawyers with at least 10 years experience  they must reside in Ottawa  they must not have any other jobs or businesses  they must retire at 75 years

Constitution Act  Constitution was patriated (brought home by Prime Minister Trudeau  Included an amending formula reached by all provinces except Quebec (they wanted veto power)  Amending formula; any change to the Constitution must be agreed on by 2/3 of the provinces comprising 50% of the population  Incorporated the Charter of Rights and Freedoms, entrenching the rights of Canadians