Rights and Freedoms Unit 2

What’s Ahead Chapter 4 Canada’s Constitutional Law Chapter 5 The Charter and the courts Chapter 6 Human Rights in Canada Chapter 7 Majority and Minority Rights

Chapter Four Canada’s Constitutional Law Chapter Focus Explain the role of the constitution Explain how constitutional law developed Distinguish law makers powers Explain the role of courts Understand key events in constitutional history

The Importance of the Constitution Provides the the basic framework for the nation’s form of government Allocates power to the provinces Sets out the procedures for making laws, and amending them Reflection of society Written and unwritten

3 Sources of Canada’s Constitution Constitution Act, 1867 ( BNA act) & Constitution Act, 1982 Unwritten Constitution Court rulings that interpret the written constitution (precedents)

British North America Act,1867 Written by fathers of confederation Changes had to be passed by British parliament Patriated in 1982, renamed Constitution Act, 1982

Constitution Act, 1982 Included Canadian Charter of Rights and Freedoms, and an amending formula

Canada’s Unwritten Constitution The original document (BNA Act) made no mention of Prime Minister, however it did contain the line “a constitution similar in principle to that of the United Kingdom” Many of Britain's systems were adopted here, and became part of our government

Conventions Conventions are unwritten rules of political conduct, over time they become binding. And develop into important principles

An example is the idea that a Cabinet member must resign if he or she does not agree with a decision reached by cabinet, referred to as “Cabinet solidarity”

Lucien Bouchard Left Brian Mulroney’s cabinet in 1990 after the failure of the Meech Lake accord, went on the become premier of Quebec and led Separation Referendum

Court Decisions (Common Law) The third source of Canadian constitutional law Settle disputes over the meaning or intent of certain sections, phrases, and even individual words Government must abide by decisions

Components of Constitution The Division of Powers The Provincial level was given jurisdiction over regional and local concerns, such as Education and Healthcare. Municipalities were not given powers under the constitution; the provinces created municipalities as an extension of their jurisdictions.

Federal Jurisdiction Section 91 Banking Bankruptcy Census and statistics Citizenship Court procedures Criminal law Currency Defence Employment ins. Foreign affairs Immigration Indian Affairs Marriage and Divorce Penitentiaries Taxation Trade and commerce Patents and copyrights

Provincial Jurisdiction Section 92 Direct taxation Labour unions Hospitals/Health care Organization of municipal governments Natural Resources Property law Justice Education

Intra Vires and Ultra Vires What happens if there is a disagreement over an area that is claimed by two levels of government? Court decides If an action by a legislature (provincial or federal) is within its jurisdiction that legislature has acted intra vires its authority An action by a legislature (provincial or federal) that is outside its jurisdiction that legislature has acted ultra vires its authority

Pith and Substance Doctrine Court uses the pith and substance doctrine to determine whether or not the action is legal in areas where both levels of government have claimed authority Determines what was the overriding purpose of the law Read page 146 “Pith and Substance”

THE GOVERNMENT OF CANADA Structure of Government THE GOVERNMENT OF CANADA Judicial Branch

Parliament The Role of the Courts The role of the courts is to interpret the constitution and to solve disputes between the levels of government. Judgments made in lower courts such as the Provincial Courts or the Federal Court can be appealed to the Appeals Courts, Supreme or Superior Courts, and ultimately to the Supreme Court of Canada. Judgments made at the Supreme Court of Canada cannot be overturned, and become “Legal Precedent” and therefore part of Case Law.

Supreme Court Of Canada Court of Appeal (Province A) t of Appeal (Province B) Court Martial Appeal Court Military Courts (Various Types) Federal Court of Appeal Supreme Court (Trial Court) Court of Queen’s Bench Federal Court (Trial Court) Tax Court provincial courts superior courts courts of appeal Supreme Court of Canada Provincial Court (Province A) (Province B)

Judicial Committee of the Privy Council Located in London England, this body was part of the British Court system and not a Canadian court. The JCPC was the highest court of appeal for Constitutional matters until 1949, when The Supreme Court of Canada assumed this role. The JCPC overturned a Supreme Court of Canada decision in 1929 with the famous “persons case”, allowing women to be appointed to the Senate.

The 1929 Person's Case October 18,five Alberta women won their fight to have women declared “persons” under the law. The battle stemmed from an 1867 common law ruling that "Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges."   

With her sights set on a Senate seat, Emily Murphy joined forces with four other like-minded women, Irene Parlby, Nellie McClung, Louise McKinney and Henrietta Muir Edwards, to appeal to the Supreme Court of Canada for clarification of the definition of the word ‘person’ as it appeared in the British North America Act.

Patriation of the Constitution Patriation of the constitution meant that Canadians would fully control the constitutional law, and that they would be able to develop an amending formula for any future changes to constitutional law. Legal Convention had required that the provinces must support any new amending formula.

Constitutional Amendments The Meech Lake Accord (1987) Allowed “distinct society” status for Quebec in order to protect cultural and religious aspects of Quebec’s society. Gave the provinces more power in the areas of Senate and Supreme Court nominations. Meech Lake failed to recognize the concerns of aboriginal Canadians. Was not ratified by all provincial legislatures before the deadline and therefore expired.

As the member for Rupert's Land, Elijah Harper stalled the Manitoba legislature past the deadline for approval of the Meech Lake Accord

…Constitutional Amendments The Charlottetown Accord (1992) In addition to Quebec’s “distinct society” status, Aboriginal self-government was addressed. The process for selecting the Supreme Court Justices would be “entrenched” in the constitution. The Senate would be elected The accord failed by referendum in six provinces and one territory.

1995 Quebec Referendum Failure to make agreement directly led to another vote in Quebec Led by Lucien Bouchard

1995 Quebec Referendum 50.56 % voted to stay

Issue for discussion Should the government fund private religious education?