1. The Constitution
‘constitution’
fundamental rules and principles by which a state is governed
What is the purpose of a constitution? Why have one?
British North America Act, 1867
an Act of the UK Parliament….
the core, written element of the constitution
Canada Act, 1982
Constitution Act, 1982
an Act that made the constitution fully ‘Canadian’
Charter of Rights and Freedoms, 1982
superior to ordinary legislation…
the courts can/will invalidate legislation that is inconsistent
the constitution is not just a written document…..
‘conventions’
‘customs and tradition’ thru the ages…..
an example in Canadian gov’t of a ‘convention?’
not enforceable in the courts
Note:
The ‘timeline’ of the Canadian is far more complex than the BNA Act (1867) and the Canada Act (1982) suggest……some examples:
1931 – Statute of Westminster
1960 – Bill of Rights
Clarity Act, 2000

2. The Charter of Rights and Freedoms
The Charter increased the protection of rights of Canadian citizens from the actions and policies of all levels of government because it:
created new rights that did not previously exist in convention or common law.
is entrenched in the Constitution.
it cannot be changed unless the amending formula is met, which is:
7/10 provincial legislatures representing 50% of the pop. must agree
Main Clauses:
Fundamental Freedoms
Democratic Rights
Mobility Rights
Legal Rights
Equality Rights
Official Languages
Application:
The Charter contains three clauses that define its application:
Section 1 allows for violation of the Charter in certain circumstances
Section 32 defines the scope of the Charter
Section 33 provides for legislative override of the Charter
PM Trudeau and Queen Elizabeth II signing the Canada Act in 1982 – when the Charter was entrenched in the Constitution

3. The Supreme Court and the Charter
Our Charter allows our courts to interpret laws, laws that politicians often make.
The courts have sometimes been accused of taking over lawmaking power and inserting their own personal viewpoints and values into their court judgments.
Is this judicial activism?
Others argue that the elected governments are avoiding controversial issues, forcing the courts to protect basic rights.
Significant challenges lay ahead as the courts struggle with interpreting the Charter:
What is a ‘reasonable limit?’
What is freedom of religion and expression?
What constitutes an ‘unreasonable search and seizure?’
….to name but a few….
There is no doubt that since the entrenchment of the Charter, Canadian Judges are more powerful than ever. Chief Justice Beverley McLachlin has said that the Charter of Rights and Freedoms cannot be all things to all people. She has also stated that the Court is being thrust into the ‘uncertain sea of value judgments.’

4. The Supreme Court of Canada and the Charter:
Democratic or Anti-Democratic?
1982 – Charter of Rights and Freedoms gives courts broad new powers
If the Supreme Court finds that any provincial, territorial or federal law trespasses on rights protected in the Charter, it can declare the law unconstitutional and no longer in effect. This has made the Supreme Court of Canada very powerful.
Sup. Ct. of Canada decisions have been very controversial due to the social and moral issues:
R. v. Morgentaler, 1988: The court struck down Canada’s abortion law because it violated section 7 of the Charter. That section confirms everyone’s right to life, liberty and security of person. Since the abortion law restricted a woman’s ability and right to obtain an abortion legally, it was struck down. The government chose not to create a new abortion law.
R. v. Daviault, 1994: The court ruled that extreme drunkenness may be a defense in rape (now sexual assault). According to that decision, convincing someone who did not know what he or shewas doing is a violation of his or her Charter rights.
Carter v. Canada (Attorney General), 2015: Kay Carter and Gloria Taylor, argued that they were being discriminated against because their physical disabilities didn’t allow them to kill themselves the way able bodied peopled could. Both women had degenerative diseases and wanted the right to have a doctor help them die. The SCC ruled in their favour, finding that much had changed since the last time the SCC considered the issue See Sue Rodriguez Case

5. Process of Supreme Court of Canada Appointments
Eligibility & Representation
To be eligible to serve on the Supreme Court, an appointee must either:
be or have been a judge of a superior court of a province or
have been a barrister or advocate with at least 10 years standing at the bar of a province
three of the judges on the Court must be appointed from Quebec
finally, it is convention, but not mandatory, that the remaining six positions on the Supreme Court are divided in the following manner: three from Ontario, two from Western Canada, and one from Atlantic Canada.
Review by Advisory Committee
In 2004, Liberal Prime Minister Paul Martin announced that nominees to the Supreme Court would be reviewed by a special parliamentary committee, that would report their findings to Parliament. This led to the establishment of an ad hoc parliamentary committee, which reviewed the 2004 nominations of justices Rosalie Abella and Louise Charron.
Subsequently, a formal Advisory Committee on Supreme Court appointments was announced, which is formed each time a vacancy on the Court occurs.
However, it is the PM who chooses the final nominee from the Committee's short list. Neither the Committee nor Parliament has the power to block the PM’s final decision.

6. Supreme Court Justices
Chief Justice Richard Wagner (Que)
Appointed in 2012 (Harper)
Appointed Chief Justice in 2017 (J. Trudeau)
Rosalie Abella (Ontario)
Appointed in 2004 (Martin)
Marshall Rothstein (Manitoba)
Appointed in 2006 (Harper)
Thomas Cromwell (Nova Scotia)
Appointed in 2008 (Harper)
Michael Moldaver (Ontario)
Appointed in 2011 (Harper)
Andromache Karakatsanis (Ontario)
Sheilah Martin (Alberta)
Appointed in 2017 (J. Trudeau)
Supreme Court of Canada Justices, 2018
Clement Gascon (Quebec)
Appointed in 2014 (Harper)
Suzanne Cote (Quebec)
While the Charter is no longer in its infancy, these are still early years in its life. The Charter is still a work in progress, an unfinished project. Perhaps, it will always be. Future generations will have a great role to play in shaping it.
Former Chief Justice Beverley McLachlin, 2007