1. Constitutional Framework
October 24, 2018
Certificate Program in Public Sector Leadership and Governance

2. Outline Why a constitution? Development of Constitution of Canada
Canadian Institutions
Federalism
Charter rights
Indigenous rights
Amendments

3. Why a constitution?
Power
Values (written and unwritten)
Institutions

4. 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

5. 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

6. 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

7. 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?

8. 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

9. 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)

10. Indigenous rights Royal Proclamation, 1763 Treaties Title
Section 35 of the Constitution Act, 1982
Inherent rights
Recognition of rights
Honour of the Crown

11. 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