1. Rights and Freedoms
Unit 2

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

3. 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

5. 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

6. 3 Sources of Canada’s Constitution
Constitution Act, 1867 ( BNA act) & Constitution Act, 1982
Unwritten Constitution
Court rulings that interpret the written constitution (precedents)

7. 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

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

9. 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

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

11. 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”

12. 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

13. 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

14. 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.

15. 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

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

17. 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

18. 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”

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

20. 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.

21. 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)

22. 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.

23. 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."   

24. 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.

26. 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.

27. 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.

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

30. …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.

31. 1995 Quebec Referendum
Failure to make agreement directly led to another vote in Quebec
Led by Lucien Bouchard

32. 1995 Quebec Referendum
50.56 % voted to stay

33. Issue for discussion
Should the government fund private religious education?