Constitutional Law
CLN4U
Constitution
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A legal framework or guideline that:
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Establishes how power and authority within a
country is exercised
Assigns limits to that power
A constitution provides clear guidelines for
how the government can operate, and
while important, it is not necessary (i.e.
Britain)
Canada’s Constitution
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Canada’s governing principles are based
on the British model
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the governing principles are not codified in a
single document, but in constitutional
documents, conventions, and common law
Constitutional Documents
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Establish the structure of gov’t, division of
powers, and rights of individuals
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The BNA Act (passed by British parliament in
1867)
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Amended by British Parliament several times after
(all subsequent bills are also considered
constitutional documents)
Problem?
Constitutional Documents
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Eventually, we wanted to be able to
change our constitution without involving
a foreign government
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i.e. come up with an “amending formula”
Lots of disagreement on how to do this
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whose approval is needed?
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Provinces? Aboriginals?
simple majority vs. unanimous?
Constitutional Documents
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In the absence of any consensus on the
amending formula, the federal gov’t attempted
to patriate the constitution without provincial
consent
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Provinces take feds to court
Supreme Court rules it’s not technically illegal, but to
do it without substantial provincial support goes
against unwritten convention
Eventually 9/10 provinces agree on formula and
constitution is patriated in 1982
Constitutional Documents
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The renamed “Constitution Act, 1982”
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Canadian Charter of Rights and Freedoms is
embedded within it
Other acts include
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the Royal Proclamation, 1763 (applies English
common law to all of North America, establishes
Aboriginal rights)
the Quebec Act, 1774 (allows Quebec to use civil law
The Statute of Westminster, 1931 (officially ends
Canada’s colonial status)
Conventions
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Unwritten rules followed due to tradition;
provide details of how out gov’t operates
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Constitutional documents dicate how the gov’t
is set up, conventions are how it’s run
For example, no constitutional document
states that Canada has to be a democracy
Common Law
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Addresses constitutional disputes and
establishes precedents
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AKA Case Law
Constitutional documents can be very vague;
courts interpret and clarify them, establishing
precedents, which can be modified/adapted
over time
Questions
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What are the 3 components of Canada’s
Constitution?
What’s the purpose of the BNA Act? How did the
lack of an amending formula pose a problem for
the development of the constitution?
Suggest 3 advantages and 3 disadvantages of
having a constitution based on unwritten
conventions and common law
Questions
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Constitutional documents, conventions, common law
BNA Act:
Purpose: establish Canada as a nation
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Parliamentary style democracy
Division of powers between federal and provincial
Canada will be a self-governing colony of England
Will follow British political and legal systems/traditions
Lack of Amending Formula: Federal Parliament had
to petitions British Parliament to amend the BNA act
whenever changes to the Constitution were required (ex:
admitting new provinces to confederation)
Questions
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Disadvantages:
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Conventions aren’t formally written into the constitution and rely
on past practice for enforcement (no guarantees that they’ll be
followed)
Conventions and common law develop over long periods of time,
which can slow down constitutional evolution
Common law relies on the courts upholding precedents, and is
subject to change as a result of judicial interpretation in newer
cases
Advantages:
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Constitution can remain flexible and evolve with society
Large body of common law can expand citizens’ rights beyond
what is explicitly written in the constitution (which can’t possibly
address every situation)
Not as formalized as amendments and clauses – easier to
change
Jurisdictional Powers
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Read p 143 – 146
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Answer questions 1 and 3 on p. 150