THE CANADIAN CONSTITUTION
-for our purposes, the word constitution will be used in the following wide
sense: all of the important rules, whatever their source, which allocate
governmental power within a nation; in other words, all of the important
rules which establish, empower and regulate the principal institutions of
government
-this wide sense of the word includes the rules which are contained in the
basic constitutional document (if there is one), but it also encompasses rules
which are not contained in the basic constitutional document, and even some
rules which are not enforceable in the courts
-there are 2 sources of constitutional principles in Canada, or 2 main parts
to the Canadian Constitution: the unwritten part, and the written part
i) The Unwritten Constitution:
important statutes:
-Canadian statutes: act creating Supreme Court in 1875, acts creating new
provinces, Bill of Rights (1960)
-British statutes: Letters Patent constituting the office of Governor
General of Canada, British statutes bringing in new provinces + territories,
Statute of Westminster, 1931
case law and common law:
-case law = interpretations/judgements on statutes, in case decisions, by
judges = judge-made law
-in Canada, case law on important statutes such as the BNA Act, outline
important constitutional principles
-common law = case law or judge-made law which does not rest on statutory
foundation - much of the prerogative powers of the Crown have been and are
determined by the courts with no reference to statutes
-courts have developed many of the rules concerning the liability of the
Crown and its employees
-pre-Charter, the courts also made much of the law concerning civil liberties
by establishing rule to limit the powers of government officials and
administrative agencies
conventions:
-the preamble to the BNA Act states that Canada is to have a constitution
“similar in principle to that of the United Kingdom”
-if a person reading the BNA Act did not know what this preamble meant,
he/she would think that Canada was ruled completely by a monarch
-however, the preamble meant that the important principles and values of
the constitutional experience of England were to be passed on to the
Canadian constitution, and these values and principles, developed in England
over several centuries, served to create a system of government in which
the monarchy had very limited real power
-the important constitutional principles and values that have been passed
down to Canada from England operate in the form of conventions
-conventions are rules of the constitution which are not enforced by the law
courts
-thus they are non-legal rules
-what they do is prescribe the way in which legal powers should be exercised
-3 important conventions are the doctrines of responsible government,
parliamentary supremacy and the rule of law:
>responsible government: this doctrine means that the executive is
responsible to the legislature at both the federal and provincial level,
and that both the executive and the legislature are responsible to the
people at both the federal and provincial level
>parliamentary supremacy: this doctrine means that Parliament, or
the legislature of a province, can make or unmake any law, and that no
person or group of persons has a right to change or ignore a law
passed by Parl. or a prov. legislature; in other words, only the people
of Canada, through the persons they elect, can make or change laws
-this also means that Parliament or the legislatures have to obey their
own laws, including laws on how to make laws
>rule of law: this doctrine involves 3 basic concepts:
(i) we should have a chance to give our side of the story – our
day in court
(ii) the person making the decision, the judge or government
official, is free to make what he feels is the right decision
(iii) the decision is fair, reasonable, and rational
-some conventions have the effect of transferring effective power from the
legal holder to another official or institution
-other conventions limit an apparently broad legal power, or even prescribe
that a legal power shall not be exercised at all
>consider some further examples:
>the BNA Act and many Canadian statutes, confer extensive powers on
the Governor General, but a convention stipulates that the Governor
General will execute those powers only in accordance with the advice
of the cabinet or in some cases the Prime Minister
>the BNA Act makes the Queen, or the Governor General, an essential
party to all federal legislation, and it expressly confers upon the
Queen and the Governor General the power to withhold royal assent
from a bill which has been enacted by the two houses of Parliament,
but a convention stipulates that the royal assent shall never be
withheld
>the PM and cabinet are not mentioned in the BNA Act or in many
other statutes, but the convention(s) of responsible government
prescribe that power will be exercised not by the Queen, GG, or
Governor in Council, but by the elected ministry
-conventions are often distinguished from customs or usages: a convention is
a rule which is regarded as obligatory by the officials to whom it applies; a
custom or usage is not a rule, but merely a governmental practice which is
ordinarily followed, although it is not regarded as obligatory
>customs as understood in this sense, as governmental or political
practices, are not constitutional rules
>e.g. it is a custom in our political system that political parties
compete against each other in elections
ii) The Written Constitution
-the written constitution consists of the BNA Act, 1867, which was renamed
the Constitution Act, 1867, in 1982, and the Constitution Act 1982, which
consists of the following 7 parts
-
Part I - Canadian Charter of Rights and Freedoms
Part II - Rights of the Aboriginal Peoples of Canada
Part III - Equalization and Regional Disparities
Part IV - Constitutional Conference
Part V - Procedure for Amending the Constitution of Canada
- Part VI - Amendment to the Constitution Act 1867 (to give the
provinces more power over natural resources)
- Part VII - Primacy Clause
-together, the Constitution Act, 1867, and the Constitution Act, 1982 (with
its 7 parts), make up Canada’s written constitution
-Constitution Act, 1867, or the BNA Act
-for our purposes, it accomplishes 2 main jobs:
1) it brings to Canada unwritten constitutional principles as such
responsible govt, parliamentary supremacy, rule of law, and the role of
the common law
2) it outlines the nature of Canadian federalism through the
distribution of powers between the federal and provincial govts
-the Constitution Act, 1982, which technically includes the Constitution Act
1867, represented the amendment, enlarging, and patriation of the Canadian
Constitution
-the Constitution Act, 1982, added the following new provisions to our
constitution:
>making the Canadian Constitution a completely Canadian legal
document with the ending of the requirement of British approval for
constitutional change
>entrenching a Charter of Rights and Freedoms, including language
rights
>recognizing native/aboriginal rights
>establishing the principle of equalization of revenue-sharing between
rich and poor provinces
>setting out an amending formula to facilitate further constitutional
changes in Canada, by Canadians
>strengthening provincial control of over natural resources
>a declaration that the Constitution is the supreme law of Canada, and
that any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force or
effect
- Canadian Charter of Rights and Freedoms:
- 2 key rights-limiting sections of Charter:
1) S. 1 – known as the Reasonable Limits Clause – “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.”
>thus, it is within the power of either the fed govt. or a prov.
govt to enact laws which limit/restrict/infringe on our rights
and freedoms as long as they are seen to be reasonable by the
courts
>e.g. Criminal Code provisions limiting freedom of expression
when the expression is public and amounts to the willful
promotion of hatred against an identifiable group
2) S. 33 – known as the Notwithstanding Clause as well as the Opting
Out Clause
-“Parliament or the legislature of a province may expressly declare in
an Act of Parliament or of the legislature, as the case may be, that
the Act or a provision thereof shall operate notwithstanding a
provision included in sections 2 or sections 7 to 15 of this Charter.”
>thus, Parliament or any provincial legislature can pass an Act
that contravenes a Charter protected right or freedom in any
of sections 2, 7, 8, 9, 10, 11, 12, 13, 14, and 15 as long as the Act
invokes the Notwithstanding clause – these sections cover the
most important rights + freedoms in the charter
>e.g. Quebec used the notwithstanding clause to protect a law
which banned/outlawed English signs (this law contravened the
Charter’s S. 2 guarantee of freedom of expression)
>many people are critical of the notwithstanding clause, claiming
that it makes the document not a very good guarantor of our
rts. + freedoms
>others argue that, if used wisely, this clause can allow
Parliament and the legislatures to regain legislative supremacy
over the courts – they argue that it may sometimes be
appropriate for Parliament or a provincial legislature to protect
a law from judicial review
- copy-out in full the following sections of the Charter: 2, 3, 7, 8, 9, 10, 11(a),
(b), (c), (d), 12, 13, 15(1), (2), 16(1), (2), 24(2), 32(1)(a), (b)