The Canadian Constitution
and
The Charter of Rights and Freedoms
Constitutional Law
The Constitution:
 Outlines: Responsibilities, Rules,
Rights, Guidelines & Authority

It is a legal
framework that
establishes how
power and
authority within a
country are
exercised.
Importance

It is important for a democratic nation to
have a constitution because it outlines and
regulates the powers of the state. It also
establishes limits to that power, which
prevents the development of an
undemocratic
abusive
government.
Midnight Express
http://www.youtube.com/watch?v=Cv53d3bZvJg&p=944EE953323C4E13&playnext=
1&index=28
The three components of the
Canadian Constitution are:



Constitutional Documents
Conventions
Common Law
Constitutional Documents

These are documents which establish
the structure of government, division of
powers, and rights of individuals.

E.g. BNA Act 1867 establishes a
British like parliamentary system with a
Federal System of Jurisdictional
Powers
Constitutional Documents







Constitution Act 1867
Rupert’s Land Act 1868 (Hudson’s Bay)
Manitoba Act 1870
Constitution Act 1871
PEI Terms of Union
Yukon Territory Act 1898
Alberta Act 1905
Constitutional Documents (continued)








Saskatchewan Act 1905
Statute of Westminster 1931 (UK)
Newfoundland Act 1949
Constitution Act 1960 (Supreme Court)
Constitution Act 1982
Constitution Act 1998 (Newfoundland Act)
Constitution Act 1999 (Nunavut)
Constitution Act 2001 (Newfoundland & Labrador)

Constitution Act 1982 entrenches the
Charter of Rights and Freedoms
Re-education in China 3min No Trial
http://www.youtube.com/watch?v=jJVs6SHZLgc&feature=PlayList&p=AF5C65C056BC63A3&index=31
Conventions
These are unwritten rules followed primarily for
reasons of tradition rather than law, which
provide the details of how our government
operates
e.g.: Supreme Court justices
are selected from
various parts of the
country.

Convention example: If the PM loses a
“confidence” vote in the House of
Commons they must call an election
Unwritten Rules
These are unwritten rules and cannot
be enforced by the courts
Harper Porogues Canada Parliament to avert Defeat
Common law

Establishes precedents to be upheld
by the legal system. Common law is
flexible. The principles can be altered
over time as the views and opinions of
society change.
Charter History



Canada's original Constitution, the
British North America Act 1867
founded Canada as a nation.
It could only be changed by Britain
It did not have a "Bill of Rights"
Disappeared A.I 2 min
http://www.youtube.com/watch?v=tpdWdKn0FQU&feature=PlayList&p=AF5C65C056BC63A3&index=22
The Canadian Bill of Rights




Passed into law in 1960
It recognizes the rights of individuals to life,
liberty, personal security and enjoyment
It protects rights to equality before the law
and protects the freedoms of religion,
speech, assembly and association,
It protects legal rights such as the rights to
counsel and "fair hearing."
Problems with the
Bill of Rights



Had no more power than any other
law.
Was not helpful unless a law itself was
discriminatory
Only applied to federal, not provincial
laws.
Guantanamo Bay
http://www.youtube.com/watch?v=Dr8LdsBd_Tw&feature=related
Guantanamo Protests A.I. 4 min
http://www.youtube.com/watch?v=VlPxdOcvWtA&feature=PlayList&p=AF5C65C056BC63A3&index=14
Prime Minister Trudeau

In 1982 Trudeau patriated the
constitution and included The
Canadian Charter of Rights and
Freedoms
Influences on the Charter:



United Nations Universal Declaration
of Human Rights 1948
European Convention for the
Protection of Human Rights and
Fundamental Freedoms 1950
International Covenant on Civil and
Political Rights 1966
The Constitution Committee
Listened to over 300 presentations from:
 Women
 Aboriginal people
 People with disabilities
 Ethnic and cultural minorities and others.
 Plus 1200
written submissions
Charter Supremacy

With the Charter's supremacy confirmed by
section 52 of the Constitution Act, 1982, the
courts continued their practice of striking down
unconstitutional statutes.
The Charter
Interpretation and enforcement
The task of interpreting and enforcing
the Charter falls to the courts, with
the Supreme Court of Canada being
the ultimate authority on the matter.
Jurisdiction Issues

Intra Vires

Ultra Vires
Pith and Substance Doctrine

This is the
overriding purpose
or intent of the law
when both levels of
government have
legitimate claims of
authority.

What is the most important or
dominant characteristic of the law?
Jurisdiction?
Protection of Children
Involved in Prostitution Act
(Alberta Parliament)

The legality of this law was
challenged as it was thought to
breech the boundaries of Criminal
Law which is a Federal jurisdiction
Supreme Court Ruling

The pith and substance
of the Protection of
Children Act… is the
protection of children from
sexual abuse and other
risks related to health
which is a provincial
jurisdiction.
The SCC ruled it did not invade the
domain of the criminal law.
Residual Powers
Issues unforeseen in 1867 will be handled by the Federal Government
Constitutional Tests

In several important
cases, judges
developed various
tests and precedents
for interpreting specific
provisions of the
Charter. These include
the Oakes test for
section 1, set out in
the case R. v. Oakes
(1986),
Death penalty in China A.I. 2 min
http://www.youtube.com/watch?v=WaJxqZzoyrA&feature=PlayList&p=AF5C65C056BC63A3&index=23
Reasonable Limits Clause

Section One of the Charter states:
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.
Break the law
Go to jail
Lose your right to liberty
Lose your democratic rights?
Oakes Test
1.
2.
3.
4.
Reasons for limiting the Charter rights must be
important.
The measure carried out to limit the right must
be reasonable and logically connected.
The right must be infringed upon as little as
possible.
The more severe the rights limitation, the more
important the objective must be.
R.I.D.E. (Reduce Impaired Driving Everywhere)
1.
2.
3.
4.
Reason?
Rational Connection?
Infringement?
Limitation?
A.I. pleas for global moratorium on capital punishment 3 min
http://www.youtube.com/watch?v=jHsfGxb76A4&feature=PlayList&p=AF5C65C056BC63A3&index=11
Criticism of the Charter
Judges do not have to
be as sensitive to the
will of the electorate

The Charter protects from
“Tyranny of the Majority”
~ Is majority rule not
the foundation of a
democratic society?
Amending the Constitution




Approval of the House of
Commons
Approval of the Senate
Approval of two-thirds of
provinces representing 50
percent of population
The territories are not part of
the formula

If an amendment only affects the Federal
Parliament then only the Federal Parliament
needs to approve of the change
Eg. If the retirement
age of Senators was
suggested only the
Federal Parliament
would need to approve.

If an amendment has an impact on only one
province then the Feds and that province
need to agree to the change.

Eg. In 1998 Newfoundland changed the
structure of its education system to move
away from funding based on religion. This
required the consent of the Newfoundland
House of Assembly and the Federal
Parliament.
Attempts at Constitutional Change

In 1982 Quebec did not sign the
constitution. The Quebec government
at the time was controlled by the
separatist Parti Quebecois.
Rene Levesque
Leader of the Parti Quebecois
1.
2.
3.
4.
5.
Recognition as a distinct society
A greater role in immigration to the
province
A role in appointments to the Supreme
Court
Limitations on the ability of the feds to
spend money in areas of provincial
jurisdiction
Veto power over all constitutional changes
Quebec & The Constitution
Two attempts have been made since to
bring Quebec into the Constitution
Act.
1. The Meech Lake Accord
Elijah Harper stalled the
Manitoba legislature past the
deadline for approval of the
Meech Lake Accord
Quebec wanted:
1.
2.
3.
4.
5.
A recognition of Quebec as a "distinct society"
A constitutional veto for Quebec
Increased provincial powers with respect to
immigration
Extension and regulation of the right for a
reasonable financial compensation to any province
that chooses to opt out of any future federal
programs
Provincial input in appointing senators and
Supreme Court judges
1987 Meech Lake Accord
– Not ratified-
Quebec does not sign the constitution
2. 1992 Charlottetown Accord
~National referendum~
1.
2.
3.
4.
5.
Self-government for Aboriginal peoples
Senate reform
Strengthened equality for male and
females
A recognition of group rights in addition to
individual rights
A minimum representation of 25% in
House of Commons from Quebec
National referendum – 54% voted no
Quebec still remains
left off the Constitution
Independence Vote? 1995
"Do you agree that Quebec should
become sovereign after having made a
formal offer to Canada for a new
economic and political partnership within
the scope of the bill respecting the future
of Quebec and of the agreement signed
on June 12, 1995?"
What was the question?
A poll released just weeks before the
October 30 vote showed more than 28%
of undecided voters believed a "Yes"
vote would simply mean Quebec would
negotiate a better deal within
confederation and remain part of
Canada.
Quebec Referendum
On Succession ~ 1995
No 50.58%
Yes 49.42%
Reference re Secession of
Quebec 1998

Quebec cannot unilaterally secede

Canada must negotiate a secession
Clarity Act 1999
The House of Commons will decide on
the clarity of wording in future separation
questions.