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Con Law - NCA Summary - Hogg

Con Law - NCA Summary - Hogg

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Published by Jed_Friedman_8744
Outline for Canadian NCA exams.
Outline for Canadian NCA exams.

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Published by: Jed_Friedman_8744 on Sep 09, 2011
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01/26/2015

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1
Part I: Basic Concepts1. Sources and Nature of the Constitution
Hogg, chapter 1, “Sources”
 Reference re Secession of Quebec
, [1998] 2 S.C.R. 217
1. Sources and Nature of the Constitution
Hogg, chapter 1, “Sources”
Definition
Constitutional law is the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative powers (make new laws), executive power (implement new laws) and judicial laws (adjudicating disputes) and what those limitations are.
Concerns-
Allocation of government powers (legislative, executive, judicial) among central and regional authorities is its basic concern.The protection of civil liberties is also its concern. A constitution has been described as a “mirror reflecting the national soul”.
“Constitutionalism”-
A word used to convey that idea that government is ruled by law. The word “rule of law” is used to convey the same idea. This describes asociety in which government officials must act in accordance with the law. Judicial independence is needed. The rule of law applies toParliament and Legislatures of the Province. Laws in breach of the constitution may be challenged in court.
 Constitutional Act 1867
In Canada there is no single constitutional document like the US.
The British North American Act 1867(changed in 82’ to Constitutional Act 1867) is similar.
BNA created a new Dominion of Canada by uniting three colonies of British North America and by providing the frame work for theadmission of all other British North American colonies.
The BNA act established the rules of federalism but did not break from its colonial past.
Missing features of this act:
  No amending clause in this act
&
s9 vests authority over Canada by the Queen’s representative the Governor General but the GG’s office isno where created in the Act.
 No mention or system of responsible government ( the prime minster, the cabinet)
It did not write the Supreme Court into the act although s 101 gave authority to create it.
Didn’t create a bill of rights but relied on British common law.
Constitutional Act 1982
3 Important repairs were made in 1982
.
 
1)
They were a domestic amending formula was adopted
2)
the authority over Canada of the UK Parliament was terminated &
3)
theCharter of Rights was adopted.
Still very hard to comprehend
Canada Act 1982
-a short statue of the UK Parliament which terminated the authority over Canada.
The Constitutional Act 1982 -does 2 things which are intended to effect some modernization and rationalization of Canada’s constitutionallaw.
1)
the name of the BNA act is changed to the Constitutional Act 1867. 2) for the first time a defining of the phrase “Constitution of Canada’
The Constitution of Canada
s52 ( 2)The Constitution of Canada includes: (note: definition of the Constitution of Canada)a)The Canada Act 1982, including this Act;b)the Acts and orders referred to in the schedule; andc)any amendments to any Act or order referred to in paragraph (a) or (b)Definition-
It includes 3 categories of instruments.
 a)
The Canada Act 1982 (includes the Constitution Act 1982 Schedule B)
b)
the Acts- is a list of 30 Acts and orders in the schedule to the Constitutional Act 1982. (includes The Constitution Act 1867, its amendments, theorders in council and statues admitting or creating new provinces and boundaries, and the statue of Westminster.
c)
comprises new amendments which may in the fute be made to any of the instruments in the first two categories.
The Charter of Rights
is part of the Constitution of Canada because it is Part 1 of the CA act 1982.
 Health Services Bargaining (2007)
where court held that that a statue was invalid as a breach of freedom of association. This makes collective agreement negotiations betweena union and an employer now superior to a statue
.
“Includes”
in
s 52(2)
indicates that the word is not exhaustive. This was supported by
SCC in the
 New Brunswick Broadcasting Co. v Nova Scotia (1993).
 
The held the unwritten doctrine
parliamentary privilege
should be included in
the s52(2)
definition even though nomention of it. The court’s decision means the definition can be expanded.
Hogg believes that it is best to leave the courts decisions to unwritten doctrines and written doctrines as exhaustive.
The new schedule omits the pre 1867 instruments which governed Ont and Qbe and The Royal Proclamation of 1763, the Quebec Act1774, the Constitutional Act of 1791 and the Union Act of 1840.
The Supremacy Clause is 52(1)-
This makes it the supreme law of the country.
1
 
2
The Entrenchment clause- 52(3)-
This entrenched the Constitutions Act 1982 and makes it only amendable by the proscribed procedure.
 
Imperial statues- Hogg 1.5“Parliamentary Privileges”
The federal Houses of Parliament and the provincial legislative assemblies posses a set of powers and privileges that are “necessary to their capacity to function as legislative bodies.”This was supported by the SCC in
 New Brunswick Broadcasting Co. v Nova Scotia (1993)
where
“strangers”
were excluded from the Nova Scotia legislative assembly.
Parliamentary Privileges-
regarded as a branch of the common law as it is not contained in any statute or other written instrument and it isthe courts who determine its existence and extent.
 
2 peculiar characteristics of Parliamentary Privileges stated by the SCC in
 New Brunswick Broadcasting Co. v Nova Scotia (1993)
1)
It is part of the Constitutions of Canada
2)
the powers authorized by parliamentary privilege are not subject to the Charter Rights.
 
Is different from royal prerogatives and other common law powers of government.
 No difference between in constitutional status between legislative privileged and inherit privileged-both are exempt from the Charter.
Parliamentary Privileges-
also includes freedom of speech in debate, including from legal proceedings for things said in debates. It alsoincludes right of members of parliament or legislative assemblies not to testify in court proceedings while Parliament or the Legislature isin Session.
 “Prerogative”
The royal prerogative consists of the powers and privileges accorded by the common law to the Crown. The prerogative is a branch of thecommon law, because it is the decision of the courts which have determined its existence and extent
.
Case of Proclamations (1611).
heyare powers and privileges that are unique to the Crown.
ConventionsDefinition-
Conventions are rules of the constitution that are not enforced by the law courts. Because they are not enforced by the law courts, theyare best regarded as non-legal rules, but because they regulate the working of the constitution, they are important. They prescribe the way in whichlegal powers shall be exercised.
A) Convention in Courts – 
although not enforced by courts, the existence of a convention has occasionally been recognized by the courts.
ie- 
 Liverside v Anderson [1942] 
 
conventions of responsible government which make a minster accountable to Parliament as aconsideration in deciding to give a broad rather than narrow interpretation to a statue conferring power on a Minster .
 
 Patriation Reference(1981)-
 SCC
was asked whether there was a convention requiring that the consent of the provinces be obtained before the federalgovernment requested the United Kingdom to enact an amendment to the Consti of Canada. That would affect the provinces. The court wasalso asked whether there was a legal requirement for provincial consent.
 
B) Convention in Usage-
A convention is a rule.
A “usage”
is not a rule, but merely a governmental practice which is ordinarily followed,although it is not required as obligatory
.
ie of Usage- the practice of appointing to the position of Chief Justice of Canada the person who isthe senior puisne judge of the SCC at the time of the vacancy. This practice has been departed with the appointment of McLachlin in 2000.A “
usage”
may develop into a convention. The process of evolution from usage to convention may be called a “
custom.”
A
convention
isas unenforceable as a
usage.
There is a strong moral obligation to follow a
convention
than a
usage
and departure from a convention will be criticised more.
 Patriation Reference
 
( 1981)-
Hogg 1.10(c)
the court found the convention required a “substantial degree” of provincialconsent but it was not necessary to decide exactly what the requisite degree is.
 
C) Convention in Agreement-
A convention can be established by all relevant officials agreeing to adopt a certain rule of constitutionalconduct, then that rule may immediately come to be regarded as obligatory and are usually written down by the officials in precise andauthoritative terms.
(ie
-1930 when the Prime Minster of the self governing dominions of the Commonwealth agreed that the king ( or Queen) would appoint the Governor General of a dominion solely on the advice of the government of the dominion.)
D) Convention and Law – 
A convention could be transformed into law by being enacted as a statue. A convention would also betransformed into law if it is enforced by the courts. If a court did enforce a convention (and admittedly no court has ever done so), theconvention would be transformed into a legal rule.
Why do people obey them if not law
? The breach of a convention would result inserious political repercussions and eventualchanges in law.
 Conventions
regulate the way in which legal powers shall be exercised and bring outdated legal powers into conformity with currentnotions of government. Their purpose is to “is to ensure that legal framework of the values or principles of the period
 Re: Resolution to Amend the Constitution [1981] 1 SCR 
E) Convention and Policy-
 Public School Boards Assn v Alta. [2000} & English Catholic Teachers Case v Ont [2001]-
 public schoolsupported argued that provincial educational statues violated a constitutional convention. Held- in both cases that no convention restrictedthe policy or substance of what could be enacted by the provincial Legislature in exercise in its power to make laws in relation toeducation. Conventions affected only the structure of government power, not the polices to which government power was addressed. 
 Reference re Secession of Quebec
, [
1998] 2 S.C.R. 217 
 Constitutionality of unilateral separation of Quebec 
Held-
Quebec cannot secede
2
 
3
from Canada unilaterally; however, a clear vote to secede in a referendum should lead to negotiations between Quebec and the rest of Canada for secession.
Hogg 1.8-
 The SCC invoked unwritten principles of democracy, federalism, constitutionalism and the protection of minorities to hold that,if a province were to decide in a referendum that it wanted to succeed from Canada, the federal government and other provinces wouldcome under a legal duty to enter into negotiations to accomplish the secessions. This illustrates the active and creative role that the modernSupreme Court has carved out for itself.
Main Conventions
I.the governor general only acts on the advice of the Privy CouncilII.this Privy Council is not the full Council described in s13 of the Constitution Act 1867 but rather a smaller subset, the CabinetIII.the cabinet chosen by the Prime Minister, and the number of ministers is up to him/her IV.the primes minster, although no where mentioned in the Constitution Act 1867, is the head of governmentV.the prime minster and his/her cabinet must have the support of a majority of members in the house of commonsVI.the prime minster and his/her cabinet must have seats in the House of Commons or SenateVII.House of Commons support for Prime Minsters and cabinets is rallied by means of Political parties andVIII.A failure to command and support of a majority of members in the House of Commons results in the government stepping down andusually the calling of a general election.
Other Conventions
I.The exercise of prerogative powers by the crownII.The operation of Parliament and the legislatures generally, including political parties and at the national level, the relationship betweenthe elected house of Commons and the appointed SenateIII.The operation of the federal and provincial cabinets, minsters and civil services and the relationship among themIV.Federalism generally, aside from the formal divisions or powers, including reservation and disallowance of federal and Provincial actsand the role the federally appointed lieutenant governor in provincial mattersV.The role of judges and courts in the governmental process and the independence of judges and courts interference by the executiveand legislative branches and
2. Amending Procedures
Constitution Act, 1982
, Part V, ss.38-49Hogg, chapter 4, “Amendment”, and chapter 5.7, “Secession”
 Reference re Secession of Quebec
, [1998] 2 S.C.R. 217Part V of the Constitution Act, 1982Hogg 4.2(a)
Part V of the Consti Act 1982 is headed “Procedure for Amending Constitution of Canada.” It provides 5 different amending procedures.
1.
A general amending procedure(s38)
for amendments not otherwise provided for(as well as for amendments listed in s42)requiring theassents of the federal Parliament and 2/3 of the provinces representing 50 per cent of the population;
2.
A Unanimity procedure(s41),
for five defined kinds of amendments, requiring the assents of the federal Parliament and all of the provinces,
3.
A some but not all provinces procedure(s43
),for amendment of provisions and only those provinces affected;
4.
The federal Parliament alone(s44)
has power to amend provisions relating to the federal executive and House of Parliament ;and
5.
Each Provincial Legislature alone(s45)
 has power to amend “the constitution of the province”.
3

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