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Con Law Final - NCA Exams

Con Law Final - NCA Exams

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CONSTITUTIONAL LAW
1)Sources and Nature of the Constitutiona.Constitutional Act 1867
i.British North American Act 1867(changed in 82’ to Constitutional Act 1867)ii.No amending clause in this actiii.No mention or system of responsible government ( the prime minster, the cabinet)
 b.
Constitutional Act 1982
(enacted through 1982 Canada Act)i.domestic amending formula was adopted
ii.
authority over Canada of the UK Parliament was terminated
1.
Canada Act 1982
-a short statue of the UK Parliament which terminated the authority over Canada.iii.Part 7 General
1.
The Supremacy Clause is 52(1)-
This makes it the supreme law of the country.
2.
The Entrenchment clause- 52(3)-
This entrenched the Constitutions Act 1982 and makes it only amendable by the proscribed procedure.
 
c.
Constitution of Canada’ “includes”– defined for first time in 1982 Const Act (s52):
1.
The Canada Act 1982, including this Act (includes the Constitution Act 1982 Schedule B)
2.
the Acts and orders referred to in the schedule - list of 30 Acts and orders (includes The Constitution Act 1867, itsamendments, the orders in council and statues admitting or creating new provinces and boundaries, and the statue of Westminster.
(a)
Statute of Westminister – conferred on Canada power to repeal or amend imperial statutes applying to Canada, but BNA Act excluded at Canada’s insistence (so Const wd be more difficult to amend)3.any amendments to any Act or order referred to in paragraph (a) or (b)
4.
“Includes” in s 52(2) indicates that the word is not exhaustive.
(a)
Other unwritten principles
underlie text of Const Act
(i)
Secession Reference [1998]
- 4 unwritten principles of Const
- democracy, federalism, constitutionalism,protection of minorities
. B/c of democracy, federalism - fed govt and other provinces would be under dutyto enter negotiations1.Reference by the federal government to the Supreme Court of Canada, in which the Court was askedwhether Quebec could secede unilaterally from Canada. Unilateral secession not possible -- Secessionwould require const’l amendmt in accordance with its procedures (but did not specify which one wouldapply).
a.
SCC also stated:
a clear majority on a clear question of law
put to referendum in Quebec, would“confer legitimacy on demands for secession” and give rise to an
obligation
on all parties toConfederation to negotiate the required constitl changes. SCC also pointed out that the politicalramifications for failure to negotiate in good faith would include the defaulting govt’s legitimacyin the eyes of the international community would be undermined. ... b.Principle of Effectivity: If seceding govt achieved effective control of a territory and recognition by international commty the secession although unconstitutional would have to be recognizedeventually as a reality by Canada’s own Constl Law.
2.Clarity Act ( created after Succession Reference) Hogg 5.7(a)
a.
Defines “clear” - s1– 
if a province proposes a referendum on succession , the HoC is to consider the question and determine whether the question is “clear”. Whether clear depends on “thequestion would result in a clear result in clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independentstate. “i.Act states question is unclear if “mere focus to negotiate” or envisages economic /politicalarrangement with Canada that obscures a direct expression of the will of the population of that province
 b.
s 2
 – if q is clear, the Hof C has to determine if the majority is “clear”.i.The act does not define “clear”- requires HoC to take into acct size of majority, percentage of eligible voters who voted, and any other matters or circs
 
ii.If HoC finds that no clear majority in favour of secession, then Govt is prohibited by Act fromenterin into negotiations
c.
s3
 – the Act recognizes that under the Constitution of Canada, there is no right to unilateralsuccession, and an amendment would be needed to succeeds from Canada.
(ii)Federalism
1.
 Reference re Secession of Quebec
- In interpreting our Constitution, the courts have always beenconcerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has fromthe beginning been the lodestar by which the courts have been guided.a.Described federalism as a means of recognizing regional cultural diversity at the foundingof Canada, particularly w/ respect to the distinct nature of Quebec as predominantly a French-speaking society. Notesexperience of Canada East and Canada West had been bad under the Union Act (1840)- new Const structure enabledFrench-speaking Canadians to form numerical majority in Quebec .2.Hodge v. Queen (1883)- national and provincial legislatures were coordinate authorities withequal sovereign status derived from Const.
(iii)Democracy (Secession Reference)
1.The democracy principle can best be understood as a sort of baseline against which the framersof our Constitution, and subsequently, our elected representatives under it, have always operated. . . Democracy iscommonly understood as being a political system of majority rule. Democracy encompasses a number of values,including: respect for the inherent dignity of the human person, commitment to social justice and equality,accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and politicalinstitutions which enhance the participation of individuals and groups in society.
(iv)
Parliamentary Privileges
” - Houses of Parliament and the provincial legislative assemblies posses a setof powers and privileges that are “necessary to their capacity to function as legislative bodies
1.
 New Brunswick Broadcasting Co. v Nova Scotia (1993)
-
unwritten doctrine parliamentaryprivilege
should be included in the s52(2) definition even though no mention of it. -
“strangers”
wereexcluded from the Nova Scotia legislative assembly.
2.
Also includes freedom of speech in debate, including from legal proceedings for things said in debates.It also includes right of members of parliament or legislative assemblies not to testify in court proceedings while Parliament or the Legislature is in Session.
3.
Does not include all internal affairs of employees of House – chauffer of Speaker alleged that he’d been constructively discharged on grounds forbidden by Human Rights Act, SCC denied Parliament’s position that they were internal affairs of Parliament – SCC held didn’t fulfill test of necessity
4.
Powers authorized by parliamentary privilege are not subject to the Charter Rights.
 
5.The court’s decision means the definition can be expanded.
(v)Parliamentary sovereignity
1.
Babcock v. Canada [2002] – 
SC rejected challenge to S. 39 of Evidence Act, which allows fed govt towithhold cabinet docs from ct proceedings to which docs are relevant—even though rule of law,sepration of powers and independence of judiciary at stake – balanced against principle of  parliamentary sovereignity.
a.Secession Reference: With the adoption of the Charter, theCanadian system of govt was transformed to a significant extent from a system of Parliamnetary supremacy to one of constitutional supremacy.”
(vi)
Judicial independence
-
1.
Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (1997)
– SCC assertedthat there was an unwritten principle of judicial independence in Const that could have the effect of invalidating statutes that reduced judicial comp. but decides case under 11(d)a.even though independence explicitly guaranteed in s.99 of 1867 BNA, Ct held unwritten principle – required elaborate procedures be followed to remove a judge and even to set salaries
2
 
b.
Reasoning: Core characteristics of judicial independence include: security of tenure, financialsecurity and administrative independence. Independence necessary to maintain public confidencethat justice will be done in individual cases, and that rule of law will be maintained. relationship between the judiciary and other branches of government must be depoliticized – so courts both befree and appear to be free from political interference through economic manipulation by the other  branches of government.
c.
FACTS: A statute decreased provincial court justices’ salaries b/c of a provincial deficit.Concern that this eroded judicial independence guaranteed under s 11(1)(d) of Charter. Held-Judicial salaries can be reduced, so long as (1) economic manipulation occurs through anindependent body, combined with a judicial compensation commission (between the judiciary andother branches of government) that would depoliticize the process. (2) No negotiations on judicialremuneration b/w the judiciary and the executive/legislature. (3) Judicial salaries may not fall below a minimum level. Here, didn’t happen – so breach of section 11(d) of the Charter of Rights.As well as unwritten rule.
d.Conventions
i.
Rules of the constitution that are not enforced by the law courts. – although the existence of a convention has occasionally been recognized by the courts
1.
Why do people obey them if not law
? The breach of a convention would result in serious political repercussionsand eventual changes in law.
 2.Const. Convention – UK parliament would not amend BNA Act except at request of Canada
3.
 Patriation Reference (1981)-
SCC
was asked whether there was a convention requiring that the consent of the provinces be obtained before the federal government requested the United Kingdom to enact an amendment to theConsti of Canada (1982 Const Act and Canada Act). That would affect the provinces. The court was also askedwhether there was a legal requirement for provincial consent.
 
SC found the convention required a “substantialdegree” of provincial consent but it was not necessary to decide exactly what the requisite degree is. (later heldQuebec approval not necessary- Quebec Veto Reference 1982)
4.
 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 noconvention restricted the policy or substance of what could be enacted by the provincial Legislature in exercise inits power to make laws in relation to education.e.Usage
1.
A “usage”
is not a rule, but merely a governmental practice which is ordinarily followed, although it is not requiredas 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 appointmentof McLachlin in 2000. A “
usage”
may develop into a convention. The process of evolution from usage toconvention may be called a “
custom.”
 f.Main Conventions1.the governor general only acts on the advice of the Privy Council2.this Privy Council is not the full Council described in s13 of the Constitution Act 1867 but rather a smaller subset,the Cabinet3.the cabinet chosen by the Prime Minister, and the number of ministers is up to him/her 4.the primes minster, although no where mentioned in the Constitution Act 1867, is the head of government5.the prime minster and his/her cabinet must have the support of a majority of members in the house of commons6.the prime minster and his/her cabinet must have seats in the House of Commons or Senate7.House of Commons support for Prime Minsters and cabinets is rallied by means of Political parties and8.A failure to command and support of a majority of members in the House of Commons results in the governmentstepping down and usually the calling of a general election.g.Other Conventions1.The operation of Parliament and the legislatures generally, including political parties and at the national level, therelationship between the elected house of Commons and the appointed Senate2.The operation of the federal and provincial cabinets, minsters and civil services and the relationship among them3.Federalism generally, aside from the formal divisions or powers, including reservation and disallowance of federaland Provincial acts and the role the federally appointed lieutenant governor in provincial matters4.The role of judges and courts in the governmental process and the independence of judges and courts interference
3

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