Constitutional Law

CLN4U

Constitution

A legal framework or guideline that:

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)

Canadas Constitution

Canadas governing principles are

based on the British model

the governing principles are not codified

in a single document, but in
constitutional documents, conventions,
and common law

Constitutional Documents

Establish the structure of govt,

division of powers, and rights of
individuals

The BNA Act (passed by British

parliament in 1867)

Amended by British Parliament several times

after (all subsequent bills are also
considered constitutional documents)

Problem?

Constitutional Documents

Eventually, we wanted to be able to

change our constitution without
involving a foreign government

i.e. come up with an amending

formula
Lots of disagreement on how to do this

whose approval is needed?

Provinces? Aboriginals?

simple majority vs. unanimous?

Constitutional Documents

In the absence of any consensus on the

amending formula, the federal govt
attempted to patriate the constitution
without provincial consent

Provinces take feds to court

Supreme Court rules its 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

The renamed Constitution Act, 1982

Canadian Charter of Rights and Freedoms is

embedded within it

Other acts include

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
Canadas colonial status)

Conventions

Unwritten rules followed due to

tradition; provide details of how out
govt operates

Constitutional documents dicate how

the govt is set up, conventions are how
its run
For example, no constitutional
document states that Canada has to be
a democracy

Common Law

*A system of legal principles based on

customs and past legal decisions
* Laws based from Britain
Addresses constitutional disputes and
establishes precedents

AKA Case Law

Constitutional documents can be very vague;
courts interpret and clarify them, establishing
precedents, which can be modified/adapted
over time

Questions
1. What are the 3 components of Canadas
Constitution?
Constitutional documents, conventions,
common law

Questions
2. Whats the purpose of the BNA Act? How did the lack of
an amending formula pose a problem for the development
of the constitution?
BNA Act:
Purpose: establish Canada as a nation

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

Suggest 3 advantages and 3

disadvantages of having a
constitution based on unwritten
conventions and common law

Questions

Disadvantages:

Conventions arent formally written into the constitution

and rely on past practice for enforcement (no guarantees
that theyll 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:

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
cant possibly address every situation)
Not as formalized as amendments and clauses easier to
change

BONUS

How many judges from the Supreme Court

of Canada are from Quebec?
3
Ontario?
3
Western Provinces?
2
Atlantic?
1