1.

Notes - I. BASIC CONCEPTS

Saturday, March 31, 2018 6:36 PM

1. Sources and Nature of the Constitution

REFERENCE:
1.1. Hogg, chapter 1, “Sources”
1.1.1 DEFINITION
i. 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.
ii. A constitution has been described as a “mirror reflecting the national soul”
[ Cheffins and Tucker, The Contitutional Process in Canada (2nd ed. 1976)] - it must
recognize and protect the values of a nation;
iii. 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.
iv. In Canada, a federal state, the basic concern is the allocation of governmental
powers between the central (state) and regional (provincial);
v. “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 a society in which government officials must act in accordance with
the law. Judicial independence is needed. The rule of law applies to Parliament
and Legislatures of the Province. Laws in breach of the constitution may be
challenged in court.
vi. The rules of federalism are significant in Canada as they protect the cultural ,
linguistic and regional diversity of the nation.
vii. Civil liberties - part of the constitutional law, because civil liberties may be created
by the rules that limit exercise of governmental power over individuals
viii. Constitution Act, 1867
1) In Canada there is no single constitutional document like the US.
2) The British North America Act was renamed the Constitution Act,
1867, in 1982
3) Purpose of creating a Federation nation in Canada - BNA created a new
Dominion of Canada by uniting three colonies of British North America
and by providing the framework for the admission of all other British
North American colonies.
4) BNA act established the rules of federalism but did not break from its
colonial past.
5) Missing features of this act:
a) No amending clause in this act;
b) s9 vests authority over Canada by the Queen’s representative the
Governor General but the GG’s office is no where created in the
Act.
c) 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.
6) Established the rules of Federalism, but did not attempt to codify all constituti
onal-rules.
7) Left open possibility for constitutional conventions.-
8) There are several gaps in this Act, however
ix. Constitution Act, 1982
1) This Act did 3 main things (repairs) to Canada’s constitutional law:
(1) An amending formula was adopted;
(2) The authority over Canada of the UK (imperial) Parliament was
terminated;
(3) and the Charter of Rights was adopted-
2) Part 7 General
The Supremacy Clause is 52(1)-This makes it the supreme law of the country.
The Entrenchment clause- 52(3)- This entrenched the Constitutions Act 1982
and makes it only amendable by the prescribed procedure.
3) The phrase “Constitution of Canada” was used for the first time in this Act-
4) The definition of the Constitution of Canada “includes” 3 categories of instru
ments S52 ( 2):
(1) Canada Act 1982 (which includes the Constitution Act, 1982, under
schedule B);
(2) A list of 30 Acts and orders (including the Constitution Act, 1867) (includes
The Constitution Act 1867, its amendments, the orders in council and
statues admitting or creating new provinces and boundaries, and the
statue of Westminster (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) Amendments which may be made in the future to any of the
instruments in the first two categories.
The Charter of rights and Freedoms is part of the Constitution of Canada
because it is Part I of the Constitution Act, 1982-
5) 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 between a
union and an employer now superior to a statue.
6) “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 no mention of it. The
court’s decision means the definition can be expanded.
a) Hogg believes that it is best to leave the courts decisions to
unwritten doctrines and written doctrines as exhaustive.
b) The new schedule omits the pre 1867 instruments which
governed Ont and Qbe and The Royal Proclamation of 1763, the
Quebec Act 1774, the Constitutional Act of 1791 and the Union
Act of 1840.
7) The Supremacy Clause is 52(1)-This makes it the supreme law of the
country
8) The Entrenchment clause- 52(3)- This entrenched the Constitutions Act
1982 and makes it only amendable by the proscribed procedure.
9) Imperial statues- Hogg 1.5
x. Other unwritten principles underlie text of Const Act
1) 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 duty to enter
negotiations
2) Reference by the federal government to the Supreme Court of Canada, in
which the Court was asked whether Quebec could secede unilaterally from
Canada. Unilateral secession not possible -- Secession would require const’l
amendmt in accordance with its procedures (but did not specify which one
would apply).
3) 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 to Confederation to negotiate the required
constitl changes. SCC also pointed out that the political ramifications for
failure to negotiate in good faith would include the defaulting govt’s
legitimacy in the eyes of the international community would be
undermined. ...
4) 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 recognized eventually as a reality by
Canada’s own Constl Law.]
5) Clarity Act ( created after Succession Reference) Hogg 5.7(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 “the question 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 independent
state. “
a) Act states question is unclear if “mere focus to negotiate” or envisages
economic /political arrangement 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”.
c) 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. If HoC finds that no clear majority in favour of
secession, then Govt is prohibited by Act from enterin into negotiations
d) s3 – the Act recognizes that under the Constitution of Canada, there is
no right to unilateral succession, and an amendment would be needed
to succeeds from Canada.
6) Federalism
Reference re Secession of Quebec- In interpreting our Constitution, the courts
have always been concerned with the federalism principle, inherent in the
structure of our constitutional arrangements, which has from the beginning
been the lodestar by which the courts have been guided.
Described federalism as a means of recognizing regional cultural diversity at
the founding of Canada, particularly w/ respect to the distinct nature of
Quebec as predominantly a French-speaking society. Notes experience of
Canada East and Canada West had been bad under the Union Act (1840)- new
Const structure enabled French-speaking Canadians to form numerical
majority in Quebec .
Hodge v. Queen (1883)- national and provincial legislatures were coordinate
authorities with equal sovereign status derived from Const.
7) Democracy (Secession Reference)
The democracy principle can best be understood as a sort of baseline against
which the framers of our Constitution, and subsequently, our elected
representatives under it, have always operated. . . Democracy is commonly
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 political institutions which enhance the
participation of individuals and groups in society.
8) “Parliamentary Privileges” - see below 1.1.1. xii
9) Parliamentary sovereignity
Babcock v. Canada [2002] – SC rejected challenge to S. 39 of Evidence Act,
which allows fed govt to withhold cabinet docs from ct proceedings to which
docs are relevant—even though rule of law, separation of powers and
independence of judiciary at stake – balanced against principle of
parliamentary sovereignity.
Secession Reference: “With the adoption of the Charter, the Canadian system
of govt was transformed to a significant extent from a system of
Parliamnetary supremacy to one of constitutional supremacy.”
10) Judicial independence-
Ref re Independence and Impartiality of Judges of the Prov. Court of PEI
(1997) – SCC asserted that 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) of the Charter
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
Reasoning: Core characteristics of judicial independence include: security of
tenure, financial security and administrative independence. Independence
necessary to maintain public confidence that 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 be free and appear to be free from political interference through
economic manipulation by the other branches of government.
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 an independent body, combined
with a judicial compensation commission (between the judiciary and other
branches of government) that would depoliticize the process. (2) No
negotiations on judicial remuneration 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.

xi. Parliamentary privilege

1) 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.
2) Parliamentary Privileges- regarded as a branch of the common law as it
is not contained in any statute or other written instrument and it is the
courts who determine its existence and extent.
3) 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.
4) Parliamentary Privileges- 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.
5) The federal Houses of Parliament and the provincial legislative assemblies pos
sess a
set of powers and privileges that are necessary to their capacity to function as
legislative bodies; these powers and rights are known collectively as parliame
ntary privilege (e.g. freedom of speech in debate)-
6) See discussion in Canada v Vaid-
Does not include all internal affairs of employees of House – chauffeur 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
7) Powers authorized by parliamentary privilege are not subject to the Charter
Rights.
8) The court’s decision means the definition can be expanded.

9)Source = part of “Constitution of Canada (New Brunswick v Canada); but Hogg

criticizes this a bit
xii. Case law
1) Another important source of constitutional law (e.g. unwritten principles deve
loped in case law: see Rumeration of Judges; Secession Reference)-
2) SCC has carved out an active and creative role in interpreting the Constitution
. This raises the concern that the Court is trespassing into fields more
properly left to the legislative and executive branches of government
xiii. Royal prerogative
1) Consists of the powers and privileges accorded by the common law to the Cro
wn; it
is a branch of common law, because it is the decisions of the courts which hav
e determined its existence and extent
2) Case of Proclamations (1611). They are powers and privileges that are
unique to the Crown.
xiv. Conventions
1) Definition- Conventions are rules of the constitution that are not
enforced by the law courts. Because they are not enforced by the law
courts, they are best regarded as non-legal rules, but because they
regulate the working of the constitution, they are important. They
prescribe the way in which legal powers shall be exercised. Their
breach, however, does not give rise to legal remedies.Why do people obey
them if not law? The breach of a convention would result in serious political
repercussions and eventual changes in law.
2) 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 a
consideration 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
federal government requested the United Kingdom to enact an
amendment to the Consti of Canada. That would affect the provinces.
The court was also asked whether there was a legal requirement for
provincial consent.
3) 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 is
the 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 is as
unenforceable as a usage. There is a strong moral obligation to follow a
convention than a usage and departure from a convention will be
criticized more. Patriation Reference ( 1981)- Hogg 1.10(c) the court
found the convention required a “substantial degree” of provincial
consent but it was not necessary to decide exactly what the requisite
degree is.
4) C) Convention in Agreement- A convention can be established by all
relevant officials agreeing to adopt a certain rule of constitutional
conduct, then that rule may immediately come to be regarded as
obligatory and are usually written down by the officials in precise and
authoritative 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.)
5) D) Convention and Law –A convention could be transformed into law
by being enacted as a statue. A convention would also be transformed
into law if it is enforced by the courts. If a court did enforce a
convention (and admittedly no court has ever done so), the convention
would be transformed into a legal rule. Why do people obey them if
not law? The breach of a convention would result in serious political
repercussions and eventual changes in law. Conventions regulate the way
in which legal powers shall be exercised and bring outdated legal
powers into conformity with current notions 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
6) E) Convention and Policy- Public School Boards Assn v Alta. [2000} &
English Catholic Teachers Case v Ont [2001]- public school supported
argued that provincial educational statues violated a constitutional
convention. Held- in both cases that no convention restricted the policy
or substance of what could be enacted by the provincial Legislature in
exercise in its power to make laws in relation to education.
Conventions affected only the structure of government power, not the
polices to which government power was addressed.
7) Reference re Secession of Quebec, [1998] 2 S.C.R. 217 Constitutionality
of unilateral separation of Quebec Held- Quebec cannot secede 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.
8) 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 would come
under a legal duty to enter into negotiations to accomplish the
secessions. This illustrates the active and creative role that the modern
Supreme Court has carved out for itself.
9) Main Conventions I. II. III. IV. V. VI. VII. VIII.
I. the governor general only acts on the advice of the Privy Council
II. this Privy Council is not the full Council described in s13 of the
Constitution Act 1867 but rather a smaller subset, the Cabinet
III. 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 government
V. the prime minster and his/her cabinet must have the support of
a majority of members in the house of commons
VI. the prime minster and his/her cabinet must have seats in the
House of Commons or Senate
VII. House of Commons support for Prime Minsters and cabinets is
rallied by means of Political parties and
VIII. A failure to command and support of a majority of members in
the House of Commons results in the government stepping down
and usually the calling of a general election.
10) Other Conventions I. II. III. IV. V.
I. The exercise of prerogative powers by the crown
II. The operation of Parliament and the legislatures generally,
including political parties and at the national level, the
relationship between the elected house of Commons and the
appointed Senate
III. The operation of the federal and provincial cabinets, minsters and
civil services and the relationship among them
IV. Federalism generally, aside from the formal divisions or powers,
including reservation and disallowance of federal and Provincial
acts and the role the federally appointed lieutenant governor in
provincial matters
V. The role of judges and courts in the governmental process and
the independence of judges and courts interference by the
executive and legislative branches and
11) An important conventions case is the Patriation Reference
(see the discussion in the book)
1.2 Reference re Secession of Quebec, [1998] 2 S.C.R. 217
i. Reference re Secession of Quebec
ii. Background
1) This Reference requires consideration of complex legal and constitutional que
stions,
and it isn’t possible to answer the questions without having regard to a numb
er of underlying principles
2) The Constitution Act, 1982 is now in force. Although the Constitutional texts
have a primary place in determining constitutional rules, they are NOT
exhaustive. The Constitution also embraces UNWRITTEN rules
3) These supporting principles and rules, which include constitutional conventio
ns and
the workings of Parliament, are a necessary part of our Constitution because
problems
or situations may arise which are not expressly dealt with by the text of theCo
nstitution.
4) In order to endure over time, a constitution must contain a comprehensive se
t of rules and principles which are capable of providing an exhaustive legal fra
mework for
our system of government. Such principles and rules emerge from an underst
anding
of the constitutional text itself, the historical context, and previous judicial
interpretations of constitutional meaning.
5) There are FOUR fundamental and organizing principles of the Constitution
which are relevant to addressing the question before us (although this enume
ration is by no means exhaustive):
federalism; democracy; constitutionalism and the rule
of law; and respect for minorities
iii. Nature of principles
1) These principles inform and sustain the constitutional text; they are the vital
unstated assumptions upon which the text is based. The following discussion
addresses the four foundational constitutional principles that are most germa
ne for
resolution of this Reference: federalism, democracy, constitutionalism and th
e rule of law, and respect for minority rights. These defining principles functio
n in symbiosis.No single principle can be defined in isolation from the others,
nor does any one principle trump or exclude the operation of any other.
iv. Use of unwritten principles
1) The principles assist in the interpretation of the text and the delineation of s
pheres of jurisdiction, the scope of rights and obligations, and the role of ou
r political institutions. Equally important, observance of and respect for these
principles is essential to the ongoing profess of constitutional development an
d
evolution of our Constitution as a "living tree", to invoke the famous descripti
on in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136
2) The effect of the preamble to the Constitution Act, 1867
was to incorporate certain constitutional principles by reference
3) In the
Provincial Judges Reference, we determined that the preamble "invites the
courts to turn those principles into the premises of a constitutional argument t
hat culminates in the filling of gaps in the express terms
of the constitutional text"
4) Underlying constitutional principles may in certain circumstances give rise to
substantive legal obligations
(i.e they have "full legal force", as we described it in the Patriation Reference,
supra, at p. 845), which constitute substantive
limitations upon government action. These principles may give rise to very
abstract and general obligations, or they may be more specific and precise in
nature.
5) So, the principles are not merely descriptive, but are also invested with a
powerful normative force, and are binding upon both courts and
governments
6) In other words", as this Court confirmed in the
Manitoba Language RightsReference, "in the process of Constitutional adjudi
cation, the Courts may have
regard to unwritten postulates which form the very foundation of theConstitut
ion of Canada"
v. Principles:
1) Federalism
a) It is undisputed that Canada is a federal state.
In a federal system of government such as ours, political power is sha
red by two orders of government: the federal government on the one
hand, and the provinces on
the other. Each is assigned respective spheres of jurisdiction by the
Constitution Act, 1867.
In interpreting our Constitution, the courts have always
been concerned with the federalism principle, inherent in the structure
of our
constitutional arrangements, which has from the beginning been the lo
destar by which
the courts have been guided. This underlying principle of federalism, th
en, has
exercised a role of considerable importance in the interpretation of the
written provisions of our Constitution. In the Patriation Reference,
supra , at pp. 905-9, we
confirmed that the principle of federalism runs through the political an
d legal systems
of Canada. The principle of federalism recognizes the diversity of the
component parts of Confederation,
and the autonomy of provincial governments to
develop their societies within their respective spheres of jurisdiction;
The principle of federalism facilitates the pursuit of collective goals by
cultural and linguistic minorities which form the majority within a par
ticular
province. The federal structure adopted at Confederation enabled Fren
ch-speaking
Canadians to form a numerical majority in the province of Quebec, and
so exercise the considerable provincial powers conferred by the
Constitution Act, 1867 in such a way
as to promote their language and culture. It also made provision for cer
tain guaranteed representation within the federal Parliament itself
2) Democracy
a) The principle of democracy has always informed the design of our cons
titutional
structure, and continues to act as an essential interpretive consideratio
n to this day. The democracy principle can best be understood as a sort
of baseline against which
the framers of our Constitution, and subsequently, our elected represe
ntatives under
it, have always operated. It is perhaps for this reason that the principle
was not explicitly identified in the text of the Constitution Act, 1867
itself;
Democracy is commonly understood as being a political system of ma
jority
rule. Democracy encompasses a number of values, including: respect f
or
the inherent dignity of the human person, commitment to social justi
ce and
equality, accommodation of a wide variety of beliefs, respect for cult
ural and
group identity, and faith in social and political institutions which enha
nce the participation of individuals and groups in society.
In institutional terms, democracy means that each of the provincial
legislatures and the federal Parliament is elected by popular franchise
.
In individual terms, the right to vote in elections to the House of Com
mons and the provincial legislatures, and to be candidates in those
elections, is guaranteed to "Every citizen of Canada" by virtue of s. 3 o
f the Charter.
b) The relationship between democracy and federalism
means, for example,
that in Canada there may be different and equally legitimate majorities
in different
provinces and territories and at the federal level. No one majority is mo
re or less"legitimate" than the others as an expression of democratic o
pinion, although, of course, the consequences will vary with the subject
matter
c) Democracy in any real sense of the word cannot exist without the
rule of law. It is
the law that creates the framework within which the "sovereign will" is
to be
ascertained and implemented. To be accorded legitimacy, democratic i
nstitutions must rest, ultimately, on a legal foundation
3) Constitutionalism and the Rule of Law
a) The 'rule of law' is a highly textured expression, importing many things
which are
beyond the need of these reasons to explore but conveying, for exampl
e, a sense of orderliness, of subjection to known legal rules and of exec
utive accountability to legal authority".
b) At its most basic level, the rule of law vouch safes to the citizens and
residents of the country a stable, predictable and ordered society in
which to
conduct their affairs. It provides a shield for individuals from arbitrary
state action
c) 3 Elements of Rule of Law: i) One law for all; ii) there is an actual order
of positive
laws that preserves and embodies the normative order; iii) the relation
ship b/w the
state and the individual must be regulated through a series of legal rule
s.
d) Importance of Rule of Law cannot be overemphasized; this principle i
s the
key to understanding the legal framework of the State. This is the
fundamental principle of legality; the ultimate foundation of the
Constitution.
e) Const’ism is simply that the gov’t must comply with the Constitution
4) Protection of Minorities
a) There are a number of specific constitutional provisions protecting min
ority
language, religion and education rights. Undoubtedly, the three other c
onstitutional
principles inform the scope and operation of the specific provisions tha
t protect the
rights of minorities. The concern of our courts and governments to prot
ect minorities
has been prominent in recent years, particularly following the enactme
nt of the
Charter . Undoubtedly, one of the key considerations motivating the en
actment of the
Charter, and the process of constitutional judicial review that it entails,
is the protection of minorities.
b) COMMENT:
These principles are: not exhaustive (complete, thorough); must be
taken together; no single principle trumps another

○ Reference re Secession of Quebec , [1998] 2 S.C.R. 217

2. Amending Procedures
REFERENCE:
○ Constitution Act, 1982 , Part V , ss.38-49
○ Hogg, chapter 4, “Amendment”, and
○ chapter 5.7, “Secession” - re Secession of Quebec , [1998] 2 S.C.R. 217
a. Part V of the Consti Act 1982 is headed “Procedure for Amending Constitution of
Canada.” It provides 5 different amending procedures.
i. 1. A general amending procedure (s38) for amendments not otherwise provided
for(as well as for amendments listed in s42-proportionate representation,
selection of Senate, SC of Canada, establishment of new provinces)requiring the
assents of the federal Parliament and 2/3 of the provinces representing 50
per cent of the population;
1) s38 “General” aka “7/50 Rule” – requires resolutions to be passed by:
Senate + HofC + 7 of the 10 Provinces which have in total at least
50% of the population.
a) Use for: residual, when other procedures do not apply as well as
those listed in s42.
b) REFER TO LIMITATIONS - NB no single prov has constitutionally
entrenched veto-
i) 39(1): must wait 1 year to proclaim (unless all have
consented/dissented) (allows time to consider)
ii) 39(2): expires in 3 years if required consent not achieved
c) Opting out: 38(3) applies to “any amendt that derogates from the
legislative powers, proprietary rights or any other rights or
privileges of the legislature or government of a province”
i) prov can pass resolution of dissent = amendt will not take
effect in that province
ii) Must be done prior to proclamation
iii) 38(4): resolution of dissent can be revoked at any time, but
46(2): resolution of assent cannot be revoked after
proclamation
iv) s40 compensates provs for opting out, for any transfer of
Provl legislative powers to Fedl govt (in relation to
education or cultural matters only). - otherwise wd be
powerful incentive not to opt out, b/c opting out wd involve
bearing substantial expense from which other provincial govt’s
would be freed by amendment (e.g. transferring legis authority
over universities from provinces to parliament)

ii. 2. A Unanimity procedure (s41), for five defined kinds of amendments,

requiring the assents of the federal Parliament and all of the provinces,
1) S41 “Unanimity Rule” – used for matters of national significance which
should not be altered over the objection of even one province. NB s39
time limits do not apply.
2) Office of Queen, representation in parliament-“Senate floor” entrenches
right of least populous provinces to min representation in HoC, use of English
or French- subject to S.43, composition of SC, amendment to amending
procedures themselves
3) But re: SC, the composition of SC is dictated by Supreme Court Act, which is
not part of Const, so this is ineffective

iii. 3. A some but not all provinces procedure(s43), for amendment of provisions
and only those provinces affected;
1) S43 “Some but not all” Provision – used for language usage within a
province, altering provl bopundaries. Note: protection of minorities is
afforded by the fact that it also requires resolutions of the Senate and
HofC (ie Fedl level approval) as well as the affected provinces Hogan v
Newfdlnd (2000).
iv. 4. The federal Parliament alone (s44) has power to amend provisions relating
to the federal executive and House of Parliament ;and
1) s44. The Unilateral Federal Formula and covers amendments to the
“Constitution of Canada” in relation to the federal executive, or Senate
and the House of Commons- provided that the amendments do not fall
within the category of amendments caught by the General and
Unanimity Formula.
v. 5. Each Provincial Legislature alone (s45) has power to amend “the constitution
of the province”.
1) S45 Provl Legisl Alone – laws amending constitution of prov (ie those
that bear “on the operation of an organ of govt of the province” SCC).
Note does not include: Constl guarantee of language rights (per SCC in
AG Quebec v Blaikie, now explicit in s45). Also: OPSEU v Ontario [1987]:
Profound constitl upheaval by the introduction of political institutions
foreign to and incompatible with the Canadian System.

b. Limitations
i. Must wait 1 year to proclaim (unless all have consented/dissented) (allows time to
consider) 39(1)
ii. Expires in 3 years if required consent not achieved 39(2)
iii. Regional Veto Statute (not constitutional, 1996): no amendt can be proposed by
“Minister of the Crown” and authorized unless it has first been considered by a
majority of the provinces that includes: Ont, Que, BC, 2+ Atlantic Provs rep
min 50% pop, 2+ Prairie Provs rep min 50% pop. Applies to amendments
that: do not allow for opting out, and must otherwise follow the general
7/50 procedure. Does not apply to : s41(unanimity) or s43 (some but not all)
amendments.
1) A non-minister can propose a resolution, but not likely to pass w/o minister
support
c. Future attempted amendments
1) French Canadian Nationalism: 1982 amendments reduced power of Que
Natl Assembly, Que was only prov that did not agree with them. Meech
Lake Accord 1987 – to appease Que, but fell short of ratification by 2
provs. Charlottetown Accord 1992 rejected in National Referendum.
Quebec then held 2nd ref 1995. Defeated by only 49.4% – 50.6%.
2) Western Regionalism: Bulk of Canada’s pop is in Que + On. So Fedl
policies favour manuf industry and consumers of central Can. West
relies on prod of wood, oil, gas, metals. Response: 1. to increase Provl
govt power which the West can more easily control and decr Fedl
power (per 1982 amendments), and 2. Make central institutions more
responsive to regional concerns.
3) Aboriginbal Peoples Demands: entrenchment of traditional rights. S35:
guarantees existing aboriginal and treaty rights. S37 commits to further
discussions. They also seek: entrenchment of explicit right t self govt,
and to participate in constl amendmt process where aboriginal rights
may be affected.(Charlottetown Accord would have done so but was
defeated).
4) Entrenchment of Charter Rights: note override provision was inserted to
obtain agreement. Note also Quebec never agreed with the Charter yet
still legally binding on the province.
5) Division of Powers: Reducing Fedl and incr Provl power easiest way to
address French Candian and Western Canadian grievances. 1982
amendmts incr provl power over natural resources. On the other hand:
Enlargement of certain Fedl powers may facilitate effective national
economic policies, Fedl power is lacking or only avail in emergencies
with respect to: foreign ownership, securities regulation, wage and price
controls. Another issue is extent to which Provs differ in size and
wealth. Changes in division of powers very diffic to achieve.
6) Central Institutions: “Intrastate Federalism” = constl change though
better representation so Fedl power can be increased. “Interstate
Federalism”= decentralisation of powers. Suggestion: have triple E Senate
(ie equal no. of reps from each prov). Within SCC would require Provl
role in appointing judges.
7) Criticism of amending procedures: Problematic to retain agreement
throughout 1 yr ratification period. Proposals lapse in3 year period, or
are defeated by changes in govt during that time – too long.
Agreement bw Ministers turns into bargaining rather than rue
assessment on merits of proposal..
8) Secession: It has not been stated by the judiciary or by statute but no
provision in the Const allows for secession –unilateral secession not
possible. Re Secession of Quebec [1998]: Court asked whether Quebec
could secede unilaterally. Secession cannot be undertaken in defiance of
terms of the Constitution. So secession would require const’l amendmt
in accordance with its procedures (but did not specify which one would
apply). Note 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 to
Confederation to negotiate the required constitl changes. SCC also
pointed out that the political ramifications for failure to negotiate in
good faith would include the defaulting govt’s legitimacy in the eyes of
the international community would be undermined. ... Principle of
Effectiveness: If seceding govt achieved effective control of a territory
and recognition by international commty the secession although
unconstitutional would have to be recognized eventually as a reality by
Canada’s own Constl Law.
i. Which amending procedure would apply to secession? Unclear. But not: 43,
44, o 45.
ii. Perhaps 38: covers those amendments not covered by the other procedures.
Or 41: most onerous

3. Federalism
REFERENCE:
○ Constitution Act, 1867 , ss.91-95
○ Constitution Act, 1982, s.52
○ Hogg, chapter 5, “Federalism”
a. Federalism (Hogg 5.1)- Unitary vs. Federal state
i. Canada is a federal state, like the US and Australia
ii. Unitary state government power is vested in one national authority - powers given
to municipal governments are granted by a national authority and can be taken
away, altered or controlled at any time by the national legislature. (Montreal-to
Quebec).
iii. Government power is distributed between the central power (or national / federal
authority) and several regional (provincial or state) authorities so that every
individual in the state is subject to the laws of two authorities (central and regional)
iv. Powers tend to shift back and forth over time from national power to
regional powers.
v. metaphor often described as “higher level” of power ( federal) with
“coordinate” level of power. Does not mean they are legally subordinate.
vi. Whether a state is still truly “federal” depends on whether there is still “an
area of guaranteed autonomy for each unit of the system
vii. Federal Principle defined- KC Where defined it as “the method of dividing
powers so that the general and regional governments are each, within a
sphere co-ordinate and independent” - This has been criticized .
viii. Other writers define it emphasizing “interdependence”
ix. Differences between Unitary-federal- between and government practices
between federal states(like Canada) and “unitary” states (‘UK, New Zealand)
Distinctive issues concerning the distribution of power, the distribution of
executive power and the administration of justice that have to be resolved in
federal states but non-existent in the unitary state.
1) Hodge v. Queen (1883)- national and provincial legislatures were coordinate
authorities with equal sovereign status derived from Const.
2) Both sections use terminology giving legislative authority in relation to
“matters” coming with ‘classes of subjects”.
3) s91- federal Parliament
a) To provide collective benefits of economic union and greater financial
strength and increase defence. As a reset the BNA act 1867 gave
federal Parliament authority over customs and excise, interprovincial
and international trade and commerce, banking and currency, all
forms of taxation and national defence. Authority over criminal law,
penitentiaries, marriage and divorce
4) s92- - provincial Legislatures.
a) BNA Act 1867 gave provincial legislatures authority over property,
common civil rights, common courts, police, municipal bodies,
hospitals and education
b. Confederation (Hogg 5.1 b.)
i. Canada is often described as a “confederation” and the process of union
which culminated in 1867 is often described as “confederation”
ii. Technically it means that the government is the delegate of the states or
provinces; its powers are delegated to it by the states or provinces, who
retain the right to resume to the delegated powers if they wish.
iii. Legislative Union : the closest possible union is a “legislative union.”- in which
united states or provinces form a new unitary state which incorporates the
former units and subjects them to the authority of a single central legislature.
iv. Special Status: special status is the term which has been applied to proposals
for constitutional change under which one province ( most likely Quebec)
would possess larger powers than the other provinces.
1) Quebec has opted out of some national shared cost programs but these
arrangements do not give them any special constitutional power.
2) In 1995 House of Commons- passes a resolution declaring that the
house recognize Quebec as a “distinct society” and would be guided “by
this reality.”
v. Dominion and Provinces: need to be able to describe three things in a federal
state
1) 1. the regional authorities ( this is rarely a problem-regions are known
as provinces)
2) 2. the central authorities (It’s difficult to find a description for the
central authority-the use of the word Dominion has issues and the use
of the word Canada causes ambiguities.
3) 3. the nation as a whole
vi. Regions: The term “region” has no precise meaning.
c. Reasons for Federalism
i. the genesis of the federal system in Canada was political compromise
between proponents of unity and proponents of diversity.
ii. advantages of efficiency and accountability in dividing powers of government
for countries with large land mass.
iii. provinces or states are more homogeneous then the nation as a whole will
sometime adopt policies that are too innovative or radical to be accepted .
This way new legislative programs can be tested. If the program does not
work, then the whole nation as a whole has not been harmed.
iv. another advantage of federalism is that is that the system operates to
preclude an excessive concentration of power and thus as a check against
tyranny.
d. Federalism in Canada
i. The Terms of the Constitution - Indications that the framers planned a strong
central government. The Act gives the provinces only enumerated powers to
make laws giving the residue of power to the federal Parliament.
e. Federalist History (differences with US and Austrsalia)
i. BNA 1867 - Indications that the framers planned a strong central government. The
Act gives the provinces only enumerated powers to make laws giving the residue of
power to the federal Parliament.
1) the provinces were actually made subordinate to the centre, in violation
to the principle that a federal state regions should be coordinate with
a) s90 allows the federal government to disallow provincial statues
(power has not been exercised since 1943)
i) the federal power to disallow provincial statues was
frequent in the early years of confederation.
ii) this power has not been exercised since 1943
b) by s58 the federal government was given the power to appoint the Lt
Governor of each province
i) federal power to appoint a Lt Govnor is another breach of
the federal principle.
ii) regularly exercised by federal government
iii) once appoint made then the Lt Govnor is in no sense the
agent of the federal government.
iv) he/she is obliged by conventions of responsible government
to act
v) The Lt governor does have power under s90 –to withhold
the royal assent from a bill enacted by the provincial
legislative assembly
c) by s96 the federal government was given the power to appoint judges
of the superior, district and county courts of each province. (Hogg
5.3(g))
i) s96 of the Constitution Act 1867- gives the federal power
to appoint the judges of the higher provincial courts is
exercised by federal cabinets whenever a superior, district or
county court judgeship has to be filled.
d) by s91(29) and 92(10)(c) Declaratory Power
i) the federal parliament was given the power unilaterally to bring
local works within exclusive federal legislative jurisdiction simply
by declaring them to be “for the general advantage of Canada” -
ii) used for railways and sparingly in recent years.
iii) Was going to be amended in Charlottetown Accord but
since it was defeated it remains unilateral power.
e) s93 of the Constitution Act 1867-
i) gives the federal power to enact remedial laws to correct
provincial incursions on minority educational right-
ii) has never been exercised and the practice has become obsolete.
ii. Judicial Interpretation of the distribution of powers
1) two figures dominated the course of decisions in Canadian constitutional
cases : Lord Watson 1880-1899 and Lord Haldane 1911-1928. - both believed
strongly in provincial rights and established precedents that elevate the
provinces to coordinate status with the Dominion.
2) They gave a narrow interpretation to the principle federal powers ( the
residual power and the trade and commerce power and wide interpretation
to the provincial powers
iii. Federal-provincial financial arrangements
1) since the second world war there has been a substantial shift in power
back to the provinces
2) the present federal provincial financial arrangements give the Canadian
provinces more financial autonomy than enjoyed in the US or Australia.

4. Judicial Review and Principles of Interpretation

REFERENCE:
○ Constitution Act, 1982 , s 52
○ Hogg, chapter 15, “Judicial Review on Federal Grounds”
○ R v Morgentaler, [1993] 3 SCR 463
○ Canadian W estern Bank v Alberta, 2007 SCC 22, [2007] 2 SCR 3
○ Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39, [2010]
2 SCR 536
a. Judicial Review
i. Supremacy of the Constitution (Hogg 5.4 )
1) s52(1) Constitution Act 1982 expressly affirms the supremacy over all
other laws of the Constitution of Canada.
2) The Constitution must be “supreme” or binding on and unalterable by,
each of the central and regional authorities.
3) If either could change it unilaterally, the supreme authority would lie
with in the authority having the power to change the constitution.
entrenched- means that the constitution can be amended but it requires
a more difficult process
4) Supremacy Clause- s52(1) is the current basis of judicial review in Canada.
a) s52 Consti Act 1982-any law contrary to provision of the “Constitution
of Canada” is “of no force effect”
b) Judicial independence- Elemental constitutional doctrine, closely tied
to the separation of powers- ensures that judges, as arbiters of
disputes, are “at a complete liberty to decide individual cases on their
merits without interference” (SCC, Mackin v. New Brunswick).
Federalism requires an impartial arbiter to settle jurisdictional disputes
between the federal and provincial orders of government. –
Remuneration Reference (1997)
c) Administrative Law Jurisdiction- supervisory jurisdiction with respect to
exercises of executive government authority. Judicial review of exec
power is “hallmark” of s. 96 jurix. (Admin-Crevier)
b. Limitations of judicial review
i. Justiciability: the idea of a sense of lack of fitness of submitting questions to a
judicial or quasi judicial determination.
1) Operation Dismantle v The Queen (1985) Americans testing cruise missiles in
Canada, s.7 challenge- cruise missile increases the risk of nuclear war. Court
held it was ok to consider- no doctrine of political questions in Canadian
constitutional law. If what we are being asked to do is to decide whether any
particular act of the executive violates the rights of the citizens, then it is not
only appropriate that we answer the question; it is our obligation under the
charter to do so, but causal link between the actions of the Canadian
government, and the alleged violation of the appellants’ rights under the
Charter is simply too uncertain, speculative and hypothetical to sustain a
cause of action
ii. Enforcement: Cts normally have to rely on the executive and legislative branches of
government for the enforcement of their decisions.
1) In Doucet Boudreau v NS, the issue of court usurping executive function arose
(where the court ordered the government of Nova Scotia to use its best
efforts to build a French Language school to comply with its duties under the
Charter (minority language rights). Periodic reports on its progress was also
ordered [How close is this to the judiciary usurping the role of the executive?]
2) Reference re Language Rights Under s 23 of Manitoba Act, 1870 (SC, 1985):
But In 1890 , the Manitoba Legislature enacted the Official languages Act
which provided English Language only” in records and journals of the
Legislature and in the pleadings and process in the Manitoba courts. Courts
held that Manitoba’s Official Languages Act was unconstitutional 4 times-
but legislature didn’t respond. Re Manitoba Language Rights (1985) SCC
confirmed that the failure to comply with s 23 requirement resulted in the
invalidity of the purported statue. To conform with rule of law, Court decided
on a drastic remedy – namely allowing the invalid acts to remain law until
statutes were translated. The constitution will not suffer a province without
laws- avoiding a legal vacuum in Manitoba and ensuring the continuity of the
rule of law
c. Steps
i. First function of JR is to enforce the disruption of powers (rules of federalism)
1) The courts often have to determine whether a particular statue comes
within the powers the powers conferred by the constitution on the
legislative body enacted the statue- if the statue is judicially determined
to be outside the powers conferred upon an enacting body, then the
statue is ultra vires and invalid.
2) First step - identify the matter (pith and substance or “characterization”) of
the challenged law
3) Second step is to assign matter to one of the “classes of subjects”.
ii. Second function of judicial review is to enforce the Charter restrictions and the other
non federal restrictions.
1) Courts have to decide if a statue violates a constitutional prohibition- ie
by justifiably abridging freedom of expression-if it does, then it is ultra
vires.
2) Charter- one identifies the “purpose” and “effect” of an impugned statue
infringes charter right.)
iii. Policy making- judges not suited for this, their mandate is to make decisions
differs from that of other public officials in that judges are not accountable to
any electorate or to any government for their decisions.
1) judges have no power to initiate inquires or research, no staff of
investigative researchers and no power to enact a law in substitution
for one declared invalid.
2) often judges may have to make decisions which depend on “a
judgement or intuition more subtle than any article major premise.
3) JR permits or requires non elected judges to make a decision of great
political significance.
d. Alternatives to Judicial Review Hogg 5.5(c)
i. proposals to make tribunals of lawyers and non lawyers so that different
interests could be represented
ii. another proposal is to divide the SCC into specialized divisions-a common law
division, a civil law division, and a constitutionally law division-each division
designed to ensure maximum expertise.
iii. there is much to be said in favour of the present system of judicial review by
a court of general appellant jurisdiction

e. Presumption of constitutionality- In choosing between competing, plausible

characterization of a law, the court should normally choose one that would support
validity. (Only for federalism, not charter cases.)
i. Rational basis - Where the validity of a law requires a finding of fact ( finding of
emergency) the finding of fact need not be proved strictly by the government. It is
enough that there be a “rational basis” for the finding.
ii. Reading down
1) Where a law is open to both narrow and wide interpretation and under the
wide interpretation the law’s application would extend beyond powers of the
enacting legislative body, the court should read down the law so as to confine
it those applications that are within the power of the enacting legislative
body.
2) General language of the statue which is literally extending beyond provincial
or legislative power will be construed more narrowly so as to keep it within
the permissible scope of power.
iii. Severance
1) Rule- severance is inappropriate when the remaining good part “ is so
inextricably bound up with the part declared invalid that what remains cannot
independently survive.”A-G Alta v A-G Can [1947]
a) Hogg: usually one legislative plan of which all parts are interdependent,
so presumption against severance
b) Toronto v York [1938] If two parts can exist independently then it is
plausible to regard them as two different laws.
2) Charter- severance is more common in Charter cases. The same test is applied
but it is unlikely that the entire statue is struck down on Charter rights. Only
one case where entire statue was struck down- R v Big M Drug Mart (1985)
iv. Progressive interpretation- Canada didn’t go for originalism
1) Same Sex Marriage reference (2004). The SCC emphasized the “living tree”
quality of the Constitution.
2) Also purposive interpretation – e.g. R v Van der Peet (1996): defining
aboriginal rights.

f. Interjurisdictional Immunity/Reading down-

i. Limitation on the power of the provincial legislatures to enact laws that extend into
core areas of exclusive federal jurisdiction- Inapplicable (not inoperative, which is
paramountcy)
1) Difficult to distinguish pith and substance (which allows provincial matter to
affect federal matter) from when interjuris immunity should apply (and
statute read down)
ii. Federally-incorporated companies- a valid provincial law may not impair the status
or essential powers of a federally incorporated company. John Deere Plow Co v
Wharton [1915]
iii. Federally regulated undertakings-undertakings engaged in interprovincial or
international transportation or communication , which come under federal
jurisdiction under the exception to s92(10) are immune from otherwise valid
provincial laws which would have “sterilizing” the undertakings
1) Vital part test outdated- Commission du Salaire Minimum v. Bell [1966] – Bell
was interprovincial and was immune from provincial min wage law b/c law
affected “vital part” of mgmt and operation.
a) Bell Canada v. Quebec [1988] – bound by Quebec law that required
protective reassignment of pregnant workers? Even though law
requiring reassignment of small no. of workers could not impair
operations of undertaking, regulation of labour relations affect vita
part of mgmt and operation of firm and no concurrent provincial jurix
2) New impairment test: Provincial laws may validly extend to federal subjects
unless laws “bear upon the those subjects in what makes them specifically of
federal jurisdiction.”
a) Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3 If, the provincial
law did not impair core competence of Parliament, or if a “vital or
essential part of an undertaking” would be impaired” the pith and
substance doctrine stipulated that the provincial law validity applied to
the federal subject.
i) If alberta’s insurance act could apply to banks- promotion of
insurance by banks was too far removed from core of banking to
qualify as a vital part of the banking undertaking
ii) If provincial law just affected provincial law, no immunity
applied – pith and substance doctrine would prevail enabling
provincial law to apply to core of federal subject

g. The Power to Succeed Hogg 5.7

i. no reason why in principle why a federal government should not give a power of
succession to its provinces.
ii. The Succession Reference 1998 was a reference by the federal government to the
Supreme Court of Canada, in which the Court was asked whether Quebec could
secede unilaterally from Canada.
iii. 3 Questions put to the Court:
1) 1) What was the position of the under the Consti. of Canada to which the
court replied that unilateral secession was not permitted?
2) 2) What was the position under international law, to which the court gave the
same answer?
3) 3) Asked-what was the position if the Constitution of Canada and
international law were in conflict-they did not have an answer?
iv. court coined the term “effectivity”- when a defacto succession takes place without
the required agreement or the required amendment. Such a succession would be
unconstitutional. In this case, the constitutional law of Canada would eventually
have to recognize this reality.
h. Clarity Act ( created after Succession Reference) Hogg 5.7(a)
– so that the political actors, not the courts to determine whether a referendum had
created a clear majority on a clear question.
i. s1 Clarity Act –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 , HOC depends on “the question 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 independent state. Act states
question is unclear if “mere focus to negotiate” or envisages economic /political
arrangement with Canada that obscures a direct expression of the will of the
population of that province...
ii. s 2 – if question is clear, the Hof C has to determine if the majority is “clear”. The act
does not define “clear”.
iii. s3 – the CA recognizes that under the Constitution of Canada, there is no right to
unilateral succession, and an amendment would be needed to succeeds from
Canada.
iv. Succession Act and Clarity act – make it clear that a Constitutional amendment is
needed for a succession of a province and set useful rules for consulting Quebec and
for the initiation of negotiations leading to the required constitutional amendment
However, - they acknowledge that Canada is divisible, and a clearly expressed will to
succeed would have to be respected by the rest of the country.
v. Amendment procedures- not clear which of the five amendment procedures would
be the best type. A province cannot rely on s45 amendment procedure. A succession
amendment could not be by the federal government alone under s44 or by the
“some-but-not all provinces’ of s43.
vi. succession amending procedure- Question is could it be done under the general
amending procedures of s38 (7-50 formula) or whether it can be done by the
unanimity procedure of s41. unilateral succession would be illegal and could be
considered a revolution. Questions of legitimacy would arise and questions of
continuation or existence of a legal system would apply to.
vii. Co-operative federalism- the essence of this is its a network of relationships
between the executives of the central and regional governments. Demands of
interdependence of governmental policies, equalization of regional disparities and
constitutional adaptation produce co-operative federalism
viii. Eliza’s- The powers of the Provl Legislatures are not granted by Parlt and cannot be
taken, altered, or controlled by Parlt.
1) Provs not legally subordinate to Fedl Govt but if conflict bw Fedl law and Provl
law, Fedl Law prevails.
2) With the growth of Central Power the question whether a state is truly still
“federal” depends upon: whether there is still “an area of guaranteed
autonomy for each unit of the system”.
3) The “Federal Principle”: Dividing powers so that the general and regional
govts are each within a sphere coordinate and independent.
4) Senate: equally drawn from regions: Quebec, Ontario, Western Provinces,
Maritimes
a) 24 Senators each Newfld
b) 6 Senators Yukon, NW Territories, Nunavut
c) 1 Senator each
ix. SCC : also by region – 3 of the 9 judges from Quebec, 3 from Ontario, 2 from the four
Western provs and 1 from the four Atlantic provs
x. Regional Veto statue- incorporates regions into the 7-50 formula ( ordinary statue
not a constitutional amendment). It prevents an minister of the crown introducing
any resolution authorizing An Amendments in the the house of commons without
prior consent of the legislatures of: a) Ontario b) Qube c) BC d) 2 or more of the
Atlantic provinces( min 50% of the population) e) two or more of the parie provinces
with(min 50% of the population)
xi. Hogg- the regional veto statue gives indirect vetos to the four most populous
provinces to BC, ONT, QUE and BC and this compromises the equality of the
provinces envisioned in the 7-50 formula.
xii. Subsidiarity- a principle of social organizing where decision affecting individuals
should as far as possible be made by the level of government made closest to them.
xiii. Hogg- a primary goal of confederation was to preserve considerable autonomy for
the four original provinces. As a result , BNA Act 1867 gave provincial legislatures
authority over property, common civil rights, common courts, police, municipal
bodies, hospitals and education = subsidiarity principle
1) Another goal of confederation was to provide collective benefits of economic
union and greater financial strength and increase defence. As a reset the BNA
act 1867 gave federal Parliament authority over customs and excise,
interprovincial and international trade and commerce, banking and currency,
all forms of taxation and national defence. All consistent with subsidarity
principle.
2) (Not consistent with subsidarity principle)- authority over criminal law,
penitentiaries, marriage and divorce
3) Laws that impact people the most directly are mostly provincial.