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Unit 4 Slides The Constitution and The Federal System

The document outlines the main components of Canada's constitution, including its federal system, distribution of powers, and the Charter of Rights and Freedoms. It discusses the principles of responsible government, rule of law, and the processes for constitutional amendments. Additionally, it highlights the complexities of federal and provincial powers and the ongoing debates surrounding funding and rights.

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8 views23 pages

Unit 4 Slides The Constitution and The Federal System

The document outlines the main components of Canada's constitution, including its federal system, distribution of powers, and the Charter of Rights and Freedoms. It discusses the principles of responsible government, rule of law, and the processes for constitutional amendments. Additionally, it highlights the complexities of federal and provincial powers and the ongoing debates surrounding funding and rights.

Uploaded by

limitlessxmarketing
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Unit 4 The Constitution and the

Federal System
LIBS1360 Political Science
Winter 2020
Unit Outcomes
1. Describe the main components of Canada’s constitution
2. Explain why a federal system of government was chosen for
Canada
3. Outline the basic distribution of powers between the federal
and provincial governments
4. Describe the rights and freedoms protected by the Charter of
Rights and Freedoms
5. Discuss the reasonable limits and notwithstanding clauses in
the Constitution Act, 1982
Constitution

A body of fundamental rules,


written and unwritten, under
which governments operate.
• Outlines key institutions of
government organization
The Constitutional Framework

Formal rules of the


political game

Key ideas used to organize


the game of politics
What Does a Constitution Do?
• Fundamental law of a community
• Manages power and conflict
• Two sets of relations:
1. Citizens and the State
2. Distribution of functions and powers
• Empowers the state to do certain things
• Empowers citizens by conferring entitlements
Six Basic Principles of the Canadian Constitution

1. Responsible government
2. Federalism
3. Judicial review
4. Constitutional Monarchy (cf. Magna Carta of
1215)
5. Rule of law
6. Democracy (representative government)
Constitutional Principles

• Fundamental state law set


Written down in one or more
documents

• Custom and convention


Unwritten (not enforceable by courts)
Individual and Collective Rights

Individual rights
• Individual claims against the state

Collective rights
• Entitlements or duties owed to certain
groups by the state
• e.g. language rights, religious rights
Rule of Law
• Guarantees the actions of the state will
be fair
– All subject to the law, none above the law
– Impartial
• Protection from abuse of power
• Courts – guardians of rule of law
Rule of Law (Magna Carta 1215)
• No one above the law; no one exempt from
law
• Impartiality and fairness
• Equality before the law
• Judicial independence: a principle
established for 300 years
Common Law

Customary (common law)


imported from Britain
• Based on stare decisis - precedent –
‘stand by what is decided’
Civil Code

“A body of legislative Laws


brought together in a single body
to provide a relatively complete
set of legal rules.” (J & J p.53)
• Québec
• Written law
Statutory Law
• Rules set by parliaments or provincial
legislatures

• Doctrine of parliamentary supremacy

• Ultra vires rulings: Beyond the power of a


legislature
Canadian Constitution

• Evolves and changes over time


• Written
– Describes the organization of government
– Outlines powers and duties
• British North America Act, 1867
– “Similar in principle”
• Unwritten
– Conventions
– Responsible government
Constitutional Amendments

Rigid constitutions: difficult to amend

Flexible constitutions: easy to amend and adapt

Canada’s constitution quite rigid


• BNA Act had no amending formula
• Patriation required:
• Agreement on provincial participation
• Agreement on amending process
Bringing the Constitution Home
• Patriation
– Renewed federalism under Pierre Trudeau
– 1982 British Parliament passed The Canada Act
• Entrenched Charter of Rights and Freedoms
• Supreme Court
• Notwithstanding Clause provides opt-out
• Complex amending formula
• Provincial, aboriginal and women’s rights
Amending the Constitution
• Before 1982: Rules ambiguous

• 1981: The Supreme Court’s Reference on the


Constitution

• Since 1982: Procedures for amending the


Constitution
– General formula requires:
• Consent of federal government
• Consent of 2/3 of the provinces
Charter of Rights and Freedoms
Provides substantive rights and procedural rights

Protects fundamental freedoms


• Mobility rights
• Legal rights such as life, liberty, security of the person
• Equality rights preventing discrimination
• Linguistic rights
• Education rights
• Other specific rights
Charter Rights
• Not absolute
• Subject to “Reasonable limits...in a free and
democratic society”
– Oakes Test (R vs. Oakes 1986) must be in best interests
of a free and democratic society
• Section 33 “notwithstanding clause” allows
provinces and the federal government to “take
away” - rarely used
• Critics say Charter provides lawyers and judges with
too much power
Accords
• Meech Lake, 1987
• Changes would have altered federalism
• Not ratified
• Charlottetown Accord, 1992
• Agreement in principle to change the Constitution
• Recognition of distinct society for Quebec
Constitutional Referendum
October 26, 1992
• Charlottetown Accord endorsed by all three
federal party leaders
• But it failed to gain approval from
• 72% turnout
• 54.4 % No, 44.6 % Yes
Federal & Provincial Powers
• Residual power: Peace, order and good
government
• Section 91 specifies federal powers
• Section 92 specifies provincial powers
• Parliamentary system both federally and
provincially
Summary
• Constitution
– written and unwritten, plus unfinished business
• Federal and provincial powers – complex
evolving relations and responsibilities
• Funding
– Source of federal-provincial friction
– Grants and equalization
– Ongoing debate about money

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