Chapter 3

• The Constitutional Framework

– A constitution is a body of fundamental rules, written and unwritten, under which governments operate.

– most modern constitutions outline key institutions of government and list rules that restrain political leaders from arbitrary action

written and unwritten

• Written - a constitution is the fundamental state law set down in one or more documents

• Unwritten - is a constitution consisting of customs, convention or statutes.

• Canada has a written constitution. In 1982, the original BNA Act and all past constitutional laws were combined.

conventions

• Canada’s Constitution also has an unwritten aspect. In Britain, many of the most important concepts weren’t written down…

• A constitutional convention is a custom or practice, while not necessarily legal, is based on accepted reasons and practices…the Gov.Gen names the P.M

Individual and collective rights

• Constitutions convey rights/entitlements to individuals and groups

• Individual rights are individual claims against the state. (Canadian Charter of rights and Freedoms)

• Collective rights - duties owned to certain groups (and not others)by the state…BNA Act gave francophones religious, language rights in Quebec and N.B

The Rule of Law• a guarantee the state, too, will act according

to the law

• no one above the law, no one exempt from the law

• impartiality and fairness

• equality before the law

• judicial independence: principal established 300 years ago

Common Law

• common law - underacted or case law

• a body of established rules

• stare decisis: stand by what is decided (the rule of precedent) Binds lower courts to follow decisions made by higher courts.

• the Civil Code in Quebec performs the same function Code civil or Napoleonic Code of France. (unlike common law, it’s written)

• statute law - rules set by Parliament or provincial legislatures.

• the relationship between statutory and common law is defined as the doctrine of parliamentary supremacy. In Canada, 11 legislatures have the authority to repleal any principal set out in common law. But the Supreme Ct. can declare an act ultra vires…it’s beyond a legislature’s power.

Development of Canadian Constitution

• in federal states, constitutions divide the power/responsibilities between central government and provinces

• constitutions change over time.

• BNA Act 1867 produces a political union of British colonies

• responsible government: peace, order and good government…not pursuit of happiness

CANADA’S CONSTITUTION - Chapter 4

• consists of two elements:

• BNA Act of 1867

• Constitution Act, 1982

REPATRIATION, THE CHARTER , AND MEECH

LAKE

• May 1980, Rene Levesque had a referendum. The referendum said “No”. Quebec did not want to negotiate sovereignty with the Gov’t of Canada.

Trudeau intervened, he promised Quebec constitutional reform, and later in 1980 introduced proposals to “repatriate” the Constitution, by establishing an amending formula and to entrench a bill of rights.

(entrenchment: rights provided could, at least in the legislation’s initial formulation, only be altered by constitutional amendment, not by ordinary Parliamentary means)

Trudeau tried unilaterally to “entrench” but only NB & ON agreed.

In 1981, Supreme Court heard the appeal of the provinces. PM did not legally have to consult provinces. Federal/Provincial talks resumed and agreement was reached with 9 provinces.

In 1982, Canada could now amend its own constitution, and possessed a Charter of Rights and Freedoms. Queen came in 1982 to sign the legislation.

Quebec did not sign, changes failed to provide Quebec with constitutional guarantees they considered necessary to preserve its language and culture. (Document was legal, despite Quebec not signing.)

1984 Mulroney & Bourassa re-opened

negotiations and in 1987 Meech Lake Accord was

signed by all 10 provinces’ premiers and was to

be ratified in all 10 provincial legislatures.

Main Features of the Meech Lake Accord:

• (considerable degree of decentralization)

“opting out” provisions from federal programs

greater control by Quebec over language and immigration

a say for Quebec in the appointment of judges and senators

a veto for Quebec on constitutional amendments

recognition of Quebec as a distinct society

A 3-year deadline for ratification by Parliament and provinces was set. (June 23, 1990)

• Meech Lake Accord died June 23,

1990. Nfld. rescinded its consent,

parliamentary procedure in

Manitoba caused blockage of the

Accord by Elijah Harper, because

the Accord did not address native

concerns.

CHARTER OF RIGHTS & FREEDOMS

• Trudeau gave us a Charter of Rights & Freedoms, entrenching the liberties of Canadians.

TWO MAJOR APPROACHES AS TO HOW TO PROTECT

THE LIBERTY OF THE SUBJECT

• Traditional Common Law Model

• Bill of Rights

.Traditional Common Law Model• Inherited from Britain and assumes Parliament

is the best source of protection of individual rights. We have some control over the process through elections.

• Supporters of this point of view say this approach is more flexible and adaptable than a codified, entrenched set of rights which “freezes” ideological consensus of a particular era.

Bill of Rights

• Americans pioneered a bill of rights. The first ten amendments to their constitution of 1791 can only be altered by a constitutional amendment.

• Bill of Rights (in Canada: Canadian Charter of Rights and Freedoms) is intended to protect individuals and minorities against the “tyranny of the majority”.

• Was not intended to “revolutionalize” the system of citizens’ rights in Canada

• Was a consolidation of legal rights already in operation

• Seeks to protect fundamental freedoms such as thought, belief, opinioned expression, freedom of assembly and association

• Includes a concept of democratic rights; the right to vote, join organizations, seek elective office

• Provides protection of mobility within the country, as well as the right to enter, leave, remain in Canada (subject to residency and provincial policies)

• Provides for legal rights; the right to life, liberty, security of person and right not to be deprived thereof, except in accordance with principles of fundamental justice

• Contains a basic package of rights to those individuals involved in criminal cases

• Outlines framework within which evidence may be gathered, and a right to counsel

• One is innocent until proven guilty (or otherwise) in a court of law

• Prohibits “cruel and unusual punishment”

EQUALITY RIGHTS

• Sec. 15 of

C.R.F. deals

with Equality

Rights

• The intent is to prohibit discrimination against and to guarantee equal treatment of all persons, regardless of race, nationality, ethnic origin, colour, religion, gender, age, mental or physical disability.

• Charter provides for a constitutional exemption from the general norm of equal treatment in favour of affirmative action programs.

• Such programs cannot be regarded as violating the general thrust of the Charter. (In USA, judicial objections to some affirmative action programs has obstructed ratification of ERA)

LANGUAGE RIGHTS

• Little attention given in BNA Act, but given extensive attention in the Charter

• English and French are constitutionally recognized as official languages of Canada and the Province of New Brunswick.

• Charter provides for use of both languages in Parliament, Legislature of New Brunswick, all government institutions, the courts, crown corporations.

• Status of French (English in Quebec) language in other provinces is still in dispute, some have made available a wider range of services in French.

• Right to education in French or English, where there is sufficient demand, and where the parents first learned and still understand either language, or if child’s siblings received primary or secondary education in either English or French

NATIVE RIGHTS

• The charter recognizes native rights; although, the precise nature of such rights has still to be determined.

• (See p. 40 text)

• ********************************

However:

• In the Charter of Rights and Freedoms, none of the “rights” is absolute because they are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

• Civil libertarians’ organizations have been disturbed by this

provision, seeing it as a means by which just about any limitation of a

particular right can be justified.

BUT MOREOVER:

– Section 33 of the CRF provides for a legislative override, whereby Parliament or a provincial legislature can enact a law ‘notwithstanding’ a provision included in Sec. 2 or Sec 7-15 of the Charter.”*

– (Bourassa did this outlawing English signs in Quebec) He withdrew this clause after one year. The notwithstanding clause becomes inoperative after 5 years, and must be passed again. (P. 60, 66-67)

– * This clause does NOT apply to democratic rights or mobility rights.