! What is a basic description of constitutions and their purpose?
- they establish the structures of the regime
- they are the rules of the game
- sometimes they are more vague, fundamental principles (needing to apply to governments across time and history)
- they are authoritative > constitution is supreme > can’t appeal to anything higher
- built to ensure that governments are following the rules
! What are the 2 types of constitutions?
- Written (US, France, partly Canada)
- from the French (civil code)
- everything written out in a single document - Unwritten (UK, partly Canada)
- from the British
- not written into a single document
! Describe what the 3 Constitutional Forms are?
- Constitutional Conventions
- a longstanding political practice or custom, based on implicit agreement and precedent (and held together by this agreement)
- can be easier to challenge these boundaries since they’re not written down (politicians often do this)
- enforced in the political arena (no need for the courts to intervene, but you could be condemned)
- ex. confidence convention - Organic Statutes
- regular law, but on constitutional matters
- foundational laws that are enacted by legislature that sets up or governs key institutions of government (like parliament, courts, etc.)
- changeable > at the whim of which government is in power
- shape constitutional structure but are not necessarily entrenched
ex. Canadian bill of rights - Entrenched Constitutional Law
- more authority than organic statutes
- “Super law” “Supreme Law of the Regime”
- Entrenchment: protected and can only be changed by formal amendment procedure
- neither parliament nor provincial legislature has PWR to alter them
Why do we entrench some laws rather than just rely on statutes and conventions?
- Federalism and the need for a written division of powers (between federal and provincial)
- Guaranteeing rights
- protecting individual rights (ex. charter)
- Protects rules from the politicians reach - not subject to the debates of the day
What are the 3 main functions of constitutions?
- Give power > determine who exercises political authority
- Divide power > specifies division of power
- Limits power > specifies limits of government power
What are the 3 levels of authority/power in Canada (how do constitutions empower these actors/bodies)
Legislative:
- makes laws
Executive:
- execute laws (and enforce them)
Judicial:
- interpret laws (and settle questions about them)
Who holds executive power in Canada?
Constitution says that executive power is held by the Queen/monarch (who is represented by the governor general)
There is also the Queen’s privy Council
- subset of the privy council is the CABINET
CABINET (queen’s advisors):
- exercises actual executive power on behalf of the crown
- PM advises the governor general who to appoint as members of cabinet (convention)
- PM is the first advisor in the cabinet (#1 executor of executive power)
***executive power is derived by the crown, but it is exercised by the members of the cabinet
(shows how we have combined democratic convention and the original constitutional text)
Who holds legislative power?
Constitution says The House of Commons holds legislative power > all spending/revenue/money bills have to come from here
- has to be passed by the HOC, the Senate, and given royal assent by the governor general
Modern Canada: most legislation comes from the government / executive / cabinet / PM
Who holds judicial power?
Constitution > says that the Constitution is the Supreme Law of Canada
> Supremacy Clause saying that the government always has to follow / align with the constitution as it is the absolute highest authority
Courts can nullify and strike down laws
Judges have judicial power which allows them to determine when a law is unconstitutional
What’s the important thing to remember about who holds power as defined by the constitution?
- who holds power may diverge from the constitutional texts
- largely a result of conventions and practice (conventions pulling us away from the text)
- Canadian government can be complex bc of how things have diverged and figuring out why they’ve done so
Define federalism and explain what this means in Canada / what is included?
Federalism = a political system in which ultimate authority is shared between a central government and regional governments
Political powers are divided between national and sub-national governments through a constitutional division of powers > explicitly lists specific jurisdictions and divides powers between them
Each government is perfectly sovereign in their areas of jurisdiction (federalism is not a hierarchy with federal above provincial)
Includes Residual power > powers that are not explicitly stated in the constitution (ppl who write constitutions have to allocate residual power for new things that have evolved since the constitution was created
Requires interpretation > division of powers is not always 100% clear > if federal and prov governments disagree on division of pwrs, judges can engage in interpretation
Explain the division of power between provincial governments and minicipalities
Constitution says that provincial governments have authority over municipalities (empowers prov governments to have pwr over municipal affiars)
- prov governments make statutes for municipal governments
- implication of this = municipal powers can be changed by provincial statutes
What is the main thing that limits government’s power?
The Constitution > government is subordinate to the constitution (if they act outside of the constitution, those actions/laws should be struck down by the courts)
The Supremacy clause: governments must act in accordance with the Constitution
Constitutions also limit powers by explicitly delineating individual rights (the charter)
What are the two types of constitutionally recognized rights?
- Negative rights (proscribe government action)
- “freedom from…”
- usually protection from the state > preventing the gov from doing things that will violate your rights and protecting your ability to do things by limiting what the state can do
- ex. fundamental freedoms like religion, expression, association - Positive rights (prescribe government action)
- “freedom to…”
- places obligations on the state > tells them what they have to do
- less likely to actually be written into real constitution
- the state isn’t always bound by these > we vote for govs that will be more or less likely to prioritize these positive rights with things like social safety nets
- ex. Article 25 (Universal Declaration of Human Rights): right to an adequate standard of living (food, clothing, housing, medical care, social services) (an aspirational constitution from the UN)
Briefly explain what the 2 parts of the Constitution are and what they contain
- Constitution Act 1867 (BNA Act)
- no entrenchment
- act of British Parliament
- No Bill of Rights > but we still fell under British conventions and common law which is perhaps why the government wasn’t being horrible to citizens - Constitution Act 1982
- contains the Charter of Rights and Freedoms
- contains amending formulae
! What are the important provisions in the Constitution Act 1867
Preamble: Establishes responsible government
Parts III and IV: Describes executive and legislative power
Part VI: Division of Powers
Part VII: Establishes Supreme Court
! What was the issue with amendment/legislative powers after the Constitution Act 1867? What things impacted these powers?
- even after the 1867 constitution, the UK Parliament still had substantial legislative powers (they could still make or override our laws)
- 1931: Statute of Westminster > largely removed those powers - couldn’t make laws for us without our permission (we became independent in making our laws)
- 1949: British North American Act (No.2) > Canadian Parliament received incomplete constitutional amendment powers (Britain still had to approve amendments)
- SO, there remained efforts to “bring the Constitution home”
! Explain the events leading up to patriation / Constitution Act 1982
Events of a gradual, peaceful disentanglement from the UK:
- 40s and 50s = rising Canadian nationalism (moving away from identifying as British subjects)
- 70s = difficult negotiations happening between competing interests (Quebec, Trudeau, other premiers), as well as the federal and provincial governments
- Patriation Reference: reference case sent to the supreme court (gov asking the court for guidance/ruling) > court determined that a “substantial level of consent from provinces” is required for the new constitution
- 9/10 premiers signed onto the new constitutional act
- Last request sent to British Parliament to amend Canadian Constitutions
- Canada Act 1982 is here!!
What was a big consequence of the Canada Act 1982?
“Night of the Long Knives” = Quebec feeling like they had been stabbed in the back
- because the Supreme court had decided that not ALL provinces needed to sign the constitution (just needed sufficient support), the only province that didn’t sign was Quebec
- very controversial for Quebec > created disenchantment and decades of strife, seperatism, and conflict
- created division (and efforts to bring Quebec back and get their signature on the constitution
! What were the main important provisions in the Constitution Act 1982
Part I: The Charter
Part III: Equalization = idea that Canadians should have relatively equal access to government services / opportunity to have a good life (no matter where you live) federal gov has a constitutional obligation to participate in the relegation of money to ensure equalization for Canadians
Part V: Amending Formulae
Part VII: Primacy Clause
What is the Notwithstanding clause? What are examples of this from today
Notwithstanding clause allows governments to act, notwithstanding the rights in the Charter (can override the courts)
ex. Alberta planning to lose the notwithstanding clause if they lose court challenges about transgender rights and parental rights
ex. Federal government wanting to apply limits onto the notwithstanding clause
*Democracy vs. rights of individuals
*Speaks to foundational issues of how we are governed as a country
!! What are the 5 procedures for Amending Formulae in the constitution (and explain what the most most serious one is)
- General Procedure
- most important/serious changes fall under this category
- follows the 7-50 formula > have to get 7 provinces that constitute at least 50% of the population to agree
- this is very hard to do (it’s never happened)
- it’s supposed to be hard because we need the constitution to be put outside of the easy reach of politicians - Unanimous agreement
- Some provinces
- Parliament
5.One province
What are the two types of constitutional changes that followed CA 1982 and examples of these
- Macro-Constitutional Change (under general procedure amending formulas > for formal constitutional changes)
- Meech Lake Accord
- Charlottetown Accord - Micro-Constitutional Change (little changes that can affect the constitutional order, without having to go through the general procedure > a lot can be accomplished through micro-constitutional change)
- Secession Reference
- Clarity Act
- Quebec as a distinct society
Describe what the Meech Lake Accord attempted to do and what it included
Attempted to bring Quebec into the Constitution
Includes:
- distinct society
- constitutional veto
Didn’t succeed because it was necessary to satisfy the other provinces - the following points were added to try to offer concessions to other provinces:
- provincial powers over immigration
- provincial advice on senators and judges
- provincial opt-out clause
- had to meet the requirements of the general procedures > so it died because Manitoba and Newfoundland wouldn’t sign off on it
