The Constitutional Framework

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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

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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.

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conventions

• Canadas Constitution also has an unwritten
  aspect. In Britain, many of the most important
  concepts werent written down
• A constitutional convention is a custom or
  practice, while not necessarily legal, is based
  on accepted reasons and practicesthe Gov.Gen
  names the P.M

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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 stateBNA Act gave
  francophones religious, language rights in Quebec
  and N.B

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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

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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, its written)

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• 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 viresits beyond a legislatures
  power.

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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
  governmentnot pursuit of happiness

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CANADAS CONSTITUTION - Chapter 4

• consists of two elements
• BNA Act of 1867
• Constitution Act, 1982

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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 Govt of Canada.

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• 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 legislations initial formulation, only be
  altered by constitutional amendment, not by
  ordinary Parliamentary means)

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• 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.

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• 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.

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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

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• 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)

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• 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.

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CHARTER OF RIGHTS FREEDOMS

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

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TWO MAJOR APPROACHES AS TO HOW TO PROTECT THE
LIBERTY OF THE SUBJECT

• Traditional Common Law Model
• Bill of Rights

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.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.

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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.

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• 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)

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• 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

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EQUALITY RIGHTS

• Sec. 15 of C.R.F. deals with Equality Rights

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• 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.

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• 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)

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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.

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• 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.

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• 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 childs siblings received primary
  or secondary education in either English or French

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NATIVE RIGHTS

• The charter recognizes native rights although,
  the precise nature of such rights has still to be
  determined.
• (See p. 40 text)

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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.

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• 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.

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BUT MOREOVER
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• 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.