Presentation on theme: "British North America Act, 1867 Ordinary Act of UK Parliament Defined institutions of government, e.g., Senate, Governor General, House of Commons,"— Presentation transcript:
British North America Act, 1867 Ordinary Act of UK Parliament Defined institutions of government, e.g., Senate, Governor General, House of Commons, Provincial Legislatures Distribution of powers and establishment of jurisdiction – e.g. provinces & education No bill of rights Most constitutional questions re: jurisdiction 4/10/20151
2 Some Charter History Much opposition to idea of adopting a Charter Revolutionary idea: Westminster model and parliamentary supremacy replaced with constitutional democracy and judicial review Constitutional legality of Trudeau govt’s plan to implement Charter challenged in “Patriation Case”
4/10/20153 Reference Re Resolution to Amend the Constitution of Canada (1981) Claim: Patriation unconstitutional owing to lack of consent of all parties whose power affected – provincial & federal govt’s
4/10/20154 British North America Act, 1867 BNA Act No amending formula Ordinary act of UK Parliament Thus, no means available to Canada to amend/alter except to make request to UK Parliament to make desired changes Colonial legacy
4/10/20155 Questions (1) Was it unconstitutional for Trudeau government to request the UK parliament to “patriate” the Constitution of Canada without provincial assent? (2) If provincial assent required, was unanimous assent required?
4/10/20156 Answers Yes, according to constitutional convention, but not constitutional law. (2) Unanimous assent not required, but “a substantial measure” of provincial assent required
4/10/20157 Reasons for Judgment The Constitution of Canada = Constitutional Law & Constitutional Conventions (Dicey) Constitutional Law = Statutory & Common Law rules
4/10/20158 Constitutional Conventions unwritten social rules based on non-judicial custom and precedent regulate activities of parts of the state: e.g. executive, legislative and judicial branches sometimes reduced to written word
4/10/20159 Constitutional Conventions, cont’d not enforceable by Courts no formal legal sanctions for breach usually political sanction (e.g. removal of GG from office) GG from office) generally circumscribe “wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all.”
4/10/201510 Reasons for Judgment, cont’d Convention existed requiring assent of provincial govt’s on matter affecting provincial powers Adding Charter significantly affected provincial powers Therefore “substantial measure” of provincial assent required
4/10/201511 Reasons for Judgment, cont’d SCC did not define “substantial” Trudeau government assumption: assent of all provinces except one satisfied criterion of substantial assent
4/10/201512 Reasons for Judgment, cont’d Quebec later challenged assumption, but point was moot Charter already “patriated”
4/10/201513 Pre-Enactment Concerns Re: Charter of Rights Substituting Parliamentary supremacy with entrenched rights against gov’t Judicial review by unelected judges Unsettles too much settled law Compromise: Sec 1 & 33
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