Constitutional Law: An Overview

What is a Constitution? A legal framework that establishes how power & authority within a country is exercised. The supreme and central law of the land. Assigns the limits to the power of the state. In democracies, they reflect the S/E/P values of society Canadian constitution is a combination of many unwritten rules and written documents added over time.

Canada’s Written and Unwritten Constitution Canada’s federation is documented within: Constitutional documents- outline the structure of gov’t, division of powers, and rights of ind’ls. Conventions- followed primarily for reason of tradition rather than law. Common law- addresses the constitutional disputes and establishes precedents upheld by our legal system.

Canada’s Original Constitution: The BNA Act, 1867 Prior to 1867, Canada was a British colony w/ no governing legal document. The BNA Act was passed by the British parliament in 1867; Canada (the colony) officially created with the unification of Ontario, Quebec, NB and NS The BNA Act outlined: Structure/Organization of Canada Rules for Canada’s gov’t GG signature was required on all bills or treaties

Written Versus Unwritten Constitution Prior to 1982, Canada’s Constitution was considered unwritten b/c it was just a collection of documents used to govern the nation. Documents Used Included: Royal Proclamation 1763: made British law applicable to all her colonies Quebec Act 1774: allowed Quebec to continue to use French Civil law rather than British Common Law. Act of Union 1840: united the provinces of Upper and Lower Canada and established responsible government. The BNA Act 1867: united the four founding provinces into one country Canada but did not patriate it because the provinces could not agree on an amending formula. Statute of Westminster 1931: ended Canada’s status as a colony

BNA Act: Division of Powers BNA set out 2 levels of government: Section 91: outlines the responsibilities of the Fed Gov’t Section 92: outlines the responsibilities of the Prov Gov’t - Prov Gov’t also had the authority to create Municipal gov't large urban areas. Section 93: has provisions to prevent provinces from affecting guaranteed rights like separate schools.

Problems with the BNA Act: Canada did not have authority to pass its own laws Unable to amend constitution w/out approval of British parliament. Lack of clarity in division of powers between level of gov’ts. Civil liberties of Canadians not protected!

PM Pierre Elliot Trudeau made it his mission to right a new constitution for Canada. He wanted to ‘Patriate’ Canada’s Constitution. (bring legislative power home) He received a lot of opposition from the Provinces (esp Quebec).

The Road to Patriation in 1981….

The Constitution Act (1982), was finally patriated on April 17th, 1982.

2. Principle of National Resources 3. Amending Formula Principle Patriated Constitution included the core elements of the BNA Act, as well as, 4 new principles: Principle of Equalization 2. Principle of National Resources 3. Amending Formula Principle 4. The Charter of Rights & Freedoms

1. Principle of Equalization Section 36 (1) of the new charter guarantees that tax monies will be distributed so that all Cnd’s will enjoy the same level of success. I.E. Just b/c Ont is richer it doesn’t mean its inhabitants are entitled to better hospitals. #2. Principle of National Resources Provinces can have control of their own natural resources, under the condition that they cannot impose tariffs on the sale of the resource w/in Canada.

#3: Amending Formula Principle The constitution can be amended as long as 2/3 of the provinces, representing at least 50% of the population, approve of the amendment. House of Commons + Senate have to agree. If a change to the constitution involves the activity in only 1 province, then only the Fed + specific Prov gov'ts would have to agree.

Principle #4: The Charter of Rights & Freedoms Most significant part of the new constitution. A document that guarantees certain Rights and Freedoms to Canadians Why Entrench? Bill of Rights (the predecessor) was limited b/c it was only a law. Charter laws have constitutional status; any law that violates them will be struck down.

Evolution of Rights and Freedoms in Canada

What is the difference between a right and a privilege?

Rights Vs. Freedoms….. What is a right? A legal, moral or social claim that citizens can expect mainly from their government. Inalienable rights: Guaranteed entitlements that cannot be transferred from one person to another What is a freedom? The right to conduct one’s affairs without government interference.

Canadian Bill of Rights (1960) Issue of Human Rights + Freedoms became a global focus post WWII (holocaust & UN Declaration of Human Rights 1948) As a signature of the UN, Canada embraced the importance of establishing laws protecting human rights. First attempt to codify the rights & freedoms across Canada was in 1960: - PM John Diefenbaker enacted a statute by parliament called the Canadian Bill of Rights

The Bill of Rights Recognized: The rights of individuals to life, liberty, personal security and enjoyment of property. Freedom of religion, speech, assembly and association. Freedom of the press The right to counsel and the right to a fair hearing

Evolution of Rights in Canada Since 1867 Confederation: BNA Act outlined no human rights 1920 Fed Elections: Men & Women over 21 could vote. Asians + Aboriginals still no vote. 1929-30 Persons Case: Women viewed as ‘persons’ in the law. 1940 Christie V. York Case: Refused service at bar b/c he was of colour. 1941-45 Japanese Internment b/c of War Measures Act 1948 Voting Rights: Racial restriction on voting removed except for aboriginals (1960) 1960 Canadian Bill of Rights 1962 Ontario Human Rights Code 1970 War Measures Act (October Crisis + FLQ) 1982 Canadian Charter of Rights and Freedoms

Limitations of the Bill of Rights: As a federal statute, it only applied to matters under federal jurisdiction. - Failed to meet Diefenbaker’s intention of making Bill applicable to provincial jurisdictional matters. - provinces could legislate as they wished. As a statute, it had same status as other statutes. -Didn’t take precedence over any other statute; judge had to decide which law to enforce in bill of rights violations. As a statute, it could be amended by a majority vote in the H of C - Thus protections offered in bill could be changed or eliminated at any time.

Historical Evolution of Rights….. 1948: UN Declaration of Human Rights Broader recognition of human rights & fundamental freedoms 1776: U.S. Declaration of Independence Ind’ls have natural inalienable rights to equality and liberty 1689: British Bill of Rights Gave Brit parliament supremacy over monarch Extended civil & political rights I.E- elections, fair bail, no cruel punishment 1215: Magna Carta signed by King John in England Established basic ind’l rights (rule of law + habeas corpus) Historical Evolution of Rights…..

HR Laws in Canada... Human rights legislation applies to violations caused by individuals. Fed Gov’t has enacted the Canadian Human Rights Act; provides protection against discrimination for those areas falling w/in the scope of federal authority. Provinces have enacted their own laws (i.e. Ontario Human Rights Code)

Natural vs. Positive Rights Naturalists views rights as enduring + universal. Minimal or no limitation. “Non-Restrictable rights”. Human rights are superior to human laws. Violation of human rights can justify civil disobedience. Positivists recognize that rights are shaped by a political authority. Rights subject to s/e/p changes in a society. Rights tied to the collective well-being of community. “Restrictable Rights”