CANADIAN CONSTITUTIONAL LAW CLN4U: Unit 2 (Chapter 4)

What is the Constitution? It is the supreme set of laws for the country. The Constitution provides the basic framework for the government and the legal system

The Canadian Constitution Canada’s Constitution is called the Constitution Act of 1867, which was originally called the BNA Act of 1867. It was patriated in 1982 at which time the Charter of Rights and Freedoms was added. The Constitution Act, 1982 replaced the old BNA Act, 1867, by making it a true Canadian (not British) law, and adding the written Charter of Rights and Freedoms.

Sources of Canada’s Constitutional Law There are three sources to Canada’s Constitutional law: The written constitution (Constitution Act 1867, and the Constitution Act 1982.) The unwritten set of rules and conventions in which the system operates. Conventions are practices which have become part of the law. Court rulings that interpret the written constitution.

The Division of Powers The Constitution Act, 1867 divided the powers of government into two levels: Federal and Provincial. The Federal level of government was given jurisdiction over national concerns, such as Defense, Foreign Policy, and Trade Agreements.

The Division of Powers The Provincial level was given jurisdiction over regional and local concerns, such as Education and Healthcare. Municipalities were not given powers under the constitution; the provinces created municipalities as an extension of their jurisdictions.

The Role of the Courts The role of the courts is to interpret the constitution and to solve disputes between the levels of government. Judgments made in lower courts such as the Provincial Courts or the Federal Court can be appealed to the Appeals Courts, Supreme or Superior Courts, and ultimately to the Supreme Court of Canada. Judgments made at the Supreme Court of Canada cannot be overturned, and become “Legal Precedent” and therefore part of Case Law.

Judicial Committee of the Privy Council Located in London England, this body was part of the British Court system and not a Canadian court. The JCPC was the highest court of appeal for Constitutional matters until 1949, when The Supreme Court of Canada assumed this role. The JCPC overturned a Supreme Court of Canada decision in 1929 with the famous “persons case”, allowing women to be appointed to the Senate.

Patriation of the Constitution Patriation of the constitution meant that Canadians would fully control the constitutional law, and that they would be able to develop an amending formula for any future changes to constitutional law. Legal Convention had required that the provinces must support any new amending formula.

Constitutional Amendments The Meech Lake Accord (1987) Allowed “distinct society” status for Quebec in order to protect cultural and religious aspects of Quebec’s society. Gave the provinces more power in the areas of Senate and Supreme Court nominations. Meech Lake failed to recognize the concerns of aboriginal Canadians. Was not ratified by all provincial legislatures before the deadline and therefore expired.

…Constitutional Amendments The Charlottetown Accord (1992) In addition to Quebec’s “distinct society” status, Aboriginal self-government was addressed. The process for selecting the Supreme Court Justices would be “entrenched” in the constitution. The Senate would be elected The accord failed by referendum in six provinces and one territory.

Issue for discussion Should the government fund private religious education?