Law 101 Module 2

Point of a constitution (3)

Legitimacy/Sovereignty

Rules of The Game

Ideals and Aspirations

Legitamacy/Sovereignity

the parliaments authority

why do they have the right to make and enforce law?

grants power to make and enforce laws using force if necessary

Rules of The Game

Rules on how to use the power given to you

Ideals and Aspirations

Story the Nation tells of itself and how we should live together

Supreme Court of Says about the constitution…

Comprehensive set of rules and principles that provides an exhaustive legal framework for our system of government

defines powers of the courts

states relationship with individuals

government power cannot be lawfully exercised unless it conforms to the constitution

Fundamental Acts in the Constitution

Canada Act 1982

Acts and orders referred to in the schedule

any amendment to an act or order referred to in the previous

Is the Constitution written like the USA?

Yes and no, the constitution is not written in one document and there is multiple documents and unwritten practices that make up our constitution

eg the prime minister is not mentioned in the original documents but is seen as an unwritten practice.

Components of the Constitution (4)

Indigenous Constitutionalism and Treaty Relationships

Constitution Act, 1867

Unwritten constitutional principles and conventions

Constitution Act, 1982 (including Canadian Charter of rights and Freedoms and Aboriginal and Treaty Rights)

Constitution Act 1867

Previously called the British North America Act

British parliament enacted it and created Canada and its federal structure

what topics provincial and federal governments are allowed to make laws on

Constitution as the Supreme Law

all law and government action must conform with the constitution

any laws that are inconsistent with the constitution have no effect

Constitution Act 1982

• any law inconsistent with the constitution has no effect

• supreme law

• every citizen has the right to vote in an election

• unenforceable laws cease to exist

Parliamentary Supremacy

The parliament under English law has the right to make or unmake any law whatever and no one has the right to overturn it

(Uk only)

Constitutional Supremacy

Supreme Law in Canada and no law can be inconsistent with it.

Constitution is Supreme

Charters Alternation of Supremacy

The charter being adopted caused the Canadian System of government to be one of constitutional supremacy when it used to be one of mainly parliamentary supremacy

expanded the authority of judges to strike down unconstitutional laws (judges guard the constitution)

tensions between judges and democratically elected branches

Read Laws Down

narrow the constitutional meaning to understand it more

eg “hate” reads down to only cover the most extreme versions of hate

How can Constitutional Amendment Occur

unanimous consent of all provinces or strong majority in fed gov

basically impossible

sometimes you don’t change the law but you can understand it more

Federalism

division of legislative power in a state

political power shared by the two orders of government

in the constitutions DNA “federally united into One Dominion”

Level Jurisdiction of Federal and Provincial Gov in correspondence to the constitution

the federal and provincial branches are autonomous and supreme but both must be accountable to the constitution

provincial governments are not subordinate or created out of left overs

Federal Jurisdiction

The federal government has authority over certain aspects that the provincial governments don’t

Eg.,

• taxing

• criminal law being the same across Canada

• Indigenous Land

Provincial Jurisdiction

provincial governments have authority over specific areas

eg.,

• income tax

• civil rights laws and property (private law system)

• hospitals

• labour rules and professional regulations

• minimum wage

Population Issue federalism

Should all the provinces be treated the same even though they have different populations and cultures

Symmetrical Federalism

system where all provinces have equal powers, responsibilities, and status within the federation

each is treated the same under the constitution

Asymmetrical Federalism

system where all provinces have different powers, responsibilities, and status within the federation

down to accommodate unique cultural or historical differences (Quebec)

Dominate Tide of Federalism

Overlap of provincial and federal jurisdiction and the controversies that can arise

Ultra Vires

Declaring laws invalid due to the power of the courts in policing the federal division of powers

Federal Paramountcy

Federal Laws prevails over provincial law which have power to enact laws over others