POL214 WINTER 2025 MIDTERM UOFT

Constitutional Foundations

Sets the overarching legal framework, while statutory laws detail specific regulations enacted by legislative bodies.

Constitutional Foundations History 1

The two provinces of central Canada (Ontario, Quebec) and also

the Maritimes were established colonial societies in the 18th

century, before Confederation in 1867.

Constitutional Foundations 2

BC became a British colony in 1858

➢ Manitoba was created in 1870

➢ Saskatchewan and Alberta were created in 1905; And

➢ Newfoundland as a British colony dates back to 1580s

Royal Proclamation of 1763

Created the British Colony of Quebec

• Governors appointed by UK

• Established treaty protocols with Indigenous peoples that are foundation

of today's treaty rights

The Quebec Act of 1774

Significant for identity recognition and protection

• But executive control stays in British hands

The Constitutional act of 1791

Creates Upper and Lower Canada

• Representative government introduced

Representative Government

Elected assembly instated in the colonies by

Constitutional Act of 1791

• However, these elected representatives had no power to

make laws and executive was not required to seek input

from elected assembly

Orgins of Responsible Government in Canada

Inherited from UK

• Recommended by Lord Durham in 1839 in

response to armed rebellions in Upper and

Lower Canada

• Separation of powers → Responsible

government

Conventions of Responsible Government

Crown uses power only on advice of ministers

Crown only appoints MPs as ministers (typically)

Collective responsibility

Crown will appoint only those who have the confidence of the

House

Loss of confidence = new ministry (government)

Fusion of Powers-Executive Authority

Carried out by the Prime Minister and their appointed cabinet

• Vested in the Crown

Legislative Power

Power to make laws

Cabinet Makers executive and legislative

Cabinet ministers do both executive and legislative work because

they are members of parliament in addition to ministers in

government

Prorogation

Ends a session of parliament

Not the same as dissolving

parliament

Speaker, PM, ministers, and

parliamentary secretaries retain positions in government, MPs

retain privileges

In this case, prorogation will delay

impending confidence vote likely

Example of Porogation

December 2008 Harper

• Facing non-confidence vote

from Bloc-Liberal-NDP

coalition

• Seeks dissolution

• Michaelle Jean (GG) says no

due to very recent election

• Harper granted prorogation

instead; delaying, not avoiding

confidence vote

Act of Union 1840

Upper and Lower Canada merged into one colony with English

speaking majority

• Final attempt at assimilation

• Additional result of the Durham Report

Macdonald for Confederation

Unitary state

• Strong central government,

weak provinces

• "The Nation"

Cartier for Confederation

Federal state

• Significant powers for

provinces

• pluralism

West Minister parliamentary system 1

Legislative arrangements

• Bicameral legislature

• Appointed upper chamber: House of Lords (UK)/ Senate (Canada)

• Elected lower chamber: House of Commons

West Minister Parliamentary system 2

The Crown

• The monarch, King Charles III

• Represented by Governor General in Canada, Mary Simon

Exeucitve Structure

The Crown and The Cabinet

Legislative Structure

House of Commons

• Senate

The Crown

The King of Canada is Canada's head of state

• Power is exercised by the Governor General or

the Lieutenants Governor at the provincial level

• Power to: dissolve Parliament and call

elections; call on parties to form government;

grant royal assent to bills

• Symbolic

Privy Council and the Cabinet

Crown's power is wielded by members of the Privy

Council

• And more specifically current members of Cabinet

led by the Prime Minister

• Actions taken by the Governor General on behalf of

the Queen/King are done on advice of the Prime

Minister

Westminister Parlmentary system 3

• Fusion of power of executive and legislative branches

• Executive power is strong, challenges notion of "parliamentary

supremacy"

• Independent judiciary

• No power of judicial review in UK

• Courts do have this power in Canada

Federalism

Responsible Government

A form of government in which the political executive must retain the confidence of the elected legislature or assembly and must resign or call an election if and when it is defeated on a vote of non-confidence (Cochrane et al., 2020)

History of Responsible Government

Originated in Britain and introduced to pre-confederation colonies 1848 and 1851

Adopted in many liberal democratic regimes globally

Cabinet exercises both legislative and executive power

Judicial Indépendance 1

Constitutional principle

Judiciary should act independently of other government apparatus

Set of structures and rules in place to support independence

Judicial Independence 2

Security of tenure

Security of remuneration

Judges control administration of courts

What is a Consistution?

Establishes the fundamental rules and principles by which a state is governed. It determines which institutions have the authority to make laws and governing decisions and the relationships between those institutions

Can be written or unwritten or some combination

Other laws are shaped by and expected to be consistent with it

What are some examples of what the Consititution outlines relationships between?

Basic institutions of government

National and provincial governments

Government and citizens

Constitutional Monarchy

The official designation of the Canadian form of government, characterized by a monarch who is head of state but who rules according to the constitution which confides almost all governmental power into other hands. (Cochrane et al. 2020)

By convention, executive authority delegated by the monarch to Prime Minister and Cabinet

All executive decisions must have assent of the Crown

The Crowns Role in Legislation

Parliament sends bills to King for royal assent

Bills do not become law without royal assent

Democratic principle leads to convention that royal assent is not withheld

The Governor General

Provided for in Section 10 of CA 1867

The monarch's representative in Canada

Canadians not appointed until 1952

Meets often for meetings with PM; content is strictly secret

"Backstop of responsible government"

Section 9 of the CA 1867 grants executive power to the governor general but section 11 stipulates a role for "advisors":

Governor General Part 2

Similarly to the Crown, the Governor General has extensive legal powers that are, by convention exercised by others. The Governor General's role is therefore largely symbolic.

Components of the Consistution

The Constitution Act, 1867

Formal amendments to the Constitution Act, 1867

British statutes and Orders in Council

Organic Canadian statutes

The Constitution Act, 1982

Judicial decisions

Constitutional conventions

Constitution Act 1867

Initially called the British North America Act, 1867

Creates the Dominion of Canada

No amending formula

17 formal amendments

British Statues and orders in Council

Statute of Westminster 1931 declares Canada's independence

Organic Canadian Statutes

Laws passed by parliament that are of special status

Laws that modify institutions or their operation

Ex.The Supreme Court Act

Constitution Act, 1982

Finally terminated all British authority over Canada

Did not alter the position of the monarchy in Canada

Includes amending formula

Includes the Charter of Rights and Freedoms

Consittutional Conventions

Fundamental principles that are consistently followed

Not contained in a legal document

Not enforceable by the courts

Crucial for understanding how a constitution operates

Judicial Desicions

Carried out by Judicial Committee of the Privy Council until 1949

"Umpire of federalism"

Empowered provinces

Canada's Constitutional Amending Formula

Actually five different versions

Correct formula depends on the scope of the amendment

General formula: Federal parliament + 2/3 of the provinces with 50% of population

Federalism PART 2

two levels of authority (federal and provincial in Canada)

constitutional division of powers

neither is subordinate or beholden to another

Unitary States

Power delegated to regions is the prerogative of central government

Regions not constitutionally equal

UK, France, examples

Federation

Constituent unit's autonomy is constitutionally protected

Powers cannot be revoked by central government

Variation in number of units, degree of symmetry and centralization

What are some Benefits of Federalism

Responsiveness to citizens

Laboratories of democracy

Protections against tyranny

Responsiveness to Citizens

More local = more accessible

Better awareness of local conditions

Laboratories of Democracy

"policy learning"

Can learn from policy makers in other jurisdictions

Protections against Tyranny

Federalism diffuses power

Can protect minority from majority

Can protect along geographic lines only

Costs of Federalism

race to the bottom

inequality of subnational units (asymmetry)

inefficiency

Race to the Bottom

Competition between jurisdictions may devolve into a race to lower regulations and tax rates

Jurisdictional Inequality

variation in fiscal capacity = variation in quality of public services

Equalization payments intended to address this

Centralization

Degree to which power is centralized in a federation

Varies between federations and over time within a single federation

Peace, order, and good government clause

Section 91 of the Constitution Act, 1867

outlines residual powers belong to the federal government

Provincial governance

Unicameral legislatures

Executive with premier and cabinet

Some unique political parties

Territorial governance

Not constitutionally entrenched

Heavy reliance on federal funds through the territorial financing formula

Led by elected premiers

Intra-state federalism

Representation by population in the House of Commons

Regional representation in the cabinet (informal)

Regional representation in the Senate

Fiscal Federalism

Designed to help balance each government's responsibilities with ability to pay

Conditional and unconditional transfers to the provinces

Includes equalization payments

Equalization intended to provide comparable levels of service at comparable levels of taxation

The Quiet revolution of the 1960s

Economically underdeveloped compared with the rest of Canada

Anger and frustration about the status of Francophones in Québec

Intense social and cultural change

Increased role for the state in Québec

Nationalist movement

The Victoria Charter 1971

Results from a series of federal -provincial conferences

Amending formula

Bill of rights

Role for provinces in Supreme Court Appointments

Equalization

Victoria Charter

Initially endorsed by Québec government

Nationalist public opinion skeptical

Eventually Québec vetoes

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Constitutional Negotiations

The negotiations following the failure of Victoria are shaped by the politics of Québec separatism/ desire for sovereignty and Trudeau's federalist vision for Canada

Québec Referendum 1980

Québec residents can vote

Asks for mandate to negotiate sovereignty-association

Trudeau promises concessions to Québec if it is rejected

60% vote no, 40% vote yes

Note that this is not a constitutionally required referendum

Constitution Act, 1982

Canada achieves full independence from Britain

Enshrines the amending formula

Introduces the Charter of Rights and Freedoms

Québec does not sign

MEECH LAKE ACCORD 1987-1990

Veto on constitutional amendments affecting Québec

Constitutional recognition of Québec as a distinct society

Strengthen Québec's role in immigration and Supreme Court appts

Ability to opt out of federal programs with compensation

MEECH LAKE ACCORD PART 2

Role for provinces in Senate appointments

Constitutionalize the Supreme Court

Annual first minister meetings

MEECH LAKE ACCORD PART 3

Initially unanimous provincial consent

Trudeau 1 vocal opponent

Others concerned with exclusionary process for Accord's creation

Elijah Harper, Manitoba MLA notes Indigenous people not included

Charlottetown Accord 1992

Quebec as a distinct society within Canada

Triple - E Senate

Indigenous self-government

Rejected in referendum

1995 Referendum on Québec Independence

October 30, 1995

Liberals back in power federally

Results very close "No" 50.8% of the vote

Abeyance

David Cameron argues we are now in a situation where "the parties to the conflict become mutually complicit in working to ensure that these unresolved, unresolvable issues do not boil up unexpectedly and put the whole constitutional order at risk"

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Rights and Freedoms

Types of Rights and freedoms:

- Political Liberties

- Legal Rights

- Equality Rights

- Economic Rights (more controversial)

- Constitutional bills of rights allow for important role for courts In interpreting and defining rights

Dual objectives of the Charter

Address limitations of the Bill of Rights

Entrench bilingualism including minority rights to education

The Creation of the Charter

Parliamentary supremacy inherited from the UK

1960 Canadian Bill of Rights

1982 Charter of Rights and Freedoms introduced with the Constitution Act 1982

Section 2 of the Charter- Fundamental Freedoms

Freedom of Conscience and Relgion

Freedom of THOUGHT, BELEIEF, OPINION AND EXPRESSION, INCLUDING Freedom of the press and other media communciation

Freedom of Peaceful assembly

Freedom of Association

Section 33: Notwithstanding Clause

Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

The Judiciary

3 key roles

Adjucating legal disputes between private parties

adducting cases in public law

Judicial review

Judicial review

The power of the courts to overturn legislation or an action of the executive branch of government

Judicial activism

Refers to a court that is willing to decide constitutional issues and to invalidate legislative or executive action

Judicial restraint

Refers to a court that is less likely to overturn legislation for contravening the Charter

Dialogue

Metaphor for the interaction between the judiciary and legislature in the context of judicial review

Judicial Independence

Constitutional principle

Judiciary should act independently of other government apparatus

Set of structures and rules in place to support independence

Judicial Independence II

Security of tenure

Security of remuneration

Judges control administration of courts

The Executive in Canada

Comprised of the Crown, the Prime Minister, and the cabinet

Executive powers are vested in the crown and exercised on the advice of the PM and cabinet

The British monarch remains Canada's head of state

The Crown

King of Canada is the Head of state, head of executive

In practice, the King delegates his authority to the Governor General

Currently, Mary Simon

Prerogative Powers

. Commander in chief of armed forces

2. Selecting/ dismissing the Prime Minister

3. Dissolving parliament and calling elections

4. Proroguing parliament

5. Granting royal assent

Powers of the Crown in Practice

- However, by convention the Governor General almost always needs to use powers in a specific way or on the advice of the Prime Minister

- Leader of majority party is always selected as Prime Minister; or leader of plurality party is given first chance to form government

- Royal assent is automatic, dismissal is never used

Powers of the Prime Minister + Cabinet

Exercise the powers of the Crown

Political leadership: determining priority issues

Ministers empowered to create regulations on specific policy issues

Ministers stipulate the functioning of their departments

Operation of Cabinet

Key Principles:

Collective responsibility

Cabinet solidarity

Cabinet secrecy

Powers of the Prime Minister

. Cabinet-maker

2. Chair of cabinet meetings

3. Party leader

4. Chief policy-maker

5. Leading player in the House of Commons

6. Chief personnel manager

7. Advisor to the Governor General

8. Chief diplomat

9. Public persuader

THE CENTRAL AGENCIES

Privy Council Office

Department of Finance

Treasury Board Secretariat

Prime Minister's Office

Privy Council Office

Non-partisan office

Responsible for organizing and supporting the work of cabine

Head is the deputy minister to the Prime Minister

Department of Finance

Provide financial advice to cabinet

Responsible for macroeconomic policy

Reports to the finance minister but also supports the whole cabinet

Treasury Board Secretariat

Involved in the creation of budgets

Oversees spending

Manages labour relations in the civil service (n=~300 000)

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Prime Minister's Office

Staffed temporary, partisan loyalists

Evolved signficantly since 1960s

Media relations, public appearances, travel

Current Chief of Staff: Katie Telford

What is Parliament

The Crown

The Senate

House of Commons

The House of Commons - Key Terms

Government

Government backbenchers

Private members

Opposition MPs

The official opposition

Conventions of Responsible Government

1) Crown only uses power on advice of ministers

2) Crown only appoints MPs as ministers (typically)

3) Collective responsibility

4) Crown will appoint only those who have the confidence of the House

5) Loss of confidence = new government

Functions of the House of Commons

Does not govern but decides who gets to govern

confidence chamber

legislative

representative

providing scrutiny

Composition of the House of Commons

Determined in general election

338 Members elected in single member district

Geographic representation built into smp

DEMOGRAPHIC REPRESENTATION HISTORICALLY WEAK IN CANADA