GMGT 3300: The Canadian Constitution

The Constitution

• primarily about the political power, the location, conferment, the distribution, exercises and limitation of power among the organs of the state

• it must…

  • provide for the creation of the basic organs and institutions of public authority

  • define the powers possessed by each of the public institutions and in some respects define the relationships between them

  • provide for the processes by which law is created and the limitations on the power, i.e. assign legal responsibility, define limits of authority, and establish the processes which must be followed before this authority can be executed

  • provide for a method of change, both of political leadership and of the basic constitutional framework

Where is the Canadian Constitution Found?

• necessary to look at a whole series of statutes and other legal documents to ascertain how, at least to some extent, power is allocated in the Canadian system; it’s a myriad of documents

• many rules with respect to the functioning of authority in a constitutional system aren’t defined in authoritative legal documents, but rather are the result of consensus among the actors in a political and constitutional system

• much of the constitution isn’t law, and isn’t enforced by the courts

Constitutionalism

legitimate actors in the political system have only such authority as is vested in them by law and that any attempt to move beyond the peripheries of these authorities is illegal or ultra vires (beyond power, therefore void)

Authoritative Sources

• create constitutional rules which are law because they’re enforceable in the courts

• UK parliament, Canadian parliament, provincial legislatures, courts, royal prerogatives

Persuasive Sources

• create rules of the constitution which aren’t part of the constitution, meaning the court won’t enforce them because they aren’t law

• conventions, other sources

Entrenchment

• there are certain provisions in the constitution which are beyond the normal control of either the federal parliament or the provincial legislatures, i.e. they are so significant and important that they can only be changed by an extraordinary process

Patriated

amendment process for entrenched parts of constitution are wholly domestic

UK Parliament

• has produced legislation/statutes of significance to Canada

  • BNA Act of 1867 created Canada, created the framework for our constitution (courts, supreme court)

  • Constitution Act of 1982 which is a schedule to the Canada Act; charter of rights was created and allowed for patriation

Canadian Parliament

• some legislation/statutes are entrenched

  • Canadian bill of rights

  • statutes creating other provinces

  • Supreme Court of Canada

  • Governor General’s act

Provincial Legislatures

• all of them have created constitutional law

• provides the legislature of each province to make laws of the constitution laws of the province

• each province has the ability to make constitutional law, none of it is entrenched except the office of the lieutenant governor

Courts

• produce constitutional law in accordance with common law

• interpret constitutional statutes

• prior to 1982 they focused on the constitution of the division of power; since 1982 the main focus has been interpreting the charter

• once they have given meaning to the charter, thereby creating law, it is then only amendable through one of the amending formulae

Royal Prerogatives

• although defined by the court, their authority rests in the historical recognition of the crown and its prerogatives legal rights

• since the constitution act of 1982 entrenches the monarchy and the offices of governor general and lieutenant governor, any change in powers would need the use of the appropriate amending formula (and approval of legislatures/house of commons/senate)

• is the residue of the legal power residing in the crown and passing through the crown to the crown’s representatives, and includes the power to…

  • appoint the first minister

  • dismiss the first minister

  • dissolve the elected assembly

  • prorogue Parliament

  • declare war, and the power to appoint ambassadors

• governed by convention, i.e. monarch must act under advice of the prime minister

Magna Carta

• happened in 1215; forced the king into surrendering some of his powers

• could no longer raise taxes

• a contract between nobles and the king

Conventions

• guide political actors in how they function, but aren’t enforced by the court and are thus conventions of the constitution

• they aren’t contained in any written enforceable document but instead are generally accepted traditions and principles of how participants in the process should function at particular times

• Supreme Court suggested that some conventions are more important than most constitutional laws; held that constitutional conventions plus constitutional law equals the total constitution of the country

• enforceable through the political process

  • there would be scandal if conventions were violated, politicians would be thrown out

Other Persuasive Sources

• learned author writings

• Parliamentary rules/privilege or custom of parliament

• relevant judicial decisions from other jurisdictions

Federalism

• the method of dividing powers so that the general and regional governments are each within a sphere coordinate and independent

• governmental power is distributed between a central authority sometimes called a national/federal authority and several regional authorities sometimes called provinces/states; it’s distributive in such a way that every individual is subject to two authorities

• neither authority is legally subordinate to the other

• it is the legal guarantee of a legal autonomy to each of the regional authorities in respect of the areas which constitute their jurisdiction

Doctrine of Paramouncy

• requires that federal law prevails, but regional authorities are not legally subordinate

• 2 corollaries…

  • to be truly federal, a final arbitrator of constitution is required which neither level of government alone can control or appoint

  • a method of constitutional amendment in areas related to the division of power is required, which nether level of government can control

Argument - Canada is a Federal Country

1. we are subject to the laws of 2 authorities and jurisdictions assigned to both (i.e. provincial and federal)

• Notwithstanding Act allows the legislature to be able to exclude themselves from the effect of judges appointed federally using the Charter to trespass on provincial jurisdiction

2. the statutes are entrenched

3. the colonies are to be federally united (written in the BNA act of 1867)

4. there were judicial decisions that consolidated federal realities

• Hodge v. The Queen 1883

  • the provinces are not delegates of the federal parliament, the provincial legislatures are in their own spheres supreme

• Maritime Bank v. Receiver General

  • the lieutenant governor is not a merely a federal official, rather the lieutenant governor processed all the prerogative powers of the crown

Argument - Canada is not a Federal Country

• Canadian constitution is quasi-federal in law and predominantly federal in practice, meaning Canada isn’t federal

1. power of disallowance

• federal government is given the power to disallow any act passed by a provincial legislature, which is essentially a straight veto power

2. the federal government is given the power to appoint the lieutenant governor and provinces are denied the ability to alter the office of lieutenant governor, who has a significant impact on provincial legislature

3. power of reservation

• the federally appointed lieutenant governor of each province can, on instruction from the federal government, reserve provincial bills for the consideration of the governor in council in Ottawa

4. declaratory power

• federal parliament can take away the power of a province if it’s in the best interest of the country

5. remedial legislation by the federal government in the event that Roman Catholics and Protestants are deprived of their traditional rights to religious education

• power has never been used but it still exists

6. federal government power to appoint judges of the superior, and section 101 allowed the federal government to create the final appellate court of Canada and appoint the judges

7. charter of rights

• the judiciary is empowered to trespass on provincial legislative jurisdiction if the provincial legislation doesn’t meet the charter

8. the amendment process

• the 1982 amendment has made the process more federal as the formulae to amend the entrenched aspects of constitution are beyond the control of either level of government