POLS 224 The Constitution

POLS 224 The Constitution Study Notes

Overview of Constitutions

• Definition: Constitutions are fundamental frameworks governing political entities, outlining the distribution and exercise of power.

• Key Questions:

  • Who exercises power?

  • Legislative: Creates laws.

  • Executive: Implements laws.

  • Judicial: Interprets laws.

  • Where is power exercised?

  • National vs. Regional authority.

  • What are the limits to power?

  • Concepts of constitutional supremacy and rights.

Key Principles of the Constitution

• Supreme Law of the Land: The constitution is the highest legal authority.

• Liberal Democracy: Protects individual freedoms and civil liberties.

• Representative Democracy: Citizens elect representatives to make decisions.

• Constitutional Monarchy: Monarch's powers are defined and limited by law.

• Responsible Government: Government is accountable to parliament.

Federalism

• Definition: Division of powers between federal and provincial governments.

• Indigenous Treaty Rights: Recognition and protection of rights stemming from treaties.

• Emphasis on individual and group rights to ensure the protection of minority rights.

• Sanctity of the Private Sphere: Ensures personal privacy and autonomy.

• Rule of Law: Asserts that no one is above the law, and all governmental powers must be legally conferred.

Constitutional Conventions

• Definition: Unwritten rules that guide political behavior; they are enforced by voters.

• Types of Laws:

  • Constitutional Laws: Enforced by courts.

  • Organic Statutes: Strength varies based on context.

  • Judicial Opinions: Interpretations that impact governmental actions.

• Fundamental Concepts:

  • Responsible Government: Ministers accountable to parliament and citizens.

  • Ministerial Responsibility: Ministers must explain their actions to parliament.

  • Cabinet Solidarity: Collective responsibility of the cabinet members.

Judicial Independence

• Essential for maintaining the rule of law and protecting rights.

The Canadian Constitution

• British North America Act (BNA) 1867:

  • Created Canada as a dominion but specified that Canadians remained British subjects.

  • Defined the structure of government and the division of powers.

• Constitutional Structure:

  • Executive Power: Government and administration.

  • Legislative Power: Parliament and law-making bodies.

  • Provincial Constitutions: Localized governance structures within federalism.

  • Judicial Power: Courts and legal interpretation.

• Ca 1982 Charter of Rights and Freedoms: Introduced protections for individual rights and is an essential aspect of the Constitution.

  • Indigenous Rights: Enshrined within the constitutional framework.

Amending Formula

• General Rule: Requires 7 provinces with at least 50% of the population to amend the constitution.

• Other forms include:

  • Unanimous agreement: Requires all provinces for significant changes.

  • Specific provincial requirements for certain matters.

Historical Context and Amending Challenges

• Patriation of the Constitution: The movement to transfer constitutional authority from Britain to Canada.

  • Popularity and difficulties in execution.

  • Prime Minister Pierre Trudeau's role in advocating for a bill of rights and bilingualism.

• Constitutional Negotiations:

  • "The Kitchen Accord": Led by Premier René Lévesque; focused on expanding provincial rights over natural resources.

• Rights of Indigenous Peoples:

  • The Constitution validates treaty and inherent rights.

  • Basis established by royal proclamations and dialogue on land claims and treaties.

Amending Formula Details

• Different formulas for various contexts:

  • Five Amending Methods:

  1. Parliament + 7/50

  2. Unanimous agreement for major issues.

  3. Provincial government standards.

  4. Parliament alone.

  5. Single province alone.

Failed Constitutional Accords

• Meech Lake Accord:

  • Aimed to incorporate Quebec's distinct society into the Constitution but failed to secure support in key provinces.

  • Required unanimous consent within three years.

• Charlottetown Accord:

  • Broader framework focusing on indigenous self-governance and limits on federal jurisdiction; defeated in a referendum.

Quebec Referendum and the Clarity Act

• 1995 Quebec Referendum:

  • Questioned whether Quebec should become a sovereign nation.

  • Supreme Court response indicated Quebec could not secede unilaterally without negotiation if a clear majority supported it.

  • Clarity Act (2000): Defined the parameters for what constitutes a clear majority and clear question for future referendums.

Need for Rights Documentation

• Historical instances highlighting the need for defined rights, such as:

  • Bible Bill Aberhart and the Press Act (1937): Government restrictions on critical media.

  • Japanese Internment during WWII: Human rights violations.

  • Sex Sterilization Act: Laws mandating sterilization in certain demographics.

• Charter of Rights and Freedoms:

  • Ensures:

  • Freedom of religion, conscience, thought, belief, opinion, expression, media, assembly, and association.

Section 1: Reasonable Limits

• Charter Guarantees: Rights are subject to reasonable limits, justified in a democratic society.

• The Notwithstanding Clause (Section 33): Allows legislatures to override certain provisions in specific situations, adding complexity to civil rights protections.