POLI week 2- constitutions

POLI 1P98 Lecture 2.1: The Canadian Constitution- The Master Institution

Three Main Institutions of Canadian Government

  • Institution- a set of legal and normative rules (norm- ideas) (legal- constitution itself), determines who makes public policy, and tells us what policy actors are allowed to do and  not to do

  • Three main institutions in Canada: 

1.  Parliamentary Government 

  • House of Commons (representative member that we vote for ex. Chris Bittle)

  • Senate (appointed)

  • Fusion of powers system- our executive branch is fused with the legislative branch

  • PM is the head of government

  • The Crown in the head of state

  • There is a principle called responsible government- the idea that the PM has to maintain confidence in the house of commons

2.  Federalism

  • Canada has two sovereign levels of government that each have their own powers (fed and prov.)

  • Federalism- is the division of powers

    • Ex. healthcare is Provincial, Military is Federal

3.  Constitutionalism

  • The constitution is what we call the master institution because it shapes everything

  • Constitutionalism- means that we as a country believe that the constitution is our law, we have govt officials that abide by the constitution, and we have courts that inforce the constitution


Constitutions

  • Constitution: 

    • The highest level of law in a political system 

    • Constitutional law trumps all other types of law (ex. CCC), the constitution is supreme

    •  Contains rules about how political power is structured, exercised and constrained 

      • Rules for making rules

  • Constitutions are rarely just single documents 

    • Written and unwritten documents

  •  Constitutions are intended to be relatively permanent 

  •  The written parts of constitutions can be changed through the use of amending formulae


Is it in the Constitution?

  • Senators must be 30 years old and own $4,000 worth of property 

    • true

  • The federal government can veto provincial legislation that it does not like 

    • Technically true- disallowance clause, but we haven’t used it in a very long time

  • The PM is appointed by the Crown, not elected by the people 

    • True on a convention

  • Same-sex marriage rights are protected

    • True based on judicial decisions (anologuos grounds)


Constitutionalism

  • Constitutionalism: when the actors in the political system recognize the constitution as legitimate, play within its rules, and accept the judiciary’s role in interpreting the constitution. 

  • “Constitutional monarchy” 

    • King is the head of state, and that power of the crown is entrenched in both the law and the constitution

  • Elements of Constitutionalism: 

    • Rule of Law- equal before and under the law

    • Constitutional laws trump all other laws 

    • Judicial interpretation of the constitution


Constitutions and Courts

  • Constitutions require enforcement and interpretation 

  • Usually by courts – independent dispute resolution through law 

  •  Judicial review: when judges decide whether state actions are legal 

  •  Remedies: striking down; reading in 

    •  Example: Carter v. Canada [2015]; Miron v. Trudel [1995]

POLI 1P98: Lecture 2.2- How the Canadian Constitution Shapes Policymaking

Sources of Canadian Constitutional Law

  1. Entrenched constitutional law 

  2.  Non-entrenched constitutional law (Profound Impacts- Apart of institutional law)

  3. Constitutional conventions- Unwritten Principle viewed by political actors in terms of working, ex. If PM violates one of these conventions he is seen as untrustworthy)

  4.  Judicial decisions


Entrenched Constitutional Law

Two most important entrenched constitutional documents:

1. Constitution Act, 1867 

  • Canada’s founding constitutional document 

  • Contains the federal division of powers (s. 91-95) and ensures that Canada has parliamentary government (preamble) 

2. Constitution Act, 1982 

  •  Contains the Canadian Charter of Rights and Freedoms (s. 1-32) and the notwithstanding clause (s. 33) 

    • NTWS- allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter.

  • Protects existing indigenous rights (s. 35)


Example of Notwithstanding Clause Usage

  • 2023: Saskatchewan Government 

  • Invokes NTWS to prevent children under 16 from changing names or pronouns at school w/o parental consent (“Parents’ Bill of Rights Act”)


Non- Entrenched Constitutional Law

  • Two prominent examples: 

    • Supreme Court Act, 1875 

    • Clarity Act, 2000


Constitutional Conventions

  • Two prominent examples: 

    • Confidence convention 

    • Ceremonial role of the Crown


Judicial Decisions

  • Pre-Charter court cases: 

    • Series of cases on the federal-provincial division of powers 

  • Post-Charter court cases: 

    • The courts have taken an active role in expanding Canadian citizens’ Charter rights


Case Study: Canada (AG) v. Bedford 2013

  • Laws relating to sex work are unconstitutional as they jeopardize s.7 security of the person 

    • S.210: indictable offence to keep a bawdy-house

    •  S.212(1)(j): prohibits living off the avails of prostitution 

    • S.213(1)(c): prohibits communicating in public for the purposes of prostitution (solicitation)


Policy Response: Bill C-36, Protection of Communities and Exploited Person’s Act

  • For the first time in Canadian criminal law, Bill C-36 criminalizes the purchase of sexual services 

  •  Section 286.1: “Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of an indictable offence.”


Impact of Constitutional Law

  • Constitutional supremacy means that public policy must adhere to constitutional law in all of its forms 

  • Post-Charter impact on public policymaking has been massive 

    • “Legalized Politics” and “Judicialization”