pols 1000 lec.1

Introduction

The constitutional foundations of the canadian state

Constitutional rules

written/ unwritten

  1. Entrenched constitutional law- the 1867, 1982, canadian charter of rights and freedoms, not easily changed/modified
  2. Non-entrenched law- election act, supreme court act, indian act, aboriginal rights, constitutional veto act
  3. Judicial decisions- only those decisions that interpret the constitution, judiciary often invited to give meaning to these rights, division of powers, charter rights and freedoms

Conventions:

Constitutional practices that develop over time and are accepted as legitimate constitutional practices- can be ignored, not legally enforced, however political actors have the duty to enforce them

Equal in status to written rules

Not legally enforceable- supreme court of canada said not enforceable by law but supported by political actors

Provide flexibility, allows constitution fated in the 19th century to adapt and evolve to present time

Ex. office of prime minister- not mentioned in constitution but most powerful actor in canadian democracy

Appointment of a prime minister

Defeat of a government, must resign party upon loss of confidence in the house of commons

Prime minister is not elected- the party leader whose party has the most seats is

Appointed

Position of prime minister is not mentioned in the written constitution of canada

Each political party has its own constitution

British North America Act- 1867

Sect 91-92

Adoption of the westminster system

All political power resides in the crown, more than just the monarch

Main constitution until 1982

Act of the british parliament, every time it wanted to amend the constitution it would have to ask the british parliament

The constitution act-1982

Does not replace the british constitution

Adds: charter of rights and freedoms (ss. 1-34)

Aboriginal rights(ss. 35)

Equalization payments- distribution of wealth(ss.36)

Domestic amending formulae( ss.38-48)

Natural Resource amendment (s.92 a)

Organizing principles

Federalism

2 orders of government that are independent and autonomous from each other.

Sec.91-92 of the bna act establish canada's federal structure

Provinces were given powers of a local nature

Reasons for the choice of federalism

- protection of cultural identities- quebec, maritimes were independent

- maintenance of local autonomy

Fathers of confederation wanted to avoid the mistakes of the USA

Blamed the american civil war (1861) on the states having too much power

Evolution of canadian state

Democracy

In purely formal constitutional terms, canada is not a democratic country, but a constitutional monarchy

Ss.9-16 BNA act provides all formal power is invested in the crown

Pm is making important decisions

Must get royal approval for new bills

Parliamentary democracy

S.17 of the BNA act defines the parliament as 3 components

  1. The crown
  2. The upper house styled the senate
  3. The house of commons

Parliamentary democracy is based on a fusion of power as a result and not a separation of powers

US- system of checks and balances

Government with a majority government is almost unstoppable

Responsible Government

A foundational principle of parliamentary democracy is responsible government

A constitutional convention

A government retains office so long as it has the confidence of the house of commons( supported by a majority)

A government only remains in office if a majority of MPs give that government confidence

Governor general can refuse request for an election

Representative institutions

Until recently, convention provided for freely elected legislative bodies in canada

Since confederation, canadian democracy has moved toward the goal of universal suffrage and more effective representation

S.3 charter of rights provides the right to vote.

Rule of Law

The law is supreme over the acts of both government and private persons

The creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle and normative order- no secret laws, accessible to all knowledge

The exercise of all public power must find

Constitutionalism

Constitutional supremacy

The essence of constitutionalism in canada is embodied in s.52(1) of the constitutional act 1982

Protection of minorities

Bna 1867

Languages of the legislatures and courts(s.133)

Denominational rights(s.93)

Federal structure(ss.91-95)

Constitution act 1982

Minority linguistic rights(ss.16-24)

Aborigininal rights(ss. 25 and 35)

Multicultural heritage(s.27)

Key terms

  • Written and unwritten constitutional rules
  • Conventions
  • Federalism
  • Division of powers
  • Fusion of powers
  • Responsible government

Debate  topic- whether or not canada should keep the british monarchy