The Canadian Constitution Home || Course Description || Class Schedule || SFU Library Catalogue || Web Resources |
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Course ScheduleJan 8: Information Session. No Readings.
Jan 15: Canada's Constitutional History Readings:
For maps of Canada's territorial evolution, visit the National Atlas of Canada. Key dates in Canada's Constitutional History: 1670 - The Hudson's Bay Company was granted its Charter and rights to 1,486,000 square miles, equalling 38.7% of Canada's land mass today. 1763 - The legal end of warfare between Britain and France 1774 - The Quebec Act - restored the French Civil Code as the basis for private law in Quebec, also protected the rights of Catholics and French language. 1791 - The Constitutional Act, 1791 - divided Quebec into Upper Canada (Ontario) & Lower Canada (Quebec) as separate colonies 1838 - Lord Durham reports on the political troubles in Upper & Lower Canada. He argues that the French should be assimilated and the best way would be to re-united the two provinces. 1840 - The Act of Union, 1840 - combined Upper & Lower Canada into one province of Canada. 1865 - Colonial Laws Validity Act - prevented colonial legislatures from amending or repealing laws passed by the Imperial Parliament; also provided that colonial laws that conflicted with Imperial statutes would be invalid. 1867 - Confederation: Nova Scotia, New Brunswick, & the Province of Canada combine into the Dominion of Canada. The Dominion was created by the British North America Act, 1867 (The BNA Act); this law is now referred to as the Constitution Act, 1867. 1870 - Rupert's Land and North-Western Territory Order - a Royal Order that the lands of the Hudson's' Bay Company be incorporated into the Dominion of Canada. 1923 - Halibut Treaty: The first international treaty negotiated by Canadian representative without British involvement. The Halibut treaty was reached with the United States. The treaty was still signed by the King as Emperor. 1926, 1929, 1930 - Imperial conferences which established the political autonomy of the self-governing Dominions. Included in the agreements was one that the Dominions could chose their own Governors General. The 1926 Imperial Conference resulted in the "Balfour Declaration:"
The 1930 conference decided that the King would be advised by the relevant Dominion government on the appointment of future Governors General. 1931 - The Statute of Westminster: provided that legislation passed by the Dominion Parliaments could amend or repeal legislation passed by the Imperial Parliament in London. The big exception was the collection of British North America Acts, which could still only be changed (for the most part) by the British. Imperial legislation would only apply to the Dominions if they had consented to it. 1937 - The abdication of Edward VIII 1939 - The King declares war separately for Canada. 1947 - New Letters Patent for the Canadian Governor General 1949 - The Supreme Court of Canada finally becomes the last court of appeal for Canada, replacing the Judicial Committee of the Privy Council in London. 1982 - The Canada Act, 1982 passed by the British Parliament ends any further British legislative authority over Canada. That Act included the Constitution Act, 1982, which provided the Charter of Rights and a Canadian process for amending the Constitution. Despite the Canada Act, 1982 having severed British Parliament authority to pass laws with respect to Canada, there are still several colonial remnants left in the Canadian Constitution. In s.55 of the Constitution Act, 1867 the Governor General is authorized to reserve a bill for review by the British government, when it is presented for royal assent by the Governor General; s.57 says that the British govt has up to 2 years to decide of reserved bill should get royal assent. Section 56 requires the Governor General to send copies of all laws passed by the Canadian Parliament to the British government, which has up to 2 years to disallow the legislation. See the summary chart of Canada's evolution from colonial status Jan 22: Content of Canada's Constitution Readings:
The formal Constitution of Canada is defined in s.52(2) of the Constitution Act, 1982. The Constitution is comprised of 26 statutes and 10 amendments made since 1982. However, many important elements of the political system are either left completely out of the formal Constitution, or are only incompletely dealt with. The provisions of the Constitutional are often archaic or lack crucial details. The whole constitution of Canada involves all the rules, customs, and principles relating to the structure and exercise of government power in Canada. The constitution includes all documents of the formal Constitution, as well as a wide range of other laws, judicial decisions, and informal rules called constitutional conventions. Examples of important court cases on the constitution include the Supreme Court of Canada's decision on Patriation in 1982 and on Quebec separation in 1998. Main principles of the Canadian constitution:
Formal Constitution described in s.52: The Canada Act, 1982 plus 24 other statutes and orders-in-council listed in the Schedule to the Constitution Act, 1982 (30 are listed but 6 of those were mentioned only to be repealed).
The two main constitutional documents that define the powers of Canadian governments are:
Powers of the Crown:
Canadian governmental authority divided by the Constitution between the federal government and the ten provinces.
The Constitution Act, 1867 provides a fundamental division of all legislative jurisdiction between the federal and provincial governments. The original division of powers intended for most of the important areas of public policy to be assigned to the federal government, and mostly local and private matters assigned to the provinces. Areas of concurrent jurisdiction: agriculture, immigration, and pensions. Provincial law paramount for pensions, in all others it is federal paramountcy in event of conflicts between federal and provincial laws. Until mid-20th century, Canada was described by some commentators as "quasi-federal", because of the subordination in the Constitution of provincial legislatures to federal government actors. But each of these factors has changed:
Three other provisions of the Constitution also contributed to the provinces' legal subordination to federal government:
Canada's originally centralized system of federalism has changed over the years because of: judicial decisions, changes in constitutional conventions, political practice (including federal spending power), and the growth in importance of areas originally assigned to the provinces (i.e. education & health care). Key judicial rulings on:
Jan 29: Legal Research and Judicial Reasoning Readings:
Class Notes on Legal Research: The full text of judicial decisions (law reports) can be found in old fashion book & paper form in the SFU Library. The Reference Department of the Library has prepared several useful documents to help you with your research.
A very useful printed index series is available in the Reference Section of the SFU Library (on North side of the main floor), called the Index to Canadian Legal Periodical Literature; it's call number is K9 N39. A annual volume is published indexing articles published in Canada on Canadian legal and constitutional issues. The full text of recent decisions of several Canadian courts are available on the Internet. SFU's subscription to LawSource provides online access to the full text of many judicial decisions. You can also find the full text of the laws of the federal government and several provincial governments on the Internet. Doctrines of Judicial interpretation:
General matters in constitutional interpretation Principles used by judges in examining legislation to see whether it has been passed legitimately under the constitution's division of powers between the federal and provincial levels of government:
Feb 5: Division of Powers - POGG, Delegation & Criminal Law Readings:
Class discussion question: Using what you've learned last week about judicial reasoning and interpretation of the Constitution, would you classify as intra vires or ultra vires Alberta's Senatorial Selection Act under which elections were held in 1989, 1998 and 2004? Delegation Subordinate / delegated legislation created by an official or body authorized by the legislature to pass laws on a certain subject:
Legislative & administrative inter-delegation between federal and provincial governments can be problematic from a constitutional perspective. In Re Gray (1918) 57 SCR 150, the Supreme Court of Canada upheld the War Measures Act. However, it laid down potential barriers to delegation:
Legislative inter-delegation between federal and provincial governments is problematic. The Supreme Court of Canada ruled that one level of government cannot simply delegate its legislative authority to the other. The Nova Scotia Inter-Delegation Case A.-G. N.S. v A.-G.Can. [1951] S.C.R. 31 dealt with a scheme to delegate provincial pension authority to Parliament, but it was struck down. However, one level of government can delegate authority to an administrative tribunal created by the other level of government. For example, the federal government has delegated the licensing of inter-provincial carriers to provincial transportation bodies and directed them to apply applicable provincial laws. This was upheld in Coughlin v Ontario Highway Transportation Board [1968] S.C.R. 569 Referential legislation incorporates laws passed by the legislature of another jurisdiction. This device has been upheld by the courts. The problem of delegatus non potest delegare. POGG Power - Peace Order and Good Government - is found in the introduction to s.91 of the Constitution Act, 1867. Three POGG power doctrines developed by the courts:
Criminal Law Jurisdiction over criminal matters is divided between the federal and provincial governments by the Constitution Act, 1867: s.91. Federal legislative powers s.92 Provincial legislative powers An on-going problem for provincial governments arises with the allocation to the federal parliament of jurisdiction over "criminal law" by s.91(27) of the Constitution Act, 1867. Early JCPC rulings covered a range of interpretations of the federal criminal power: According to Hogg, Viscount Haldane’s 1922 judgment in the Board of Commerce case appeared to limit federal criminal law to what was criminal in 1867. Haldane said the criminal power is relevant “where the subject matter is one which by its very nature belongs to the domain of criminal jurisprudence.” In 1931 Lord Atkin greatly broadened scope of criminal law in P.A.T.A. case to the traditional English conception: “The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?” This interpretation was replaced by the JCPC in the Margarine Reference in 1951. The JCPC followed the reasoning of Mr. Justice Rand in the SCC decision on the case. Rand J. stipulated three elements for classifying criminal law in Reference re Validity of s.5(a) of the Dairy Industry Act (Canada), [1949] S.C.R. 1 at 50 (also known as the Margarine Reference:
In RJR-MacDonald Inc. v. Canada (A.G.), [1995] 3 S.C.R. 199, La Forest J said that a wide interpretation shoudl be given to criminal powers. He added that the public purpose in the Margarine test should be framed in terms of “whether the prohibition with penal consequences is directed at an ‘evil’ or injurious effect upon the public.” The scope of criminal law has covered a number of ‘undesirable commercial practices’ – SCC upheld Criminal Code provisions on circulating a false prospectus: Smith v. The Queen [1960] SCR 776. Federal “criminal law” is not restricted to the Criminal Code. Criminal prohibitions are found in a variety of Acts. Applications of criminal law: In Biggs v The Queen [1981] 1 SCR 49 the SCC struck down Criminal Code provision creating offence for driving while a driver’s licence is suspended. Prohibition against tobacco advertising and requirements for tobacco packaging upheld. RJR MacDonald [1995] 2 SCR 199 SCC struck down compulsory ingredients in Federal Food & Drugs Act. Stipulations of what should go into Light Beer were struck down in Labatt Breweries v. A.G. Can. (1979), [1980] 1 S.C.R. 914. Non-medicinal use of narcotics prohibited by Narcotic Control Act was held to be POGG, not criminal: The Queen v. Hauser, [1979] 1 S.C.R. 984. This decision has been roundly criticized for failing to situate narcotics in criminal law. It was effectively overturned in R. v. Malmo [2003] 3 SCR 571, which held that laws prohibiting possession of marijuana was based on criminal power, not POGG. Canadian Environmental Protection Act upheld as criminal in R. v. Hydro Quebec, [1997] 3 S.C.R. 213
Feb 12: Spring Break! No classes
Feb 19: Mid-Term Test AND Constitutional Amendment
Readings:
Just what is the "Constitution of Canada" is defined in s.52 of the Constitution Act, 1982 and the Schedule to that Act. However, the list of documents in not exhaustive, and some important legal documents are left out (such as the Supreme Court Act and the Letters Patent). The sections of the Constitution Act, 1982 that lay out the various ways to amend the Constitution are found in Part V. The constitutional amendment processes available are: s.38 - agreement of the assemblies of 7 provinces with 50% of the total population - plus Parliament. s.41 - the unanimous consent of all provincial assemblies plus Parliament s.43 - the consent of Parliament plus one or more provincial assemblies to which an amendment applies if that amendment does not apply to all provinces (except matters which require s.38 or s.41 process) s.44 - Parliament may act alone to amend the Constitution of Canada in relation to the executive of Canada or to the House of Commons or Senate (except matters that require either s.38 or s.41) s.45 - the legislatures of a province may make laws amending the "constitution of the province" (except matters that require unanimous approval under s.41) Since these amending formulas came into effect in 1982, there have been ten formal amendments to the Constitution of Canada:
The right of Quebec to secede from Canada was dealt with by the Supreme Court of Canada in the Quebec Secession Reference rendered in 1998. The federal government then enacted the Clarity Act in 2000, ostensibly to limit the federal government from negotiating separation unless it had already been approved by a 'clear majority' voting on a 'clear' question in a referendum. In response, the Quebec National Assembly passed An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State. History of Constitutional Amendments Prior to 1982, most changes to Canada's formal constitutional documents had to be achieved through legislation by the Imperial Parliament in Britain. An opportunity to provide for domestic amendment to the British North America Acts (and other related imperial statues) arose at the time that the Statute of Westminster was being negotiated. However, agreement could not be reached. Later attempts to create a domestic amending procedure were debated in the 1960s and 1970s, notably:
Later proposals to amend the basic constitution or institutions came with:
Feb 26: Trade & Commerce + Property & Civil Rights Student Presentations:
Readings:
Trade & Commerce Important additions to Canadian constitutional law are found in the judicial decisions interpreting the apparent conflict between the federal trade & commerce powers and the provincial property & civil rights powers. Section 91 of the Constitution Act, 1867 gave the national parliament jurisdiction over the following economic matters:
However, s.92(13) gave the provinces jurisdiction over
"Property and civil rights in the province." Other
powers over economic
issues are provided by two other provision in s.92: 10. Local Works and Undertakings other than such as are of the following Classes:-- (a) Lines of Steam or other Ships, Railways, Canals, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province; 11. The Incorporation of
Companies
with Provincial Objects. A seminal case by the Judicial Committee of the Privy Council, Citizens' Insurance Co. v. Parsons (1881) 7 App.Cas. 96,, held that the federal power over trade & commerce did not include "The power to regulate by legislation contracts of a particular business or trade, such as the business of fire insurance in a single province" (at. 113). Trade & commerce was said to include:
A limited view of the trade & commerce power prevailed through the 1920s. In the 1922 Board of Commerce case, Viscount Haldane came close to characterizing trade & commerce as an ancillary power. Several decisions by the Supreme Court of Canada have since outlined what may be meant by the 'general' trade & commerce power first alluded to in Citizens' Insurance. The 1976 Vapour case set out three points:
The 1989 General Motors case added two more:
Mar 5: Constitutional Conventions Student Presentations:
Readings:
Constitutional conventions play a vital role in Canada's constitutional framework. The legal structure outlined in the various constitutional documents is very archaic and incomplete. Even in 1867, one needed to refer to conventions to understand how the Canadian structure of government was supposed to operate. Conventions can arise in several different ways:
Traditional views of conventions separated them strictly from law. Conventions are rules of political morality that are not to be enforced by the courts. Three views of conventions 1) Some authors view conventions essentially as guidelines without rigid terms and clear duties. 2) The traditional view of conventions holds that they are rules that arise out of political practise. The practice becomes a rule when it is clear that political actors consider themselves obligated
3) Conventions may also be viewed as rules created by obligations to protect basic constitutional principles. For external morality there must be a broad consensus of opinion, covering the ‘attentive public.’ Discussions of conventions often canvass academics, judicial decisions, retired politicians, political commentators, editorials, etc. |
The
Law
Reports hand out (