This is an extract of our Constitution Act 1867 1982 document, which we sell as part of our Public Law Notes collection written by the top tier of University Of Ottawa students.
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PART IV: CONSTITUTION ACT 1867, 1982 The Constitution is the supreme law of the land and its supremacy flows from s. 52. Charter only applies to state relations, and not private actions. There are both written and unwritten constitutional principles. Written principles: s. 52. CA is the supreme law of the land and includes written documents like CA 192 and BNA. It creates the country, its structure, and preserves constitutional supremacy. Unwritten Principles: a) Principles: rule of law, parliamentary supremacy. b) Constitutional Conventions: political figures create them. Courts say that they do not enforce conventions, but that they can be identified. Both of these address gaps in interpretation of constitution and its archaic language. They allow for the constitution to adapt with society, and give courts wider rooms for interpretation. If there is inconsistency with these principles, legislation can be deemed of no force or effect. Effects of Applicability of Charter:
* applicable to Parliament, legislatures, federal and territorial/provincial governments
* constitution not applicable to judicial decision making (decisions are open to appeal, but not constitutional scrutiny)
* not applicable to private relations so human rights codes cover Consequences of Constitutional Supremacy: 1) legislative acts or omissions can be scrutinized 2) executive acts can be deemed invalid 3) implications on private law development 4) powers of administrating constitution with courts and administrative bodies 5) common law evolves in a way that is consistent a. ex. Pepsi Cola v Retail Wholesale Dept Stores Union 2002 SCC: up until this case, secondary picketing was prohibited, but common law said that you cannot prohibit it. Decision: Common law applies generally, whether or not the government has legislated in a certain area. Ways to Establish a Constitutional Convention 1) practice or agreement that's been developed by political actors 2) recognition of political actors that they are bound by convention 3) must show purpose to convention CASE LAW DEALING WITH CONSTITUTIONAL CONVENTIONS Patriation Reference 1981 SCC Facts: gang of 8 provinces disagreed with Trudeau amendments of patriation of the constitution
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