Constitution Act 1867 1982 - Public Law

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

   1. 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

I: is it constitutional for P to pursue constitutional amendments without consent of all provinces affected?

D: No sufficient consent from provinces. Patriation act would have to be accepted by an agreement of a substantial number of provinces (quantity not indicated) for constitutionality.

Reasons: Provinces are not subordinate to the federal government. Since there is no constitutional convention on amending the constitution, the court looked to 3 part test to establish convention: 1) What do the precedents say (all required consent from provinces), 2) did actors believe they were bound by rules, 3) is there a reason for the rule? If feds are able to act how they please, notion of federalism is debunked. A constitutional convention was established because constitutional amendments required the substantial approval of provinces that it affected.

Result:

Quebec Veto Reference: asked the court what “substantial” consent meant. Court indicates that substantial does not denote unanimity, so Quebec, and no other province received a veto.

Reference Re Quebec Secession 1998 SCC

RATIO: Federalism is an unwritten principle in the constitution. The goal is not to subordinate the provinces to central authority. There are four foundational aspects in our constitution: federalism, democracy, constitutionalism and the rule of law and respect for minority rights. These elements are equally important and demonstrate our adherence to the living tree doctrine associated with the constitution. A written constitution provides certainties, but we also require principles that help fill in gaps of expressed terms.

Reasons:

• decided case on rule of law, constitutional supremacy and democracy

• Quebec cannot secede unilaterally, and they cannot be kept in unilaterally, so they have the option to issue referenda, and if successful, there is a reciprocal obligation to negotiate so long a there is a clear majority on a clear question

• The diversity at Confederation is what resulted in compromise with the provinces so Quebec still holds ability to pose referendums

• Simple majority decided through rule of law (because Quebec cannot just side step constitution, democratic governance)

• We cannot allow one government to usurp power otherwise constitution is defeated (federalism principle)

Reference Re Assisted Human Reproduction Act 2010 SCC

Facts: Act prohibits human cloning, use of in vitro embryos without consent, etc.

AG of Quebec challenging parts of the law on constitutionality because they are ultra vires and appear to regulate medical sector.

D: appeal allowed in part; certain sections were deemed unconstitutional.

Reasons: The statutory scheme is constitutional on certain parts, but assisted human reproduction can be overlapping in jurisdiction. The intent of the act is to prohibit practices that degrade and devalue human life. There are concerns for security target (criminal law). Erosion of provincial scope in creating laws would amount to federal paramountcy which has largely been eroded.

Theme 2: Constitutional Interpretation and the Judiciary

Note Caveats to the Charter: S. 33 (parliament or a legislature using this to say that an act is null and void for a period of 5 years, only applicable to s. 2, ss. 7-15) and S. 1

Graham Fraser: What the Framers of the Charter Intended

• Framers of the Charter remainder involved in the evolution of its framework

• Chretien resorted to the courts on the issue of discrimination of sexual orientation which didn’t have a place in Charter politics (the PM left the constitution open for interpretation)

• Debate on how to read the Charter prevails today (literal v broad)

• Law Society of Upper Canada v Shapinker: first Charter case; Charter was defined as a work in progress and the BNA as a living tree capable of growth

Constitutional Lenses:

1. Historical/original (advantages: constrains role of courts, leaves greater power in hands of legislature, brings more certainty to law)

2. Living tree/progressive

CASE LAW RE: CONSTITUTIONAL INTERPRETATION AND THE JUDICIARY

Edwards Case (Persons Case, 1930) JCPC

Decision: 1) Women eligible to sit in the Canadian Senate and 2) constitution should embody living tree

The JCPC reversed the decision of the SCC taking a more broad look at the constitution. It determined that we must look at the act itself to see if it’s ambiguous by considering the Framers’ intent. The ambiguity concerned “persons”. The UK looked to BNA as a whole and said that if the legislature intended to bar women from the Senate, it would have referred to men and expressly limited women’s rights. Like all written constitutions, ours is subject to conventions and must evolve with a growing interpretation.

Theme 3: Constitutional Amendments

Before 1982, there was no domestic amending formula and any amendments needed to be done by way of the UK Parliament since the BNA was an Imperial Statute of the British Parliament. There were only 2 amendments prior to 1982 that were made to BNA 1867: entry of NF as a provinces, and changes to formula of seat distribution between House and Senate. Eventually, this trouble led to the Patriation Reference, and finally Part V of the Constitution Act 1982. This amending formula requires a super majority to protect the minority from the majority.

The CA 1982 has allowed constitutional amendments and within it is the Charter, which has been entrenched in the constitution.

There are 5 General Amending Formulae in the...