This course was taken with Professor Michelle Flaherty at the University of Ottawa. It is a mandatory first year course for J.D. 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.
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:
legislative acts or omissions can be scrutinized
executive acts can be deemed invalid
implications on private law development
powers of administrating constitution with courts and administrative bodies
common law evolves in a way that is consistent
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
practice or agreement that’s been developed by political actors
recognition of political actors that they are bound by convention
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.
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.
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...
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