Interpreting The Division Of Powers

· Federalism: The division of powers between the federal government (who cover matters of national concern) and the provincial legislatures (who govern with regards to matters of local concern)

· Individual and group rights: Claims that citizens, as individuals, have against the state

· Aboriginal rights: Rights recognized by the constitution as belonging to aboriginal peoples as the first peoples of Canada

· Rule of Law: Expectation that governments will exercise power according to law and not in an arbitrary manner

The Sources of the Canadian Constitution

· Written Documents: Imperial Statutes such as the BNA Act 1867 or the Canada Act 1982; the 8 statutes entrenched in the constitution creating the provinces, etc.

· Case or Common Law: Ex: Person’s Case

· Prerogative and Privilege: Powers that the common law gave to parliament, and the crown prerogative

· Conventions: Unwritten traditions and habits that are not legally enforceable, but are politically powerful.

· Unwritten Principles: Legally enforceable but so important that they are not explicitly written in the constitution (ex- Democracy)

Constitutional Change

· Rules for constitutional change are found in part V of the Constitution Act, 1982

· Formal change requires the approval of the federal parliament and at least two-thirds of the provincial legislatures representing at least 50 percent of the population.

· Other forms of change can evolve through judicial interpretation, the use of spending powers, etc.

II.) History of the Canadian Constitution

Doctrine of Reception

· British Settlers brought with them the English law which became the initial law of the colony. After a certain date, the colony could choose to adopt or reject new British laws

Imperial Parliament

· Alternative title for the Westminster parliament when making laws for the overseas territories of the British Empire. Enactments were called Imperial Statutes.

Doctrine of Repugnancy

· Imperial statutes were binding on the colonies and unamendable by the colonial governments due to the imperial statute’s force as an expression of colonial power.

· Was in place until 1982

Doctrine of Suitability

· British statutes that were clearly unsuitable for application in the colonies were not in force in the colonies. It was left to the colonial courts to determine which statutes were deemed to be unsuitable.

Canada ’s Path to Independence

· 1865: Colonial Laws Validity Act: Doctrine of repugnancy still applies

· 1867: British North America Act: Created the dominion of Canada, but Canada retained colonial status, and the statute was only amendable by the Imperial Parliament.

· 1931: Statute of Westminster: No imperial statute would apply without the request of the colony; CLVA and doctrine of repugnancy repealed allowing colony to legislate with respect to Imperial statutes, with the BNA act as an exception (as it’s our constitution and it would have been hell if they did away with it)

· 1982: Canada Act: End of imperial power in Canada. Repeals statute of Westminster and gives Canada independence.

III.) The Nature of Constitutional Law

Reference Re: Secession of Quebec

· FACTS: In the patriation of the constitution, Quebec was left out, and as a result attempted to secede multiple times, provoking the federal government to direct a reference to the SCC.

· ISSUES:

o Does the Constitution of Canada allow Quebec to unilaterally secede from Canada? NO

o Does international law give Quebec the right to secede unilaterally? NO

o Would international law or the Canadian constitution take precedence in the case of conflict? NO NEED

· RATIO: There are unwritten principles in the constitution that inform this decision. Particularly, Federalism, Democracy, the rule of law, and respect for minorities. As unilateral secession violates these principles, it cannot be allowed.

· UNRESOLVED ISSUES: No amending formula, no specifics about what would constitute a clear question; No information regarding parameters of the negotiation of secession, and explanation of the rights of minority groups in the area that wishes to secede.

John Whyte: Oral Argument; Secession Reference

· Quebecois secession would tell the world that the Canadian tools to create a thriving multicultural nation have failed; and call into question the rule of law, democracy, federalism, and respect for minorities.

· When these interests are at stake, the constitution requires formal mediation through one of the multilateral processes; as such, unilateral secession is not tolerable as per the Canadian constitution.

· “A nation is built when the communities that comprise it make commitments to it, when they forego choices and opportunities on behalf of a nation, when they discover within the nation new opportunities, when the communities that comprise it make compromises, when they offer each other guarantees, when they make transfers and, perhaps most pointedly, when they receive from others the benefits of national solidarity. The threads of a thousand acts of accommodation are the fabric of a nation. The net result is a structure of strong and important interests and its dismantling requires the participation of those whose histories include the building of this political identity.”

Clarity Act

· RATIO: In order for a referendum Re: Secession to stand, the question must be approved for clarity by the federal government within 30 days of being set; if the federal government finds there is a clear majority to denote a win; and if not, negotiations cannot take place.

BC v. Imperial Tobacco

· FACTS: BC passed an act that allowed them to collect damages from Tobacco companies for healthcare costs, which the Tobacco companies contested for being unconstitutional.

· ISSUE: Is the Tobacco Damages and Health Care Costs Recovery Act constitutionally invalid for offending the rule of law? NO

· RATIO: The rule of law comprises three elements: a recognition that the law is supreme over both governments and the people; the creation of an order of positive law; and that the relationship between the state and the individual must be structured through law. Only if a law violates these principles can it be invalidated on these grounds. A broader interpretation would violate the 4 principles of the constitution.