Constitutional Law

Constitutional Law

A body of law that prescribes the extent and limits of state authority

Charter of Rights and Freedoms (1982)

A body of law that prescribes the extent and limits of state authority (Documents, case law, conventions). Examples of limits, extent of powers of authority of state

Ultra Vires

Beyond/outside the powers of jurisdiction. Usually refers to s.91 and 92 of the Constitution Act 1867 that says if gov't makes a law that is ultra vires, then it is unconstitutional

British North American Act 1867

Canada's gov't system comes from England. First constitutional document. Was not really candian independent. This was a statute enacted by the British Parliament set up the rules of governance for the colony of Canada

Adjudicated (decision-making) model

Courts function is to settle disputes, NOT makes laws -Judges apply established, legal rules to the case before them -our system is an adjudicated model

Policymaking Model

Idea that judges should engage in policy-making, not just apply the rules this is the model gov'ts use - weiler says this gives too much power to an unelected body

Notwithstanding Clause (s.33)

If a body of gov't wants to pass legislation that is unconstitutional, they can do so in spite of the violation by relying on s.33. Can use this clause to override rights. - used for Bill 101 (French only signs) -s.33 dilutes the power of the Charter b/c gov'ts can opt out of Charter when they go to s.33 -BUT does not imply every section of Charter

Weiler on the enactment of an entrenched "bill of rights"?

If the bill of rights creates an active court, and the gov't wants to alter the bill to limits its application and limit the authority of the court, this is more difficult to do where the bill of rights is entrenched (seen w/ the CCRF)

Case Law

Judicial interpretations of consitutional documents and any case law that adjucates the extent of gov't authority

Doctrine of Parliamentary Supremacy

Notion that parliament can take any law it wants. Positivist and conservative idea

Judicial Activism

Opposite of parliamentary supremacy. Courts are making laws, over-stepping their bounds by challenging the constitutionality of laws.

s.91

Outlines federal powers: bankruptcy, trade and commerce, criminal law, copyright

s.92

Outlines provincial powers: property of civil rights, whatever is not on this list goes to the fed gov't

Drybones - Dissent opinion

Saw the Bill of Rights as a guaruntee of procedural rights only. hearing must be fair, and the court does not have the authority to declare laws inoperative - dissent is very positivist and traditional

Drybones - Majority opinion

Saw the Bill of Rights as an express promise by fed gov't that its laws would not infringe on important rights as described by the bill, and that if they did, the bill gave the court the authority to declare the laws inoperative -natural law point of view

Drybones - accused defence

That the law itself was discriminatory and therefore in violation of the Canadian Bill of Rights

Doctrine of Parmountcy

The fed gov't will prevail over provincial where 2 properly enacted laws conflict. Rule is that as long as both pieces of legislation are properly enacted, the federal legislation will prevail

Roncarelli V. Duplessis "rule of law"

The rule of law- a country is governed by law, the governing laws are not arbritray or unfair, all citzens are equally bound by the laws -case shows the courts setting limits on the power of the state

Supreme Law (s.52)

This refers to the constitution and charter - saying that all laws have to be consistent w/ them. S.52 states that any laws inconsistent w/ the supreme law "have no force and effect" -Charter says that the CCRF is supreme law of Canada - ANy conflict b/w any other statutes of law, charter will govern, its trump card, its entrenched

Canadian Act 1982

Trudeau said Canada would no longer need to go to England for approval and the repatriation of the constitution took place. Fed gov't did not need consent of all the provinces, but convention existed -Before 1982, the Charter was only federal legislation, but after it became entrenched and the amending formula was adopted

Conventions

Unwritten rules that are not laws, not enforced by the courts - there is a presumption that they will be obeyed b/c its the way things have always been

Entrenched

Written laws that are unchanging. Cannot be changed by ordinary legislation, rather, only according to amending formula in the charter - this requires 7/10 provinces representing 2/3 of the population

Positivist view on courts

courts should not interfere w/ making laws b/c they are not elected, cant be removed.

Principles of fundamental jusice

the basic tenets of our legal system - including both substantive and procedural law

Division of Power

the powers b/w the levels of gov't as described in the Constitution Act (former BNA). If legislature passed a law and it was not clearly within its stated powers under the BNA, this would be the subject of a lawsuit and determined bu the court. EX: gun registration passed by the federal gov't when it was prov gov't authority to do so.

Patriation Reference (1981), the Supreme Court of Canada held

there was no law requiring consent of a majority of the provinces be obtained prior to the federal government asking the British Parliament to amend the Constitution of Canada