ENH 121 Unit 3 Part 1: Constitutional Law
What is the purpose of constitutional law? (5)
1) "Rules about rules": establishes appropriate processes 2) Superior type of law that sets out structure/function of legal system 3) Determines "pedigree" of a law(Pedigree of legal authority: Statute->regulation->agent) 4) Establishes legislatures and courts - the two sources of law 5) Based on UK style "constitution" (partly unwritten custom)
What is the history of Canada and its initial constitution? (4)
1) 1867 - Province of Canada (Que & Ont), New brunswick and Nova Scotia joined in federation 2) Other provinces joined later 3) A British Act - the British North America Act 1867 (BNA Act) created the nation of Canada 4) Privy Council (UK) was final court for Canadian cases until 1949 when Supreme Court Canada took over
How did Pierre Trudeau change Canada's constitution in 1982? (4)
1) 1982 - The constitution was "brought home" to Canada from the UK 2) The UK passed the Canada Act to transfer the content of the British North America Act to Canada 3) Canada passed the Constitution Act which has the same wording as the 1867 BNA Act 4) 1982 - Charter of Rights and Freedoms added to constitution
What are the two levels of government present in federal states such as Canada? (2)
1) A federal state has two levels of government - national and provincial, where the provincial level is not a "creature" of the national government. 2) Provinces have their own inherent jurisdiction.
Who has jurisdiction and rights over law when it comes to a provincial and municipal conflict? (2)
1) A provincial Act always takes priority over a municipal by-law if there's a clear conflict between them. 2) Superior levels of government have priority
Does constitutional law change or reform? (4)
1) Constitutional law is conservative by nature and does not change very much 2) Foundational law and its reformation is very difficult 3) Beneficial to not have it change since it is fundamental law 4) Final authoratitive source of interpreting the constitution is the Supreme Court
What are examples of shared subject matters between the federal and provincial government?
1) Environment 2) Agriculture 3) Public Health
How do the federal, provincial and municipal governments of Canada compare in terms of power and jurisdiction?
1) Federal and provincial levels are "equal" in own spheres. 2) The provinces are not "subordinate" to the federal government. 3) Municipal governments in Canada are not a third level of constitutional government.
Can politicians ammend or change constitutional law?(4)
1) Final authoratitive source of interpreting the constitution is the Supreme Court 2) Politicans, governors have no right to overrule this interpretation 3) Follow precedent by the highest form of court 4) New subjects of law-making by legislatures added over the years by the Supreme Court
Does the municipal government act as a third level of constitutional government? (4)
1) Municipal governments in Canada are not a third level of constitutional government. 2) They do not have their own protected jurisdiction. 3) They are "creatures" of the provincial governments 4) Municipal Government given powers under the Provincial Government
How are new subject matters allocated between the federal and provincial governments? (3)
1) New subject matters are interpreted as part of sections 91 or 92 - they are "implied"(ex. telegraph in section 91; telephone similar so section 91) 2) or "declared" to be federal 3) or added under the "POGG (peace, order and good governmen) clause" to the list of federal powers
Why have new subject matters arisen in law? (3)
1) New subject matters have arisen since 1867 mainly because of: a) New technology b) Changing social values or concerns 2) New subject matters need to have laws 3) Up to the judges where to categorize new laws on technology and social values/concerns
What is parmountcy doctrine? (2)
1) Only if there is a conflict between the federal and provincial laws (ONLY for shared subject matters), the federal law takes priority - this is called the "paramountcy doctrine" 2) This is so even if the federal law is less stringent than the provincial law.
What is the history behind Canada's union?
1) Ontario and Quebec were once Upper and Lower Canada; Then amalgamated 2) Names changed after to Ontario and Quebec due to great differences between the cultures( English and French colonies) 3) Union of Canada in 1867
How did Pierre Trudeau revolutionize Canada's constitution? (5)
1) Pierre Trudeau in 1982 added the Charter of Rights and Freedoms to the constitution 2) Constitution also taken back from Britain through the Canada Act 3) 1982 legal revolution where power shifts to the Supreme Court of Canada; previously the Parliament had all the Power 4) Since 1982, the Supreme Court has had power to overrule the Legislative 5) Balances the system and allows separation of power
Why does the provincial government always trump municipal? (2)
1) Rationale is not constitutional - really an issue of legislative intent at the provincial level 2) As municipal governments are creatures of the provincial government and only have law-making powers that have been granted to them by the province.
What are some example issues constitutional law deals with? (3)
1) Should a PHI inspect food handling on an airplane or a cruise ship? 2) Is construction work on an airport terminal under federal or provincial OHS law? 3) Why is it that if you spill toxic material into a river a federal, a provincial and a municipal inspector will all show up?
Why are some things in law shared between the federal and provincial government in terms of jurisdiction? (3)
1) Some subject matters are big and "amorphous" and so are shared between federal and provincial - "shared subject matters" 2) Best example is "the environment" 3) If it is a shared subject matter then both levels of government can make laws about it at same time
How does the Supreme Court of Canada effect constitutional law? (3)
1) Supreme Court of Canada interprets the constitution, and meaning often found in case law 2) New subjects of law-making by legislatures added over the years 3) Doctrine of "stare decisis" - Supreme Court of Canada final arbiter (follow precedent of highest authoritative court)
In general, what constitutional properties do Territories in Canada possess? What is it equivalent to? (3)
1) Territories only have power that has been given to them by federal government 2) Like a municipality but federal creatures 3) Do not have provincial powers
What constitutional powers do the Territories have? (4)
1) The 3 territories - Yukon, NWT and Nunavut - are not constitutional provinces. 2) Their law-making powers are delegated to them by the federal government, and do not derive from s. 92 of Constitution. 3) The territories are "creatures" of the federal government. 4) If there is a conflict between a federal law and a territorial law, the federal law always takes priority.
What are Divisions of Power as stated in the Constiution Act? (5)
1) The allocation of subject matters into federal and provincial jurisdictions is called the "division of powers" (not the "separation of powers") 2) Subject matters are called "heads of power" 3) The 1867 list of subject matters was in sections 91 and 92 of the BNA Act 4) The same list is now in sections 91 and 92 of the Constitution Act 5) 91 Federal subject matters ; 92 Provincial subject matters
What are 2 examples of exclusive jurisdiction? (3)
1) The provinces have "exclusive jurisdiction" over public hospitals. 2) The federal government has "exclusive jurisdiction" over criminal law. 3) Federal government cannot regulate hospitals and Provincial government cannot regulate criminal law
What has been the trend with territorial powers in recent decades? (2)
1) The trend has been for the federal government to delegate powers to the territories so as to mimic provincial jurisdiction. 2) So we do see territorial PH, OHS and Environmental laws similar to provincial ones.
Why understand constitutional law? (5)
1) Understand the "legal system" 2) Know where to look for certain laws 3) Be able to determine legitimacy of action 4) Be able to identify overlapping and gray areas 5) Be able to challenge and defend against abuse of power
What does express and implied mean when reading law? (3)
1) When reading law the content can be "express" or "implied". 2) The meaning of the legal text is "express" if it is there in black and white on the page. 3) The meaning of the legal text is "implied" if it is inferred - you get the meaning by "reading between the lines".
What British Act created the nation of Canada?
A British Act - the British North America Act 1867 (BNA Act) created the nation of Canada
What is a unitary state?
A unitary state has only a national level of government even though the national government can delegate powers to lower levels of government
What jurisdictions does criminal law concern itself with as mandated by constitutional law?
Criminal law - always federal
What jurisdictions does the environment concern itself with as mandated by constitutional law?
Environment - shared subject, federal & provincial
What are the main features of the Canadian legal system?
Federal state British style constitution "Bijural" - common law and civil code (in Quebec Parliamentary supremacy (except re Charter and re jurisdiction) Independent judiciary Democratic Rule of law; law is outside of people Open society
What is constitutional law?
Foundational rules for the legal system
Is Occupational Health and Safety shared between the federal and provincial government?
No Occupational Health and Safety is not shared in jurisdiction; strictly provincial or strictly federal; depends on agency or company
What jurisdictions does occupational health and safety concern itself with as mandated by constitutional law?
OHS - federal or provincial jurisdiction depending on whether the organization is otherwise federal or provincial
When was the Supreme Court of Canada introduced?
Privy Council (UK) was final court for Canadian cases until 1949 when Supreme Court Canada took over
What jurisdictions does public health concern itself with as mandated by constitutional law?
Public health - shared subject, federal & provincial
What is an example of how jurisdiction works in law?
Smoking Outside Provincial jurisdiction, enter Airport and smoke Federal jurisdiction, enter TTC provincial jurisdiction, enter Via Rail Canada Federal jurisdiction
What is exclusive jurisdiction?
When the federal government or provincial governments have jurisdiction over a subject matter and the other jurisdiction does not then there is "exclusive jurisdiction" rather than "shared jurisdiction".
What jurisdictions does workers compensation concern itself with as mandated by constitutional law?
Workers' compensation - always provincial