Canada Law Indigenous Peoples PDF

Indigenous People Note: this lecture includes brief mentions of racism, child violence/death and sexual violence. Please take care of yourself. Terminology Aboriginal – CA 1982 - Sec 35 – “aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Can...

Indigenous People Note: this lecture includes brief mentions of racism, child violence/death and sexual violence. Please take care of yourself. Terminology Aboriginal – CA 1982 - Sec 35 – “aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada” – constitutional/legal status First Nations - generally replaced the term “Indian” does not have a legal definition can refer to a band, a reserve community, or a larger tribal grouping Status Indians - person who is registered under the Indian Act Inuit – Inuit are the Indigenous people of the Arctic are not considered “Indians” under Canadian law Métis - of cultures and ethnic identities that resulted from unions between Aboriginal and European people; not considered “Indians” under Canadian law but took them to law and now can be Indigenous - are referred to as first people. a term used to encompass a variety of Aboriginal groups. It is most frequently used in an international, transnational, or global context.  Objectivess Who are Canada’s Indigenous People? How do we understand Indigenous-Canada Relations? What is (some of) the history between Indigenous People and Canada? Where is Canada today? Where are we with treaties?  Who are Canada’s Indigenous people?  2021 Census - 1.8 million Indigenous people; 5.0% of the total population of Canada more than 70 Indigenous languages How do we understand Indigenous-Canada Relations?  Concepts Ǫuébec C Indigenous Will Kymlicka - Canada is a mleultination and polyethnic p eop state 1. national minorities 2. polyethnic or ethnic groups Hyphenated - Canadians Will Kymlicka say that Canada is a miti national and polyethnic state( english, frinh and in Indigenous) polec are immigrants so very diverse He say that indigenous and quebec are different because they did not come to canada by chose  Canada as a Settler State settler colonialism: colonizers do not withdraw, but instead establish a sovereign claim over a new territory and people state appropriating Indigenous land, resources and jurisdiction for the benefit of settlers Canada, US, New Zealand, Australia etc. are settler societies settler: non-Indigenous people or their descendants who moved to and settled in what is now Canada. In the 1960 meny colonial country were done with it and had to fend for themselves They did colonialism for resources Colonial country extract resources, to do this they had to make deals with indigenous to get items like fur Canada is a settler state, conceived over and against Indigenous sovereignties. It was designed for settler populations. And thus, while most settler Canadians have never personally committed an act of explicit racism against an Indigenous person, they have benefited from the structures and the consequences of colonialism. This is what we call "privilege," and it includes the comfort of not knowing about these things (Joyce Green). What is (some of) the history between Indigenous People and Canada? Early Relations 1492 – arrival of Europeans North America was not discovered; pre-existing sovereign Indigenous nations existed here fur trade treaties and trade agreements early interactions were mostly harmonious and mutually-beneficial, with little conflict between settlers and Indigenous peoples Early Relations Two Row Wampum Belt Early Relations treaties - peace and friendship and reset and each nahin will not interfere with eachor Royal Proclamation (1763)- made possible for tredes, it gives indigenous a tilde, they retain their land until they want to give it up but this did not mader cuz after they just took it from them. Indigenous dont believe that the own the land they dont see treaties as giveing up land but as a friendship Treaty of Niagara (1764)- adding the silver beads( the 2 bots) Shifting relations Numbered Treaties 1 to 11 are a series of historic post-Confederation Treaties (1887 - 1921) Views: Crown: treaties as land cessation Indigenous people: treaties as nation-to-nation agreements Era of Assimilation CA 1867/BNA Act - Section 91 – Indians federal responsibility Indigenous people wards of the status as a power like a military hospital like something they have to deal with. All indian land becomes britain land There are not seen as someone to make a deal with but as someone to take care of or eliminate Indian Act (1876) - consolidated all existing pieces of Crown legislation dealing with Indian policy legal category of Indian Status (blood quantum) (have lots of blood:ie genetics) enfranchisement provisions Superintendent of Indian Affairs Banning of cultural practices Band council system instead of indigenous government Assimilation of Indigenous peoples into mainstream settler society If you were to sivalizes your name of an indian can be takeaway means you don't get the pros of it any more To end Indigenous People and turn them into different people Era of Assimilation Indian Residential Schools system (1884-1996)-end of it objectives: to remove and isolate children from the influence of their homes, families, traditions and cultures, and assimilate them into the dominant culture financed by the federal government; staffed and run by several Christian religious institutions more than 150,000 Indigenous Era of Assimilation Indian Residential Schools system (1884-1996) 2005 - Indian Residential Schools Settlement Agreement Truth and Reconciliation Commission (2008 - 2015) 2022 - National Day for Truth and Reconciliation – September 30(They were forced to sue in order to get this) New federal holiday but not in all the word Shifting Relations (1960s) ramping down of the IRS systems Sixties Scoop 1950 -1980 they were taken away put into white families 2017 settlement as result of as class action lawsuit it's not really a settlement cuz they were sued components of the Indian Act repealed to provide Indigenous peoples with full rights of citizenship without losing status White Paper (1969) policy paper that proposed ending the special legal relationship between Aboriginal peoples and the Canadian state and dismantling the Indian Act (giving accommodations ) resolve the “Indian problem” using a multicultural framework of accommodation forcefully and unequivocally rejected --> rise in Ingenious organizing and activism Withdrawn They rejected the act cuz they want the stay indian But they want to keep it cuz it forces reasonable on the government Shifting Relations (1980s 🡪) CA 1982 - The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. Indigenous rights subject to increasing judicialization Self-government (inherent) Charlottetown Accord (failed) in 1992 could have been a massive change 1995 – policy Royal Commission on Aboriginal Peoples (1996) 2021 - Canada signs United Nations Declaration on the Rights of Indigenous Peoples made in 2007 not wanted by canada, new zealand us cuz they did not not to reset them but did it later By putting their rights in the consatosinl, cuz its a powerful law they have to follow it No Canadian government has turned away from colonial assumptions and towards reconciliation, despite the occasional rhetoric of nation-to-nation relationships and turning new pages. In sum, in matters of colonial practice, plus fa change, plus c'est la meme chose (Joyce Green). Where are we now? Renew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future (TRC, 45 iii). Where are we with treaties? treaties - formal legal agreements signed between countries are called treaties, and so too are the legal agreements signed between the Crown and indigenous people. Where are we with treaties? historic treaties - Canada recognizes 70 historic signed between 1701 and 1923 relational vs. transactional perspective on treaties treaty making stopped after 1923 - treaties did not exist for much of the country cuz they are just going to take the land Where are we with treaties? treaty making was restarted in the 1970s because of the White Paper Calder v. Attorney-General of British Columbia 1967 - Nisga’a sued BC - Nisga’a title to their lands had never been lawfully extinguished through treaty or by any other means 1973 – SCC - split on whether the Nisga’a’s claim s was valid acknowledged the existence of Aboriginal title title - Indigenous peoples retained ownership and control of all land not formally ceded by or purchased from them Where are we with treaties? modern treaties fall into two categories: comprehensive claims - Indigenous land claims based on Aboriginal title specific claims- Indigenous land claims arising from the alleged non fulfillment of Indian treaties and other lawful obligations 1975 - James Bay and Northern Ǫuebec Agreement between the Cree and Inuit - first provincial comprehensive land claim settlement since 1975 - 26 modern treaties; 18 of which contain self-government provisions CA, 1982 - Treaty rights are recognized and affirmed by section 35  Modern treaties and stand-alone self-government Modern treaties A Inuvialuit Final Agreement Inuvialuit Final Agreement/Western Arctic Claim - agreements 1 Yukon Nunavut Agreement B C Yukon Umbrella Final Agreement 2 Vuntut Gwitchin First Nation Final and Self-Government 3 Agreements Tr'ondëk Hwëch'in Final and Self-Government 4 Agreements 5 First Nation of Nacho Nyak Dun Final and Self-Government A Agreements Selkirk First Nation Final and Self-Government 6 Alaska 7 Agreements (U.S.) 1 Kluane First 8 Nation Final and Self-Government Agreements Little Salmon/Carmacks 9 First Nation Final and Self-Government Agreements 2 D 10 Champagne and Aishihik First Nations Final and Self-Government 11 Agreements Ta'an Carcross/Tagish Kwäch'än First Nation Council Final Final and and Self-Government Agreements Self-Government 3 B 12 Agreements Kwanlin Dün Teslin Tlingit Final First Nation Council andFinal and Self-Government Self-Government Agreements 4 NUNAVUT Agreements C D 6 E F 7 5 E Gwich'in Comprehensive Land Claim Agreement 8 910YUKON Sahtu Dene and Métis Comprehensive Land Claim Agreement 11 G 12 G F Délįnę Final Self-Government Agreement H Tłı˛chǫ Agreement I NORTHWEST TERRITORIES Nisga'a Final Agreement J Maa-nulth First Nations Final Agreement K Tsawwassen First Nation Final Agreement H M Self-Government L Tla'amin Treaty Recognizing the Whitecap Dakota Nation Final Agreement P / Wapaha Ska Dakota Oyate BRITISH COLUMBIA M N-L Nunavik Inuit Land Claims Agreement N Eeyou Marine Region Land Claims Agreement ALBERTA O O James Bay and Northern Quebec Agreement and Northeastern P Quebec Agreement SASKATCHEWAN Labrador Inuit Land Claims Agreement J MANITOBA N Stand-alone self-government agreements I QUEBEC shíshálh Nation Self-Government L P.E.I. Westbank Self-Government K ONTARIO Agreement N.B. Sioux Valley Dakota Nation Governance Agreement and N.S. Tripartite Governance Agreement Cree Nation Governance Agreement United States Disclaimer GS22-05 (GCdocs #112856897) This map is distributed for informal purposes only. His Majesty in right of Canada (CIRNAC) does not warrant or guarantee the accuracy Sources: or completeness of the information contained in the drawings. The boundaries indicated are approximate and may be subject to revision in the future. These drawings Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC): Implementation Sector, Policy & Partnerships Branch, Modern Treaty & are not to be relied upon for any purpose or activity, including but not limited to for assessing consultations obligations. His Majesty in right of Canada (CIRNAC) does Self-Government Policy Directorate, May 2023. not assume any legal liability or responsibility for any damage or loss incured as a result of the use of the drawings. Indigenous Services Canada: Band Governance Management System (BGMS), September 2023. Natural 0 250 Resources Canada: National Atlas of Canada, 1 : 30,000,000. 500 Km Indigenous Services Canada, Geomatics Services, September 2023. Where are we with treaties? Issues with modern treaties Pressure to enter them long negotiations - at least 10 years relational vs. transactional perspective on treaties  Canada is a settler country Indigenous People are heterogenous – history, cultures, languages, Key relationship with Canada Points While overt forms of colonialism, racism and assimilation do not exist anymore, Canda far from post- colonial – treaties are one example of this The Constitution Types of Institutions- state and political state institutions – political institutions – institution that are related to structure democratic the constitution expression within states; closely related to citizen behaviour Objectives What is a constitution? What are the components of the Canadian constitution? How can we change the Constitution? How has the Canadian Constitution changed over time? WHAT IS A CONSTITUTION? Constitution Constitution- the fundamental rules by which a country is governed Rules over all laws Three key relationships 1. branches of government 2. levels of government (division of power) 3. state and the people( limit gov power)( what they cant do to the people and what they most do) written or unwritten WHAT ARE THE COMPONENTS OF THE CANADIAN CONSTITUTIONS?  Canadian Constitution Entrenched- writing legal Only way to change is an amending formula Constitution Act, 1867 (formerly the BNA Act) Constitution Act, 1982 including the Charter non entrenched- don't need a amending to change acts of a constitutional nature judicial decisions conventions They are not synonymous with written/unwritten  Canadian Constitution Constitution Act, 1867 (BNA Act) - Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the The first one we get is Crown of the United federalism Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom. Canadian Constitution Constitution Act, 1867 The Union and the Crown Executive Powers Legislative Powers Provincial Constitutions Federalism The Judiciary Canadian Constitution Constitution Act, 1982 ( isn't until 1982 do they tell the relationship between us and the state) equalization provincial control over natural resources Official Languages Act Aboriginal rights (Section 35) Charter of Rights & Freedoms amending formula Canadian Constitution Fundamental freedoms Mobility rights Legal rights Equality rights Linguistic rights Education rights Canadian Constitution (non entrenched) acts of a constitutional nature - an ordinary statute that supplement the entrenched constitution by applying a general principle to specific circumstances British Statutes and Orders in Council – amendments to the BNA Act e.g. terms of union for BC and PEI organic Canadian statutes the acts that created MN, AB, SK Indian Act, Supreme Court Act, Canada Elections Act, Bill of Rights, Constitutional Veto Act, Clarity Act Canadian Constitution judicial decisions- A judicial decision is the outcome of a court case, typically involving the interpretation of laws or the application of legal principles to specific facts. judicial review - the authority of the courts to invalidate laws passed by Parliament or provincial legislatures that they deem to be in violation of the Constitution. Judicial Committee of the Privy Council (1949) Supreme Court of Canada Canadian Constitution Conventions - unwritten rules based on custom that binds political actors to adhere to the tradition of the constitutional order widely accepted informal constitutional rules not legally enforceable by the courts examples? HOW CAN WE CHANGE THE CONSTITUTION? HOW HAS THE CANADIAN CONSTITUTION CHANGED? Constitutional Change Missing from the BNA, 1867 (Roger Gibbins) 1. The Ǫuébec campus 2. Indigenous people 3. popular sovereignty 4. Rights- (till 1982) 5. Independence In 1967 we made the dominion of canada  Constitutional Change – 1867 – 1930s BNA Act,1867 – unpatriated( powers are legislative powers that remain under the control of the British Parliament rather than being fully transferred to Canada.) 1931 - Statute of Westminster British law that declared that Britain and its Dominions were constitutionally “equal in status.” – making them fully independent Till 1982 canada does not have a formula and we ask britain to do it for us BUT statute of Westminster contained a clause allowing the British Parliament to amend the BNA Act, 1867 changes to the BNA Act would occur through: 1. Amendments by the British Parliament - unanimous provincial consent 2. Statues/orders in council 3. Judicial decisions Constitutional Change - 1940s – 1970s attempts for a domestic amending formula were made in 1935–36 and 1949 mega-constitutional politics (Peter Russell) Constitutional Change – 1960 – 1970s patriation failures 1964 - Fulton-Favreau Formula The mending formula 1. First attempt 1971 - Victoria Charter(right, equal and recdr to have confinsis Next big attempt Both failed because Ǫuébec withdrew support 1976 PǪ elected – referendum on sovereignty association( a 1978 unilateral patriation – (A party main goal is to break up Time for Action – PE Trudeau) canada and leave to make opposition from the Gang of Eight quebec independent) In 1980 Trudo get with the premiers and cuz he had enough he make his own constitution and sent it to britain The gang of 8 did not like they are patriated the Constitution  Constitutional Change - Patriation Patriation Reference, 1981 - the federal government asked the SCC tredo asks on the change of the constitution 1. Was unilateral patriation legal? unilateral patriation would be legal BUT unconstitutional 2. Did a convention of provincial consent exist? substantial degree of provincial consent SCC: yes and yes It is legal to patriated the consatosin We all need to be involved so he can do this So trodo does this he asks the primers on the new deal All of these people are trying to see how to break the deadlock so what they do is konk on door of their hotel and ask do you like this premiere and they say yes but Rene Levesque is not there so he does not know He drives to the meeting and gives page says quebecs and canada made a new agreement butttt without quebec's say(Rene Levesque) So quebec's did not to sine this but it don't matter cuz the majority agreed to this and you only need a subsantrol(90%) not all Constitutional Change - Patriation Patriation Reference - restarted negotiations “Night of long knives” notwithstanding clause (Sec 33) -- comprise patriated without Ǫuébec’s consent Rene Levesque, Ǫuébec Premier PM Pierre Trudeau G Ǫueen Elizabeth, II Constitutional Change Constitution Act, 1982 equalization provincial control over natural resources Official Languages Act Aboriginal rights Charter of Rights & Freedoms amending formula Constitutional Change amending formula - formal process for changing a written constitution domestic amending formula = patriation Constitutional Change - 5 Amending Formulas * “And no one cheered... - The struggle over the constitution was shaped by dreams and compromises. The participants brought to the negotiations a complex mix of goals and dreams, only some of which are visible in the final outcome. For some dreams, especially those of Ǫuébec nationalists, the constitutional settlement represents an historic defeat. For others, the settlement represents a sweeping compromise” (Banting C Simeon, 1983: 3).  Constitutional Change Meech Lake Accord 1986: “five conditions” for Ǫuebec to engage in constitutional negotiations 1987: Meech Lake Accord – to talk on the demands provincialized all but distinct society PM got Brian Mulroney in 1984 C Robert Bourassa, Ǫuebec Premier Constitutional Change ( the quebec rally ) Meech Lake Accord 1986: “five conditions” for Ǫuebec to engage in constitutional negotiations 1987: Meech Lake Accord – provincialized all but distinct society 1990: Meech Lake Accord fails – MN and NL don't do it And cuz it did not happen quebec says we will not go to your meeting anymore Elijah Harper Manitoba MLA Elijah says no cuz there are no indians one of the first problem to be fixed Constitutional Change Charlottetown Accord 1992: (28 August) First ministers and Indigenous leaders sign the Charlottetown Accord equal elected effective Constitutional Change Charlottetown Accord 1992: (28 August) First ministers and Indigenous leaders sign the Charlottetown Accord 1992: (26 October) Charlottetown Accord is defeated in nationwide referendum (54.2% seid no) only 3 prov sed yes to it Constitutional Change Differences Between Accords (lake and Charlottetown Accord) 1. focus Ǫuébec round vs. Canada Round (West, Indigenous people) 2. negotiations executive federalism vs. multilateral negotiations 3. public involvement none vs. substantial (before – Spicer Commission and after referendum) Constitutional Change - Today “Canadians... would much prefer to make do with political institutions poorly designed for the nineteenth century than engage in constitutional reform” (Gibbins, 2009). non-constitutional change Ǫuébec is a distinct society (1995) and a nation (2006) Constitutional Amendments Act Senate reform Canadian Constitution - Amending Formulas Constitutional Amendments Formula Act, 1996 1. ON, ǪC, BC act of Parliament 2. 2 Atlantic provinces with more than 50 % of the sets out the combination of region's population provinces and regions whose support is needed 3. 2 Prairie provinces with more than 50 %of the before the Canadian Cabinet region's population (defacto presents proposed AB veto ) constitutional changes to Parliament changes to 7-50 rule Key Points Canada’s constitution is A constitution is the made up of written, fundamental rules by unwritten, entrenched which a country is and unentrenched , governed formal and informal components Canada could not, on its own, change its The Canadian constitution Constitution until 1982; is rigid and quite difficult it now has 5 entrenched to change amending formulas green= fedrasion ( 40%) The Federal System Westminster Charter Pillars of parliamentary Federalism of Rights democracy and Freedoms Canadian Government Objectives What is a federal system? How does it differ from other types of political systems? What are the features of a federal system? What does Canada’s federal system look like? How Canadian federalism has evolved over time? How does Canada fund federalism? WHAT IS A FEDERAL SYSTEM? HOW DOES IT DIFFER FROM OTHER TYPES OF POLITICAL SYSTEMS? Forms of Government ◾ Federalum- foedus(latin) - league, treaty, compact or convent ◾ federal system - authority is divided and shared between the central government and provincial governments - each deriving authority from the constitution ◾ shared & self-rule(divided power) ◾ Ontario self rules but shared with canada Forms of Government unitary – form of government in which the power & authority to govern is centralized in one government (e.g United Kingdom) confederation - where the regional or sub-national governments are supreme, & the national authority is entirely their creation & servant(Made for defence, types of $) The 2 ways they differences 1. Delegation-( give of power/ athorade, the power can be taken bake like a babysitter with kids when mom is back they got power) 2. Centralization- is the process by which decision-making authority and control are concentrated within a central point or a small group of individuals in an organization. This central authority is responsible for making key decisions, setting policies, and directing the overall strategy of the organization. imagine you have a big toy box, and you and your decentralization. It means everyone has the friends want to play with different toys. If only one power to make their own choices and decisions, person (let’s say, the teacher) decides who gets to play with which toy, that’s like centralization. instead of just one person deciding for Got all everyone. power The central government is very powerful (most!!!!) At 1867 canada was centralized but lader we got decentralized CONFEDERATION? (We celebrate it) We are not a confederation but we call ourselves one to describe the creation of canada WHAT ARE THE FEATURES OF A FEDERAL SYSTEM? WHAT DOES CANADA’S FEDERAL SYSTEM LOOK LIKE?  1. at least two orders of government 2. constitution 3. regional representation in centre Features of a 4. You need a umpire fedrasion 5. amending formula 6. intergovernmental relations Features (1 & 2) two order of constitution government ▪ CA 1867 - division of powers Parliament (federal or ▪ Section 91 – Federal central government) ▪ Section 92 – Provincial 10 provincial legislatures ▪ Section 95 - Concurrent ( shared of fed and provincial) Features What about the other Canadian governments? not constitutionally recognized municipalities – Sec 92 “creatures of the province” territories – authority delegated from federal government( territories not part of federalism) None of there power comes from the constitution Features (3) regional representation in centre regional representation in centre Senate of Canada a body of reason repasttasin All fed have some pervigins the let the vew of sub to be part of the design making intrastate federalism (within state) Interstate federalism, or horizontal federalism, is about how states in a federal system interact with each other. “Many observers view the Senate’s performance in fulfilling its role as a voice for regional concerns as ultimately weak (Macfarlene, 25).” Representation of subunits Features (4) Umpire (help with fights) Judicial Committee of the Privy Council (JCPC) 1867 – 1949 “breath life into Canadian federalism” Supreme Court of Canada (created 1857) judicial review patriated in 1949 1949 the fed gov designed to outlaw the JCPD and make the supreme court the highest court of appeals Features (5) amending formula Features (6) intergovernmental relations- process for resolving conflicts within a federation without corts so we are all happy other then of win and lose executive federalism - the interaction of the executives of the federal and provincial governments (first ministers and ministers) functional federalism - system in which civil servants conduct the bulk of intergovernmental activity interstate federalism The idea that each of the state are interacting between the government/sate HOW CANADIAN FEDERALISM HAS EVOLVED OVER TIME?  Cooperative Ǫuasi Competitive Emergency Collaborative Classical Evolution quasi-federalism - federalism in appearance, but unitary in reality disallowance (last used 1943 in sec 55 it the power of the fed to disallowance pieces of legislations) reservation (last used 1961 sec 56 they can ask the to hold off the signing off of laws ) veto/Lieutenant governor( just stopping law and sayings i will not sign this) residual power: peace, order & good government (POGG)(the fed gov have the compay to make laws in all matter that are not excessive listed in sec 92 as if right now ) Evolution classical federalism – where the federal and provincial governments are not subordinate to each other and operate independent of each other( took POGS power) “watertight compartments”( JCPC Evolution (post WW2)cooperative federalism - federal and provincial governments generally cooperate under federal leadership finances federal spending power( the power of money to make them do what they want) executive federalism ( Canadian federalism was sometimes labelled executive federalism Two main implications of executive federalism are that legislatures, political parties, and the public at large are not given much role to play in decisions that emerge from the secrecy of meetings of executive officials, and that federal–provincial conflicts are worked out in conferences rather than referred to the courts. “functional” or “bureaucratic” federalism Bureaucratic federalism is frequently more successful than first ministers’ conferences, partly because the officials involved often share certain professional norms, and once they reach a consensus, these experts may be able to “sell” it to their departmental ministers. Such federalism works best with Cabinets in which individual federal and provincial ministers and deputy ministers have considerable autonomy so that they can interact productively with their counterparts at the other level of government Evolution competitive federalism - provincial and national governments compete to maximize their autonomy, power, and popularity with the voters( saying i'm your best government over the rest) This means mega constitutionalism Evolution collaborative federalism - both levels of government try to work together as equals in deciding some major policies Let’s Visualize Federalism The purple triangle represents the federal government and the green triangle the provincial government. How would would represent quasi, classical, cooperative, and collaborative federalism using the two triangles? (Consider size, placement of triangles) Let’s Visualize Federalism collaborative federalism The purple triangle represents the federal government and the green triangle the provincial government. How would would represent quasi, classical, cooperative, and collaborative federalism using the two triangles? (Consider size, placement of triangles) Let’s Visualize Federalism cooperative federalism The purple triangle represents the federal government and the green triangle the provincial government. How would would represent quasi, classical, cooperative, and collaborative federalism using the two triangles? (Consider size, placement of triangles) Let’s Visualize Federalism classical federalism The purple triangle represents the federal government and the green triangle the provincial government. How would would represent quasi, classical, cooperative, and collaborative federalism using the two triangles? (Consider size, placement of triangles) Let’s Visualize Federalism quasi-federalism The purple triangle represents the federal government and the green triangle the provincial government. How would would represent quasi, classical, cooperative, and collaborative federalism using the two triangles? (Consider size, placement of triangles) HERS  Cooperative Ǫuasi Competitiv e Emergenc y Collaborativ e Classic Competitiv ❓ al e? HOW DOES CANADA FUND FEDERALISM? Fiscal Federalism system of funding to redistribute revenue between two orders of government; the flow of money from the federal government to the provinces fiscal imbalance - the view that the provincial governments do not have a proper share of revenue to carry out their responsibilities Two types of imbalances 1. vertical – federal – provincial( feds have lots of $ provinces got small $) 2. horizontal – between provinces(imbalances of provinces as they dont got the same money) For vertical Evolution of Federal Grants Conditional Grants (mom says i will give you 200$ and you moust buy shoes but you have to pay for ½ of it. only as in the person who gave the money sets the conditions what you have to do) On slide UP is what they were allowed to spend the money on grants to provincial governments for specific programs – must meet conditions set by the Canadian government Canada Assistance Plan (CAP) - shared cost-programs EPF (1977) (block grant)-( we will give you a block of money but it has to be spent on what we say it can be on) ( starts in cooperative federalism) CHST (1996) - replaced EPF & CAP( made this change cuz it was way to much $) CHT & CST (2004) federal spending power - the capacity of the federal government to spend its available funds, even on areas that fall outside its constitutional jurisdiction vertical fiscal imbalance Central to cooperative federalism  Conditional Grants “the current trend is toward a more directive and less collaborative use of the spending power. For instance, the degree of federal-provincial collaboration in defining policy challenges and framing the principles behind the agreements has declined. Partnership seems to be conditional on a province accepting the federal government’s policy vision” (Graefe & Fiorillo, 2023). For horizontal  Unconditional Grants( now they are still given 200$ but they can buy whatever they want) 1957 equalization - unconditional grants from the Canadian government to the governments of the poorer provinces to bring their revenue-raising capabilities up to a national standard. horizontal fiscal imbalance "Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation." (Subsection 36(2) CA, 1982) Fiscal Federalism - Equalization 2006 basic formula: on a per capita basis, a province’s ability to generate own- source revenues compared to the average fiscal capacity for all provinces top up to the per-capita average or ten province standard “have” and “have not” provinces Have: when the provinces have more money than the average this means they get no!! Money Have not: when they have less than the average the government tops up ther money Fiscal Federalism  Equalization Province Provincial Fiscal Equalization Capacity Per Payment Payments Capita ($) Per Capita ($) AB 2200 0$ The average will be 1500 BC 1900 0$ There money (-) average MN 1150 450$ NB 980 520$ If they have more give no NL 1658 0$ money NS 1000 500$ ON 1375 225$ If less give it what it needs to PE 900 600$ be average QC 1200 300$ SK 1850 0$  Federalism is one of the major pillars of Canadian government Canada divides power between TWO ORDERS of government (provinces and federal) Key Canada’s federation has changed significantly Points from 1867 both in terms of the features of federalism, centralization/decentralization and funding Since Confederation, a series of transfer programs have been established to address horizontal and vertical fiscal imbalances. “IF SOME COUNTRIES HAVE TOO MUCH HISTORY, WE HAVE TOO MUCH GEOGRAPHY.” WILLIAM LYON MACKENZIE KING, 1932 Regionalism & Québec Nationalism  What is a state, region and nation? How do these concepts relate to Canada? What is regionalism? Why is it a defining feature of Canadian politics? Objectives How is it expressed in Canada especially in the West? What is nationalism? How is it expressed in Canada particularly in Ǫuébec? Why does regionalism matter in Canada? WHAT IS A STATE, REGION AND NATION? How do these concepts relate to Canada?  Concepts State Structure of power people territory sovereignty region Within a territory It's not artificially made Peace of a territory Nation Sociological consent A historical Communities They have a subjective sense of being They are self defending Concepts Is Canada a nation? Nation- state (if we defined Nation as Nation state, we are not one) multinational Is Canada an ethnic nation or civic nation? ethnic nation-related to national identity and affirmation of a particular ethnic group. Ethnicity refers to a person's identity in relation to social, cultural, or religious groups, while nationality indicates legal citizenship in a country civic nation- the thing that makes you part of this nation is Citizenship Concepts Will Kymlicka - Canada ispa multinational and polyethnic state 1. national minorities( quebec and indigenous people) 2. polyethnic or ethnic groups( Hyphenated - Canadians) WHAT IS REGIONALISM? Why is it a defining feature of Canadian politics? How is it expressed in Canada especially in the West? Regionalism It is when they have a feeling of attachment to a particular part of the country unique behaviours and demands  Why does regionalism persist? socialization institutionalization politicization  The west wants in!!!!! Western Alienation What they mean is they want to be in the institutionalization powers Western Alienation Western Alienation Alberta Sovereignty within a United Canada Act (2022) - legal framework to push back on federal laws/policies that negatively impact the province. The idea that they want to protect Alberta from unconstitutional federal intrusion. And they are really committed to believing that the federal government gets involved in things that they shouldn't do. Saskatchewan First Act (2023)- defends the province’s economic autonomy and potential from federal overreach. This one is more focus on resources and saying we will sue you if you take ours What is Québec nationalism? Québec Nationalism “Ǫuébec has become the political expression of French Canada and for all practical purposes the homeland for all whose who speak French in our country” (Jean Lesage).  Québec Nationalism Ǫuiet Revolution (~1960) Jean Lesage (ǪLP)( in power 1960) He makes the quebec pension plan In 1960 quebec is starting to get more powers  Nationalism & Sovereignty Parti Ǫuébécois – established 1968 & government 1976 Ǫuébec Referendum(Sovereignty association) (1980) Patriation (1982) Meech Lake (1987) (the quebec round) Charlottetown Accord (1992)( the canada round) Bloc quebecois- house of commons(1993) PQ returns to power (1994) ǪC Premier - René Lévesque  Sovereignty 1995 Referendum "Do you agree that Ǫuebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Ǫuebec and of the agreement signed on June 12, 1995, Yes or No?” Results: 50.6 % Not to 49.4 % Yes  Sovereignty Federal post-referendum strategy Plan A - reconciliation(try to do a number of things to make quebec less mad, like giving them there vedu back with the vedu act 750 ) Plan B – tough love ( Tough love has two parts: secession reference and the clarity act. The reference case is an opportunity to ask the Supreme court for guidance) Sovereignty Secession Reference (1998) “A democratic vote by however strong the majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Democratic rights under the Constitution cannot be divorced from constitutional obligations.... a clear majority vote in Ǫuébec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.” Sovereignty Clarity Act, 2000 clear question clear majority Bill 99 - Ǫuébec response to Secession Reference:  Sovereignty Clarity Act, 2000 - conditions for accepting a referendum decision - any province can negotiate succession if they meet the Clarity Act clear question - HoC shall consider whether the question would result in a clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state. clear majority - the HoC shall take into account: (a) the size of the majority of valid votes cast in favour of the secessionist option; (b) the percentage of eligible voters voting in the referendum; and (c) any other matters or circumstances it considers to be relevant. Sovereignty Québec response to Secession Reference: Québec has an inalienable right to freely choose its political system and determine its legal status UDI  Ǫuébec still has not signed the Modern 1982 Constitution “That this House recognize that Nationalism the Ǫuébécois form a nation within a united Canada.”  Modern Nationalism “The decline of secessionism over the last decade or so has meant that identity politics in the province has shifted from a focus on what differentiates all Ǫuebeckers and other Canadians (necessary to convince Ǫuebeckers to secede from Canada) to an emphasis on the perceived necessity of newcomers to integrate into the culture and values of the majority” Béland, Lecours & Schmeiser, 2021. Modern Nationalism Bill 21 (An Act Respecting the Laicity of the State) (2019) secular religious symbols Passed with the use of Section 33 Faced some Charter challenges  Modern Nationalism Bill 96: An Act respecting French, the official and common language of Ǫuébec major overhaul of French language policy WHY DOES REGIONALISM AND NATIONALISM MATTER IN CANADIAN POLITICS? Comparison Same in decentralization Regionalism/sectionalism vs nationalism(dif) Why Does Regionalism Matter? Makes canada harder to govern at times Key Points Canada is a state There are Ǫuébec is not a comprised of different forms province like different national of regionalism. the others. groups and regions Regionalism Regionalism and remains one of the nationalism cause defining features political instability of Canadian politics The Executive  What key concepts are relevant to understanding the executive in Canada? What is the executive? Who makes Objectives up the executive in Canada? What is the nature of their power? What are the key debates about the executive? WHAT KEY CONCEPTS ARE RELEVANT TO UNDERSTANDING THE EXECUTIVE IN CANADA? Key Concepts Westminster parliamentary government Crown Cabinet Parliament (bicameral – federal/unicameral – provinces) We are a constitutional monarchy - It is a system role by a monarch - a system characterized by rules according to a constitution - They have political and formal executive fusion of powers - The idea that we have a duel the executive in the legislature responsible government - The government must have the confidence of the house WHAT IS THE EXECUTIVE? WHO MAKES UP THE EXECUTIVE IN CANADA? A formal executive is like the person who has the official job of being in charge. They wear a badge or a crown, and everyone knows that this person has the power to make big decisions, like making rules or signing important papers. They're like the boss who says, "Let's do this!" and everyone follows. Now, a political executive is a bit like the person who gets picked by everyone because they think this person will do a good job. They might not always make every single rule, but they lead the group, make speeches, and talk to other people to make sure things run smoothly. They're like the captain of a team that helps everyone work together. So, the formal executive has the job, and the political executive helps guide and lead everyone! WHAT IS THE FORMAL EXECUTIVE? WHAT IS THE NATURE OF THEIR POWER? The Crown Reigning monarch embodies the Crown - King Charles III It the supreme ruler in the government It's a hereditary monarch( meaning if the dad dies the son will be king) He rains over the government he doesn't govern it  Reigning monarch embodies the Crown - King Charles III The Crown Mary Simons(Governor general Edith Dumont( lieutenant governor The Crown : Power Constitution Act, 1867 - Section 9 The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the King However this is not the case cuz we have - Reserved power - prerogative powers - convention So, it's like if you and your friends are playing on the playground, you all get to make the rules for your game, but there’s still someone in charge of making sure everything runs smoothly—the King, in this case. The King’s job is to make sure the playground stays safe and everyone follows the big, important rules. In short: The King still has the ultimate authority, even though Canada makes its own decisions.  Governor-General (de facto) Head of State Duties: Letters Patent (1949) convention This tell the government generals right guardian of responsible government to act Royal Assent( no bill can be signed off till Works under the king they signed it ) prerogative powers( prolong parlament) The prime minister makes the design ceremonial duties of who the government general is appointed (French and English) government generals are symbolic They get the job for 5 years but can be for 7  King-Byng Affair, 1926 Prerogative Power Mackenzie King Lord Byng. Arthur Meighan Prerogative Power British Columba (2017) Andrew Weaver (Greens ) & John Horgan (NDP) SHOULD CANADA ABOLISH THE MONARCHY? monarchists vs. republicans The republicans are asking for a replacement for the monarchy WHAT IS THE POLITICAL EXECUTIVE? WHAT IS THE NATURE OF THEIR POWER? The Cabinet When you hear the word government they mean the cabinet(they are a small group of people) If we act like this is a car the government is the driver “the government” Constitution Act, 1867 (Section 11) “There shall be a Council to aid and advise in the Government of Canada, to be styled the King's Privy Council for Canada”(AKA the cabinet) The King's Privy Council is made of all the people who were appointed minister of the crown The cabinet exercise the powers of the crown Convention The Prime Minister They are recognized by convention not by statutory law head of government “primus inter pares”= First among equals (=) (PM to the cabinet)(PM still has more power) directing government The PM does - Direct the government - organizes administrative structure government - Has Appointment advice  The Cabinet prime minister “the government” ministers of the Crown To be this you have to be ministers of state(develop and appointed by GG on advice coordinate policies ) of PM - None under trudeau serve at the pleasure of the PM parliamentary secretaries cabinet shuffle (chage thighs (not members of cabinet) around) (they help Cabinet ministers with their job)  Cabinet Conventions the 2 types individual ministerial responsibility( it is minister are accountable to the house of comin for actions made by other department, they defend policy made in the ministry) collective ministerial responsibility( it is idea that the cabin talks in private, and you have to agree with actions made by the cabinet no matter what) solidarity secrecy What we want in Cabinet Composition seniority province/region ethnicity & language gender portfolio political Cabinet Composition 29th Canadian Ministry – 2015 to present most recent shuffle: July 27, 2023 38 members including the PM (38 parliamentary secretaries*) all regions represented – but no minister from SK (LPC did not win any seats there) gender parity – women is several high- profile portfolios Freeland – Deputy PM and Minister of Finance (1st) Joly – Minister of Foreign Affairs (2nd - Freeland) includes racialized openly LGBTǪ2S+ ministers Cabinet Committees The Other First Ministers NWT & NU NWT and NU uses a consensus style of government - formation of cabinet (premier and cabinet) differs from the rest of Canada - Is the PM too powerful? Yes no - Prime minister centered cabinet - the complexity of government - they have appointment power - Caucus - Party discipline - Federalism-premiers - Russell: Minority government, indigenous - PMO and PCO(pco advice the pm people and courts and there job is to protect the PM) - Majority government Key Points The King is the Head of The Governor-General and the State, though her powers Lieutenant Governors mainly Canada is a constitutional are carried out by the perform ceremonial duties and monarchy with a dual Governor-General (federally) usually act on the advice of executive and by the Lieutenant the Cabinet or the PM, though – formal and political Governors in the provinces they retain prerogative power Political power is wielded by the Although the PM is considered cabinet headed by the PM, who primus inter pares, the PM is normally come from the the significant figure in legislative branch (fusion of Canadian government powers) parlament  Westminster Charter Pillars of parliamentar Federalism of Rights y democracy and Freedoms Canadian Governme nt Parliament Objectives What is Parliament? What are the general functions of Senate? What’s wrong with the Senate? Can it be fixed? What are the general functions House of Commons? Why is it so important to Canadian Politics? Who comprises the House of Commons? Slide below parliamentary sovereignty bicameral fusion of powers/responsibl e government Parliamentary sovereignty - Parliamentary sovereignty, also known as parliamentary supremacy or legislative supremacy, is a concept in constitutional law. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies Parliamentary sovereignty means that Parliament is the supreme legal authority in the UK. It can create, amend, or end any law. No other body, including the courts, can override its decisions. This principle means Parliament can make or unmake any law, and no other institution can challenge its laws. Bicameral -(of a legislative body) having two branches or chambers Fusion of powers/ responsible government  WHAT ARE THE GENERAL FUNCTIONS OF SENATE? WHAT’S WRONG WITH THE SENATE? CAN IT BE FIXED? The Senate – Roles(slide 199) 1 legislative review - ‘sober second thought’ not a confidence chamber! 2 regional representation (not provincial) = interstate federalism(the relationship between states in a federal system)  The senate roles 1. Legislative review - Act as a check for the majority of the house of commons - Sober thought(relaxed minds to make acts) - The senate can not stop the making of a constitutional amendment - The senate is not a confidence camber meaning it can’t affect the government 2. Give a voice in the senate  The Senate: Seat Allocation region (105) Section 26 – additional senators The Senate – Appointment(on slide below ) appointed constitutional qualifications age Citizenship property residency removal - difficult once partisan now not more independent (?)  The senate to be appointment You have to be 30+ Be a canada citizenship Most owe property of 4000$ net worth or more You must live in the place you are appointment to It is difficult to removal of them Once partisan now not more independent The Senate: Reform “An appointed second chamber might have a chance of acceptance in more democratic times if its members were selected clearly and consistently on the basis of merit – in other words, the special knowledge or experience they could bring to the legislative process. But prime ministers – all prime ministers – have been unable to resist the tug of patronage in advising the Governor General on whom should be appointed to the Senate” (Russell, 2023). The reform mostly does 2 things :Sup units and legislative review The Senate: Reform Options abolishment provincial input – (House of Federations) triple-e senators-in-waiting Harper proposals (2012): Term limits Selection process Ǫuébec sued the Canadian government over unilateral changes The Senate: Reform Options Reference re Senate Reform (2014) Can Parliament, unilaterally, change...? 1. Senate Term Limits 1. No --> 7/50 2. Senate Appointment rule For 1,2 and 3 Consultations: National Process 2. No --> 7/50 you have to rule use 7/50 3. Senate Appointment 3. No --> 7/50 rule Consultations: Provincial Processes 4. Yes, not in 4. Change Property Ǫualifications Ǫuébec 5. Senate Abolition 5. No – unanimity SCC: any changes that alter the “fundamental nature and role” of the Senate requires provincial consent The Senate: Reform Options abolishment provincial input – (House of Federations) triple-e - equal, elected and effective senators-in-waiting Harper proposals: Term limits Selection process Trudeau process - Independent Advisory Board for Senate Appointments (2015) Senate Appointment Application Constitutional Requirements Government Requirements Age You have to be a Non-Partisanship Citizenship Knowledge Requirement Net worth Personal Ǫualities Resident  Despite most senators now being independent – and no senators being formally affiliated with the Liberal Party – critics have charged that the prime minister has appointed dozens of senators who agree with his world view, even if they don’t wear his political team’s jersey. In other words, he has appointed Liberal senators in all but name (Russell, 2023). SENATE REFORM reform options 6% of Canadians support allowing the Prime Minister to appoint senators 17% of Canadians in favour having a selection committee that would appoint non-partisan senators 33% of Canadians in favour of an elected senate 14% of Canadians would abolish the senate Trudeau changes: 28% of Canadians think the changes implemented by Trudeau have made the Senate of Canada better than it was before he took office, while 31% see no change and 20% believe the situation is now worse. (ResearchCo, 2022) DOES ANYONE LIKE THE SENATE? “its much-praised committee system, the Senate produced inquiry reports containing policy analysis and ideas that led to future legislation or contributed to administrative change within government. On a number of occasions over the years, the Senate as an institution, and more often individual senators, promoted or defended the rights of minorities” (Thomas, 2019). Keys Points Parliament is made up of three elements: Crown, Senate and House of Commons – all three must involved for bills to become law Senate, the upper chamber, does not enjoy a lot of legitimacy in Canada; changed through non-constitutional reforms House of Commons: Confidence Chamber confidence chamber confidence votes Speech from the Throne budget However, in Canada, everything else is a confidence (not the case in the UK) -- party discipline House of Commons: Confidence Chamber What happens if the government loses the confidence of the majority of members of the legislature? the government advises the Governor General to call a general election the government resigns, so that a new government can be formed (from within the legislature) “... what cannot happen is nothing (Aucoin et al., 2004: 22) The Senate is not a confidence chamber!  Westminster parliamentar Federalis Charter of Rights Pillars of y democracy m and Freedoms Canadian Governme nt Parliament Objectives What is Parliament? What are the general functions House of Commons? Why is it so important to Canadian Politics? Who comprises the House of Commons? What are the general functions of Senate? What’s wrong with the Senate? Can it be fixed?  parliamentary sovereignty bicameral The provinces are unicameral – no senate/upper chamber in the provinces fusion of powers/responsible government What is Parliament? Section 17, CA 1867: There shall be One Parliament for Canada consisting of the King, an Upper House Styled the Senate, and the House of Commons. Concepts you should know from Two Cheers Confidence vote: This means the government needs to have enough support from members of the legislature (like parliament or congress). If they don’t, they might have to step down. True/Absolute Majority: This means more than half the votes. For example, if there are 100 members, you need at least 51 votes to have an absolute majority. False Majority: when a government seems to have more support than it really does. They might look strong, but their support is shaky and could fall apart. Hung Parliament: This happens when no one party has enough votes to form a majority. They may need to make deals with other parties to get things done. Minority Government: This is when a party has the most votes but less than half, so they have to rely on other parties to pass laws. House of Commons “The House of Commons is Canada’s premier legislative institution, although legislation is produced only when three parts of Parliament – crown, Senate and Commons – work in concert. Of the three, however, the Commons chamber, despite being qualifier of lower’ or the more antique ‘nether,’is pre-eminent” (Smith, 2008: 3). House of Commons: Seats Allocation representative democracy- citizen ask other to act on their behave 338 seats in the house of commons – but will increase to 343 AB (3), ON (1), and BC (1) by next election An MP should represent the same number of people rep by pop Senatorial Clause- no province can have fer set then they have in the senate Grandfather Clause- no province can have less seats than they did in the 34 parlament 2019  Press Galler y Governmen Speaker of the House Her t Members Prime Leader of Majesty’s Minister the Loyal (C Opposition Opposition Private Cabinet) Members/ Backbenchers Private Members Slide 225 Government side 1. the speaker of the house: comes from the government party, usually. This happens because there is a convention that in the event of a tie the speaker will always vote to maintain the government. The speaker does not vote unless a tie. 2. the house is divided like a court the government is on the right and the opposition is on the left. The front bench is made up of the cabinet. 3. You cannot sit in front of the bench if you are not members of the cabinet. 4. Backbencher is a member of the governing party that is not a member of the government. 5. A private member can be liberal conservative etc. backbencher is a member of the governing party that is not in cabinet. On the other side we have his majesty's loyal opposition “important title” 6. sending a signal that to oppose the government to not agree with everything the government said is not a sign of loyalty to the crown. 7. The job of the opposition is to not agree with the government. To be opposition is to still be loyal to the crown. 8. Your opposing one another, you’re not agreeing with one another “like a court”. 9. everyone is a private member on the opposition. Leader of the opposition and prime minister always sit across from one another. 10. Press gallery: people need to be able to know what is going on in there. There are people there to watch and be the watchdog for the rest of us.  House of Commons- Functions representation (election) conferring legitimacy- the belf the rules are widely accepted scrutiny (responsible government)- to insure reasonable government AKA they scrutinize it recruitment (cabinet)- they do law making financing government - the house has the power of the purse mean they can't spend money is spent unless the house say so political education - House of Commons: Party Discipline party discipline: is the idea that MP barley vote on party lines party whip: appointed by each political party to ensure party discipline, manage attendance, and make sure MPs vote in line with the party's stance. Whips also play a role in enforcing party unity and dealing with rebellions or dissenting members. Caucus: is a private gathering of members of a political party to discuss strategy, policies, and key issues, and to align on voting or other decisions. free vote: a vote where the individual is not required to follow party lines or instructions and can vote according to their personal beliefs or conscience. This often happens in legislative bodies, where certain issues are considered less partisan and allow for more personal choice in voting. House of Commons: Independents The LEGISLATIVE PROCESS bills private public C91 or S91 House of Commons “The House of Commons is Canada’s premier legislative institution, although legislation is produced only when three parts of Parliament – crown, Senate and Commons – work in concert. Of the three, however, the Commons chamber, despite being qualifier of lower’ or the more antique ‘nether,’is pre-eminent” (Smith, 2008: 3). fusion of powers confidence chamber power of the purse elected Keys Points Parliament is made up of three elements: Crown, Senate and House of Commons – all three must involved for bills to become law House of Common, the lower house, is the most important legislative body Party discipline is an important issue in Canadian politics Senate, the upper chamber, does not enjoy a lot of legitimacy in Canada; changed through non-constitutional reforms Questions What is a political right? How have rights been protected in Canada? What is the Charter? What is in it? What are the implications of the Charter on the political system? Charter of Rights and Freedoms The decision in 1982 to adopt The 3 Pillars of Canadian the Canadian Charter of Rights and Freedoms has been Government appropriately characterized as - Only 2 before 1982 the most radical break ever made with the nation's 1. Responsible parliamentary constitutional and legal traditions government (Smiley 1983, 89). 2. Federalism 3. Charter of Rights and Freedoms WHAT IS A POLITICAL RIGHT? Political right rights - entitlements that citizens can claim against the state and other citizens negative – freedom/right from( free from state interference) positive – right to do something(require others (usually the government) to take action to provide something, like services or support. Examples include the right to education, healthcare, or housing. They involve an obligation to ensure people have access to these benefits.) Right can be individual and collective Collective- (indiganes) How have rights been protected in Canada? Rights before the Charter British parliamentary system protects rights and individual freedoms common law & parliamentary supremacy Canadian Bill of Rights (1960) It was ineffective not entrenched Applied to federal only parliamentary supremacy intact – limited judicial review Charter of Rights and Freedom introduced in 1982 as part of the CA, 1982 entrenched (and written) constitution judicial review strike down legislative Law if it's not consistent with the Constitution. enforcement - Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [Sec 24(1)] Sec 32 – applies to Charter extends to the Parliament and government of Canada, the legislature and government of each province/territories (including municipal governments) courts are reactive not proactive What is in the Charter? Important Provisions in the Charter Section 25 - Aboriginal, treaty or other rights and freedoms Section 27 - Multicultural heritage Section 28 - Gender equality rights Section 29 - Denominational school rights and privileges Limitations On Charter Rights Section 1 Reasonable Limits guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  Limitations On Charter Rights Oakes test – a model employed by the court to weigh the democratic benefits and assess the constitutionality of a law that breaches certain Charter rights Has a right been violated? If yes,.... Pressing and substantial objective Balance and proportionality 1. rational connection: the limit must be rationally connected to the objective. It must not be arbitrary, unfair or based on irrational considerations 2. minimal impairment. : the limit must impair the right or freedom no more than is reasonably necessary to accomplish the objective 3. proportionality - whether there is proportionality between the effects of the measure that limits the right and the law's objective” in terms of the greater public good Limitations On Charter Rights Section 33 Notwithstanding Clause - Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15 of this Charter. fundamental freedoms, legal rights, equality rights sunset clause (5 years) 5 years cuz you will get a new government by that 5 years, so the new government can pick if they want to keep it Limitations On Charter Rights Sec 33 has never been used by the federal government nor most provinces( they don't want to use it cuz it's like saying we hate human rights). However, Ǫuébec has used it the most cuz they were betrayed: 1982 – 1985 - invoked the clause in every new law 2019 – Bill 21 - its religious symbols not allowed 2022 – Bill 96 – French language charter Ontario 2021 - to change Election Finances Act 2022 - to stop a teacher’s strike Saskatchewan 2017 - non-Catholic students doing Catholic school 2023 - pass a Parental Bill of Rights this is a law says kids need to ask their parents to change there pronouns (they/them) Debate over Sec. 33 In Favour Against unelected judges vs. inconsistent with entrenched elected legislators right five-year limit the Charter does not only some rights create absolute rights parliamentary sovereignty (section 1) respects federalism creates a hierarchy of rights rights protection for vulnerable people WHAT IS THE IMPACT OF THE CHARTER ON THE POLITICAL SYSTEM?  Has the Charter made the courts too powerful? YES NO judicial activism Charter dialogue ie Vriend v. Alberta (between court and (1998) legislatures) legalizing politics Charter proofing Impact of Charter on Canadian Politics parliamentary sovereignty - the supreme authority of parliament to make or repeal laws judicial review - the authority of the courts to invalidate laws passed by Parliament or provincial legislatures that they deem to be in violation of the Constitution Key Points The Charter is the third pillar of Canadian government (along with federalism and parliamentary government) The Charter has had an important impact on the functioning of Canadian politics THE COURTS Ǫuestions: The Courts What are the key features of the court system in Canada? How is the court system structured? What is the Supreme Court of Canada? Who’s on it? What does it do? Judiciary – Characteristics rule of law- we all have to follow the law, none of us are above the law, protest us form the government to work abatarly from the law Impartiality- we have right to a fair trial meaning they must not be biased , we also have the right to apel adversarial judicial independence- must be free from political interrences - Judges should be free from any interference of decision making. separate from other branches security of tenure- difficult to remove a sitting judge, a judge can only be removed through a joint address of parliament. And can only happen after an independent or impartial investigation. Difficult to remove- canadian judicial council (or provincial judicial councils) Judges act gives the CJC the right and duty to investigate the conduct of federal judges and make to parliament through the minister of justice that a judge be removed from office Financial security: make sure it is very difficult to bribe these people by job $.  Judiciary - Functions Guardianship:ensure the rule of law government cannot see their limits. judicial review Adjudication:definitely resolve disputes constitutional law cases administrative law cases law enforcement and administration: here to uphold the laws of society, such as fines or through other forms of punishments like prisonment. Guidance: Court System - Organization Hierarchical: the system allows more serious cases and appeals to proceed to higher courts. federal:the system divides jurisdiction and responsibilities between two orders of government - Provincial governments: exclusive jurisdiction over the administration (including power over judicial appointments) in lower provincial courts - Federal government: has exclusive jurisdiction over federal courts including the supreme court - Both share jurisdiction over intermediate or superior courts and provincial courts of appeal The Supreme Court of Canada  Supreme Court of Canada 1875- SCC is created – Supreme Court Act (act of a constitutional nature) secondary court until 1949 now it's the highest court 1949 appeal to the British JCPC abolished 1974 SCC wins control of agenda and right to choose which appeals to hear 1982 Constitution Act judicial review strengthened appellate court  SCC - Justices Docket : a calendar or list of cases for trial or people having cases pending CA, 1867, Section 96 - Governor-General appoints SCC justices on advice of PM Supreme Court Act The Supreme Court has 9 judges - - Chief Justice of Canada, - eight puisne judges serve until 75 years old professional experience - you either have to have been a judge of a superior court - or A barrister or advocate with at least 10 years of standing. requires that at least 3 judges must come from Ǫuébec convention - 3 from Ontario, 2 from Western Canada and 1 from the Atlantic provinces Chief Justice – Right Honourable Richard Wagner (2017) SCC – Appointments Paul Martin- committee to review the short list (2004) Stephen Harper 2006 - questioning by Commons committee with no veto; no involvement in selection 2008 - no process (they just appoint someone) 2012/13 - shortlist made by Parliamentary Committee, questioning by committee with no veto 2014- no process (they just appoint someone) SCC Appointments 2013 - Harper appointed Marc Nadon appointed to the SCC Nadon was a Ǫuebecker, but had most recently sat on the Federal Court of Appeal Supreme Court Act Sec 5 - “who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Sec 6 At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Ǫuebec or from among the advocates of that Province.” Ǫuébec government (PǪ) challenged appointment of Nadon Cuz this man does not fall under Sec 5 and 6 SCC Appointment 2013 – Conservative attempts to 2014 - Reference Re Supreme Court change the appointment qualification (Supreme Court Reference) language cuz of PǪ challenged 1. Can a person who was, at any time, an appointment advocate of at least 10 years standing Government sends reference to Supreme... Court regarding constitutionality of. be appointed pursuant to Sec 5 and Nadon's appointment and its Supreme 6? Court Act change. 2. Can Parliament, unilaterally, make (the above) change to SCA? Majority ruled that to be eligible for appointment to the Supreme Court, an individual must be a current member of the Ǫuebec bar Parliament cannot unilaterally change the Court’s composition or essential features. In small no SCC – Appointments Paul Martin (2004) – Committee Justin Trudeau – 2017 and to review and short list 2021 Stephen Harper 2006 - questioning by Commons committee with no veto