LWSO 203 II Topic 3 Introduction to Legal Knowledge PDF

LWSO 203 Introduction to Legal Knowledge TOPIC 3: CONSTITUTIONS & THE CONSTITUTION OF CANADA Review 1) Overviewed a history of law & Canadian law 2) Considered different types of Canadian law 3) Outlined the sources of C...

LWSO 203 Introduction to Legal Knowledge TOPIC 3: CONSTITUTIONS & THE CONSTITUTION OF CANADA Review 1) Overviewed a history of law & Canadian law 2) Considered different types of Canadian law 3) Outlined the sources of Canadian law 4) Considered Indigenous law in relation to Canadian law  1) Define and detail constitutions Objectives in relation to law & society 2) Consider constitutional variation and the diffusion of powers 3) Outline the Canadian constitution Constitutions I Constitutions: the foundational (constitutional) charter and supreme laws that form the basis of a legal system and political society Constitutions constitute “Constitutions have come to symbolize the social contracts that societies make to ‘constitute’ themselves in which ‘the people’ confer authority to political actors in exchange for the establishment of order and the rule of law” (Dickovick et al, 2020)  Constitutions II Constitutions tend to: Express founding principles & shared values Establish the political system Establish fundamental laws of society Confer power to particular actors and/or institutions Limit the exercise of government power Outline the basic rights and obligations of citizens Highlight a particular history Contain aspirations  Constitutional Design Features Constitutional design: the particular features of constitutions Some constitutions are short, others are long Some constitutions are written/codified, others are unwritten/uncodified Most constitutions are designed to be difficult to change Most constitutions have particular amendment processes Many constitutions specify judicial review Many constitutions omit important political structures and legal processes  Constitutions & the Diffusion of Powers Most constitutions diffuse authority of the state = The division of powers = Systems of checks and balances Authority may be diffused horizontally Authority may be diffused vertically Separation of Powers Separation of powers: the division of government powers in a system between branches of government Executive branch Legislative branch Judicial branch -Judicial review  Federalism Federalism: a political system with multiple levels of government, each with a degree of autonomy with specified jurisdiction vs unitarism: a political system with no subnational governments possessing delegated authority/jurisdiction Asymmetrical decentralization  The Constitution of Canada 1764 Royal Proclamation -Transferred French territory to the UK 1867 British North America Act -Created the ‘Dominion of Canada’ 1931 Statute of Westminster -’Crown split’  The Constitution Act, 1982 Patriated the Constitution Includes judicial review Includes amending formulas (sections 38, 41, 43) -’7/50’ formula Includes the Canadian Charter of Rights and Freedoms  Canadian Federalism The British North America Act, 1867 established Canada as a federal state Section 91: outlines federal powers and jurisdiction -Section 91(27): gives federal government exclusive power to legislate on criminal law Section 92: outlines provincial powers/jurisdiction Section 36(2): sets out equalization payments between provinces Canada (Attorney General) v. PHS Community Services Society  Pre-Charter The Canadian Bill of Rights, 1960 -A federal statute R. v. Drybones (1970) SCR 282  The Canadian Charter of Rights and Freedoms I Section 1: The ‘limitations’ clause -2-part test: i) sufficient importance & ii) proportionality -I.e. Saskatchewan v. Whatcott (2013) 1 SCR 467 Section 2: sets out fundamental freedoms of Canadians Sections 3, 5 & 6: set out basic rights of Canadians Sections 7 – 14: sets out legal rights of Canadians Section 15: sets out equality rights of Canadians Sections 16 – 23: concerns minority- language rights  The Canadian Charter of Rights and Freedoms II Section 24: power of the courts to exclude certain evidence Sections 25 – 34: relate to the application of the Charter -Section 32: applies to both federal and provincial governments Section 33: Notwithstanding clause -Section 33(3) limits the clause to 5 years R. v. Morgentaler (1988) 1 SCR 30  Quebec’s Rejection of the Constitution Act, 1982 Quebec never approved the Constitution Act, 1982 1987 Meech Lake Accord 1992 Charlottetown Accord