Politics and the Constitution
Overview:
1) Constitution Act, 1982: 2 odd bits
a) section 1: give and take
b) section 33 : "notwithstanding clause"
2) Patriation Reference
3) Meech Lake Accord
4) Reference re Secession
Constitution Act, 1982: section 1
*guarantees rights and freedoms, subject to certain limits (much more on this later)
Constitution Act, 1982: section 33
*Notwithstanding clause
* allows Federal Parliament or provincial legislatures to declare that a law applies "notwithstanding" (despite):
section 2: fundamental freedoms
sections 7 to 15: legal rights, equality rights
Question: why a notwithstanding clause?
Answer: Patriation Reference
Question for Supreme Court:
Did the Federal Government require the consent of the provinces before getting Constitution and Canada Acts passed by British Parliament?
Answer by Supreme Court:
*Well, no and yes.
*Legally, federal government had the right.
*By convention, it needed "substantial provincial agreement"
*But courts cannot enforce conventions...
* Moral influence of the court: result, more negotiations between fed/prov governments, and the notwithstanding clause
But Quebec is left out:
*Meech Lake Accord
*What is it? Proposed Constitutional Amendment (unanimity required)
*Proposed Changes:
1) Quebec is a distinct society
2) Provincial input into Supreme Court appointments
3) Provincial input into Senate appointments
4) Greater control for Quebec (and other provinces) over immigration
5) compensation for opting out of shared cost programs
Meech Lake defeated by Manitoba and Newfoundland
Quebec still not full part of constitution...
Secession (Separation, Independence, etc)
Supreme Court Questions:
1) Can Que. legislature declare unilateral secession under Canadian law?
2) Can Que. legislature declare unilateral secession under international law?
3) If Canadian and International law conflict, which one takes precedence?
Supreme Court Answers:
1) No and yes, sort of, maybe
2) No.
3) No real conflict
Principles involved in Answer 1:
a) federalism
b) democracy
c) constitutionalism and rule of law
d) respect for minorities