Recent Constitutional Developments:
Canada Act, 1982 & Constitution Act, 1982
Review: Constitution Act, 1867
Executive: Queen and representatives
Legislative: parliament
Division of Powers (Fed./ Prov.)
* Sections 91 & 92 (93 - Education)
*Note: Federal and Provincial Governments are coordinate (not subordinate)
* municipal governments are subordinate to provincial government (see sec. 92)
Judiciary
*appointed by Governor General (by convention PM and/or cabinet)
*hold office on "good behaviour"
* can be removed by Senate and House of Commons
* more, see Beauregard
Language: English and French in Parliament and in Federal Courts
Canada Act, 1982
* Imperial Statute
* Very short
* Ends British (Imperial) legislative competence for Canada
* ushers in:
Constitution Act, 1982
Overview:
a) Charter of Rights and Freedoms
b) Amending Formula(s)
c) Supremacy, Definition and Entrenchment Clauses (section 52)
c) Section 52
1) Supremacy Clause: constitution as supreme law of the land
2) Definition: what is included (and what is left out?)
3) Entrenchment Clause: constitution can only be amended in accordance with the amending formula(s) contained within it
b) Amending Formulas
*sec.38 - "7/50" formula for general constitutional amendments
*sec.41 - "unanimity" formula for specific changes (executive, provincial representation, language, supreme court)
* other formulas for specific functions
a) Charter of Rights and Freedoms
1) enumerates rights and freedoms
2) specifies who is bound by the Charter
3) specifies who is to enforce the Charter
4) contains the "notwithstanding clause"
Rights and Freedoms
1) Fundamental Freedoms:
conscience, religion, speech, press, association and peaceful assembly
2) Democratic Rights
3) Mobility Rights
4) Legal Rights
*Life, liberty and security of the person
* unreasonable search and seizure
*arbitrary detention
*on arrest: a) reason; b) counsel; c) habeas corpus
* on charge: a) informed of specific offence; b) tried in reasonable time; c) not incriminate oneself; d) presumption of innocence; e) bail; f) jury trial; g) no crime without law; h) not to be tried twice; i) benefit of lesser punishment
* cruel and unusual punishment
5) Equality Rights
* Equal before the law (equal protection of the law)
6) Official Languages
7) Minority Language Education
Enforcement
*any court of competent jurisdiction
Application
*Charter is binding on Federal & Provincial governments (and municipal, derivatively, see sec. 92 Constitution Act, 1867)
Next:
1) "Notwithstanding Clause"
2) Patriation, conventions, legality, etc.
3) Meech Lake
4) Secession, separation, etc.