Basics of Canadian Constitutional Structure:

Review:

Sources of Constitutional Law

1) Imperial Statutes
2) Canadian Statues
3) Royal Prerogative
4) Conventions
5) Case Law

1) Imperial Statutes

a) Laws passed for Canada by British Parliament &endash; colonial arrangement
b) practice continued until 1982
c) by 1931 British parliament only passed laws at request of Canadian parliament
d) Constitution Acts of 1867 and 1982 are Imperial Statutes

2) Canadian Statutes

a) Laws passed by Canadian parliament which have a constitutional function (e.g. distribution of powers, civil liberties, federal/provincial powers)
b) Examples:
c) Statutes creating new provinces
d) Provincial human rights codes
d) Statute creating Supreme Court 1875

3) Prerogative

a) Difficult concept: mostly historical
b)"arbitrary power exercised by the crown" (king, queen or representative)
c) Over time, has been narrowed by courts and by statute
d) Currently: treaties, declaring war, appointing Prime Minister, issuing passports, conferring honours
e) BUT all prerogative now exercise in accordance with Responsible Government. See:

4) Conventions

a) Rules of the constitution which are not enforced by the courts
b) prescribe the way in which legal powers can be exercised
c) Some transfer effective power from the legal holder to another official.
d) Most important example: Responsible Government

Responsible Government

The executive is "responsible" to the elected representatives of the people (democratic principle)

a) Queen or Governor General legally has the last word on legislation passed by parliament.
b) By convention, Queen or GG never refuses to accept parliament's direction
c) If Queen or GG did refuse, there would be no legal (court) recourse.
d) More on conventions next week (Reference re: Repatriation)

5) Case Law

Canadian constitutional law is interpreted by the Courts (including the Supreme Court).
Interpretation clarifies complicated sections, and settles conflicts.
Interpretation makes the law specific.
More on this later in the term.

Constitution Act, 1867

Preamble: constitution in principle like that of the United Kingdom

Section I: Preliminary
Section II: Union
Section III: Executive Power ***
Section IV: Legislative Power*** Senate and House of Commons
Section V: Provincial Constitutions
Section VI: Distribution of Legislative Powers***
Section VII: Judicature (Judiciary) ***
Section VIII: Revenues; Debts; Assets; Taxation
Section IX: Miscellaneous*** (Use of English and French languages)
Section X: Intercolonial Railway
Section XI: Admission of other Colonies.