HISTORY OF THE CONSTITUTION: AN INTRODUCTION TO CONSTITUTIONAL LAW

CLN4U

What is a Constitution?

Why are constitutions important?

Focus Questions

Constitution

Constitution

A legal framework or guideline that establishes how power and authority within a country is exercised

It also establishes the limits of that power

defines of the main institutions of government: i.e. legislative, executive and judicial responsibilities

can be unwritten: i.e. Great Britain

What are possible consequences of having a weak or vague constitution?

Focus Question?

Constitutional Law

Comprises the principles of the constitution

Enforces the powers that are assigned by the constitution through the country’s legal institutions

Defines the roles of the people who operate within those institutions

Sources of the Constitutional Law1. The written constitution

BNA Act 1867 and all future amendments Constitution Act of 1982

2. The unwritten constitution Cabinet system Party system Parliamentary democracy All come from the phrase. “a constitution similar in

principle to that of the United Kingdom”

3. Court decisions—precedents are set which affect Constitutional law (e.g. same sex marriage)

Conflict and Compromise: Canada’s Constitutional History

Timeline of key Constitutional Documents

Royal Proclamation - 1763Royal Proclamation - 1763

Established common law of England in all British territories in North America

The Crown owned all non privately held land Outlined certain rights for aboriginal peoples-

described the relationship between aboriginal peoples and the crown as a nation to nation

Prevented anyone from negotiating land deals with Aboriginal peoples without the authority of the Crown

Granted aboriginal peoples title to use and occupy the land

Proclamation is still referenced to uphold the rights of Aboriginal peoples.

Quebec Act -1774Quebec Act -1774

It guaranteed free practice of the Catholic faith.

It restored the use of the French civil law for private matters while maintaining the use of the English common law for public administration, including criminal prosecution. Reflected in the current composition of the

Supreme Court where three of the nine justices are from Quebec because of their expertise and experience in the Civil Code of Quebec

Constitutional Act -1791Constitutional Act -1791

Divided British North America into Upper and Lower Canada

Upper Canada received English law and institutions Lower Canada retained French civil law and

institutions, including seigneurial (semi-feudal) land tenancy, and the privileges accorded to the Roman Catholic Church.

Established a government structure comprised of a Lieutenant-Governor, executive and Legislative assembly

Executive was responsible to the Lieutenant-Governor and not the elected Legislative assembly

Act Of Union - 1840Act Of Union - 1840

Unified Upper and Lower Canada Established responsible government with the

executive now responsible to the elected Legislative Assembly

Lieutenant-Governor was now required to implement the will of the Legislative Assembly

Established a British parliamentary style of democracy

the Act contained measures banning French from official use in the Legislative Assembly.

the distinct legal systems of the two colonies was retained

Constitution Act - 1867Constitution Act - 1867

Canada formed, 4 provinces (Ontario, Quebec, New Brunswick, Nova Scotia)

BNA–Dominion of Canada enacted by the British Parliament Established that Canada’s system of government

would be modeled on the British parliamentary system

set out division of powers between Federal and Provincial

guaranteed language, religion and cultural rights for French Canadians

Constitutional Monarchy preservation of French civil law in Quebec

Statute of Westminster - 1931 amendment by British Parliament Ended Canada’s colonial status Canadian government could now change laws

previously passed as acts of British parliament that applied to Canada

granted more autonomy for Canada full independence for Canada, responsibility for

foreign affairs Canada could still not amend the BNA Act,

because federal and provincial governments could not agree on amending formula

Supreme Court of Canada - 1949 Established the Supreme Court of

Canada as the highest and final court of appeal in the Country

Supreme Court Act of1875 established the Supreme Court of Canada, however it was not the supreme authority on Canadian law until 1949

before this time, the highest court was the English Privy Council

The Supreme Court Today

final court of appeal; hears approx 120 cases per year appeal must be based on issue of law or an error on

the part of a judge usually nine judges (Beverly McLaughlin is Chief

Justice) each case is allotted two hours (one hour per side) justices (judges) are appointed from Superior Court

judges or lawyers with at least 10 years experience they must reside in Ottawa they must not have any other jobs or businesses they must retire at 75 years

Constitution Act -1982Constitution Act -1982

Constitution was patriated (brought home by Prime Minister Trudeau

Included an amending formula reached by all provinces except Quebec (they wanted veto power)

Amending formula; any change to the Constitution must be agreed on by 2/3 of the provinces comprising 50% of the population

Incorporated the Charter of Rights and Freedoms, entrenching the rights of Canadians