Final Review Flashcards
Define federalism + unitary gov’t
Federalism - division of state powers between the federal parliament in Ottawa and the legislatures of the provinces and territories
Unitary gov’t - form of gov’t whereby one supreme (wouldn’t work bc of maritimes and quebec - thought it would undermine their respective cultures)
Constiutional Law,
Separation-of-powers doctrine
- law dealing w/ with the distribution of governmental powers under Canada’s Constitution
- doctrine according to which separate powers are assigned to the legislative, executive, and judicial branches of government (The legislature makes the law, the executive implements the law, and the judiciary applies and interprets the law)
Legislature
Unicameral
Bicameral
Legislature- representative assembly charged under a constitution with making laws for a particular region or state
Unicameral - legislature w 1 house involved in the passage of legislation
Bicameral - legislature w 2 houses involved in the passage of legislation
4 Types of Statutes
- Constitutionally entrenched statutes - can’t be changed by ordinary federal or provincial legislation (ex. Constitution Act, Statute of Westminister, Canada Act, Constitution Act)
- Federal statutes
- Provincial statutes
- Territorial statutes
Division of powers, Constitutional Amendments
DoP - refers to the divided jurisdiction - between Parliament and provinces to make legislation in a federal state such as Canada
Constitutional Amendments - general procedure requires the agreement of parliament and 2/3 of the provinces w/ the support of at least 50% of the population
Federal Statutes & Federal Jurisdiction
Bicameral - 2 houses involved in the making of statutes: House of Commons and the Senate - HoC makes legislation, it can only be passed while Parliament is in session
S91,94A and 95 give federal jurisdiction - 30 specific subject areas that Pment has exclusive jurisdiction over
Double aspect + federal paramountcy doctrine
Double aspect - if a law falls fully w/in the jurisdiction of federal and provincial government
Federal Paramountcy Doctrine - in the event of conflict between a federal law and a provincial law where they both have jurisdiction, the federal law overrides the prov one
Peace, Order and Good power
general residuary power given to parliament to fill in the gaps (justifies federal laws to regulate matters of national concern + temporarily deal with serious emergencies)
Quasi-legislative material
Non legislated written rules that relate to and affect a legal process
Not legally binding, but you must follow, observe and consider these rules as you would legislated rules
Ex. Gov’t policy statements, court directions, and certain kinds of agreements
Parliamentary Sovereignty
- doctrine that P’ment has ultimate and complete power to pass any law
3 principles:
1. P’ment can make or unmake any law
2. P’ment cannot bind itself against using its power in the future
3. A procedurally valid Act of Parliament cannot be questioned by the courts
Canadian elements proving pmentary total power: legislative power split between 2 levels of govt, entrenched charter that limits power of legislators, power to amend constitution is outside jurisdiction of either prov or fed
Responsible government
- A dual executive
- Elected office
- Reliance on convention
- convention - established and traditional rules on which gov’t is based on
Judicial Independece
- principle that judges should be free to make decisions based on the law and free from outside interference
1. security of tenure
2. financial security
3. administrative independence
Oakes Test, Fundamental Freedoms (S2)
- Social objective - pressing and substantial
- Proportionality - impair individual’s rights as little as possible, social benefit of law must outweigh the neg effects)
- fundamental freedoms:
- freedom of conscience/religion, freedom of thought, belief, opinion, and expression, freedom of peaceful assembly, freedom of association
Aboriginal Title
- Aboriginal rights are protected under sec 35
- Aboriginal title is based on exclusive occupancy
- Gov’t has a duty to consult in good faith with aboriginal people about use of aboriginal lands
Role of each branch of gov
Legislative - make legislation
Executive - carry out functions and duties under legislative regimes
Judicial - upholding rule of law and our constitution itself
2 special characteristics of constitutional law
- ENTRENCHED - its relatively permanent
2. SUPREME - any laws inconsistent with it are no force and effect
