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Constitutional Law II: Lecture 2

Tolga Yalkin

on 4 December 2012

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Where Part I
Charter of Rights and Freedoms Part III
Equalization and Regional Disparities Part II
Rights of Aboriginal Peoples Part IV
Constitutional Conference
"Whereas the Provinces of Canada ... have expressed their Desire to be federally united into One Dominion ... with a Constitution similar in Principle to that of the United Kingdom." (cc) photo by theaucitron on Flickr Constitution Act 1982, s. 52(2) Constitution Act 1982 The Constitution of Canada includes:
(a) the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b). 1.Constitution Act 1867
2.Manitoba Act 1870
3.Rupert’s Land and North-Western Territory Order
4.British Columbia Terms of Union
5.Constitution Act, 1871
6.Prince Edward Island Terms of Union
7.Parliament of Canada Act, 1875
8.Adjacent Territories Order
9.Constitution Act, 1886
10.Canada (Ontario Boundary) Act, 1889
11.Alberta Act
12.Saskatchewan Act
13.Constitution Act, 1907
14.Constitution Act, 1915
15.Constitution Act, 1930
16.Statute of Westminster, 1931
17.Constitution Act, 1940
18.Newfoundland Act
19.Constitution Act, 1960
20.Constitution Act, 1964
21.Constitution Act, 1965
22.Constitution Act, 1974
23.Constitution Act (No. 1), 1975
24.Constitution Act (No. 2), 1975 Constitution Act 1867 Preamble Written
The Constitution of Canada "includes" ... Sec 52(2) Written
Text Part V
Procedure Part VI
Amendments to Constitution Act 1867 Part VI
Distribution of Legislative Powers Part III
Power Part II
Union Part I
Preliminiary Part IV
Power Part V
Provincial Constitutions Part VII
Judicature Part VIII
Revenues; debts; assets; taxation Part XI
Admission of Other Colonies Unwritten Constitution Judicial Independence Parliamentary Privilege Full Faith and Credit Doctrine of Paramountcy Federalism, democracy, constitutionalism, and protection of minorities Rule of Law Written text of
Constitution Act 1982 Written text of
Constitution Act 1867 Reduction salaries for provincial court judges Charter s.11(d) Lamer CJ (for the majority) "11(d). Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." Judicial independence is an "unwritten constitutional principle" that derives its normativity from the Preamble. The written provisions of the constitution dealing with judicial independence are not exhaustive. McLachlin in New Brunswick Broadcasting found the term "includes" as justifying existence of unwritten constitutional principles But, Lamer CJ says our constitution is based on a "definitive written constitution". How do we reconcile this with the existence of unwritten constitutional principles? "A constitution similar in principle to that of the UK" Reference Re Manitoba Language Rights [1985]: The Supreme Court upheld the legality of a Manitoba act that had not been published in French and English as required by the Manitoba Constitution so as not to deprive those individuals who had acted pusuant to the act during its time on the statute books. Huson v Township of South Norwich [1895]: Federal law prevails over provincial where there is a conflict and both laws are constitutional. New Brunswick Broadcasting [1993]:
Parliamentary privileges exist for provincial legislatures. Reference Re Succession [1998] Freedom of Speech The Preamble "The express provisions of the Constitution should be understood as elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867." "[T]he express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to te castle of the Constitution, that the true source of our commitment to this foundational principle is located. La Forest J (dissenting in part) "There is no ... historical basis ... for the idea that Parliament cannot interfere with judicial independence. At the time of Confederation (and indeed to this day), the British Constitution did not contemplate the notion that Parliament was limited in its ability to deal with judges." "The express provisions of the Constitution are not, as the CJ contends, "elaborations of the underlying , unwritten, and organizing principles found in he preamble to the Constitution Act, 1867." On the contrary, they are the the Constitution. To assert otherwise is to subvert the democratic foundation of judicial review." Independent commissions tasked to review judicial remuneration in advance of changes and make recommendations to government from which government can rationally depart so long as it provides explanations why, AND no direct negotiations can ever be entered into between judges and the executive, BUT judges can make recommendations. No need for commissions. Changes to judges salaries that were not designed to influence judicial decisions are fine, and therefore, general cuts across the civil service, applied equally to judges, would be viewed as acceptable. Direct negotiations okay. Upshot? Unwritten constitutional principles exist (the entire court agrees on this). What they are, however, is a different question. According to La Forest J, the Majority plays fast and lose with their application of unwritten principles because (a) they must have truly existed at confederation; (b) they must not have been displaced by the written text. Unwritten Principles Democracy Protection of Minorities Constitutionalism and the Rule of Law Federalism "Substantial legal obligations" "A functioning democracy requires a continuous process of discussion. The Constitution mandates government by democratic legislatures, and an executive accountable to them, "resting ultimately on public opinion reached by discussion and the interplay of ideas." Rule of Law:
(1) Law is supreme over acts of both government and private persons;
(2) An actual order of positive laws must be created and maintained;
(3) The exercise of all public power must find its ultimate source in a legal rule; Constitutionalism:
(1) All government action must comply with the Constitution Constitutionalism is not inconsistent with democracy. Entrenched constitutions just outline what majority must be consulted for funamental balances of political power. Democracy and Federalism Conclusion Outcome not clear Non-justiciable Democracy A referendum in which the majority of the population answered "yes" to a clear question of succession would "demand that considerable weight be given to it." Such referendum would give rise to a reciprocal obligation on federal government and sister provinces to negotiate in a way that would be consistent with democracy, federalism, constitutionalism and the rule of law, and protection of minorities. So, what is this? Somewhere between:
a right to secession only to sort out the details; and
no obligation to negotiate in good faith. "[The federal government and provinces] cannot exercise their rights in such a way as to amount to an absolute denial of Quebec's rights, and similarly, that so long as Quebec exercises its right while respecting the rights of others, it may propose secession and seek to achieve it through negotiation." "While the negotiators would have to contemplate the possibility of secession, there would be no absolute legal entitlement to it and no assumption that an agreement reconciling all relevant rights and obligations would actually be reached." "The Court has no supervisory role over the political aspects of constitutional negotiations." (1) Quebec has no right to unilateral secession.
(2) However, "a clear majority on a clear question" imposes an duty on the the federal government and the provinces to negotiate in good faith.
(3) This does not mean that the result of the negotiations have to produce secession.
(4) For a negotiation to be legitimate, it must be premised on democracy, federalism, constitutionalism and the rule of law, the protection of minorities.
(5) Failure to abide by any of the principles identified in the judgment will result in a lack of legal recognition and the international level.
(6) The court would play no supervisory role in the process.
(7) A unilateral right to succession by the principle of self-determination does not exist for Quebec, as that doctrine is reserved for "peoples" of a colonial empire or oppressed people.
(8) All the forgoing does not mean that de facto secession might, in due course, result in the recognition of a new, sovereign nation. Now you've seen constitutional principles in practice Lord Cooke Lecture (2008) - Wellington NZ Basic premise: There are certain aspects so implicit in our constitutional order that they might be said to be necessarily incidental to it. These principles, while unwritten, have the same constitutional force as express provisions of the Constitution.

Analogy: Your parents have rules for you about curfews, homework, and extra curricular activities. The absence of an express rule not to lie about your compliance with these rules does not mean that the rule does not exist. It is implicit in the existence of the other rules. "Unwritten principles are not the arbitrary or subjective view of this judge or that. Rather, they are ascertained by a rigorous process of legal reasoning. Where, having regard to convention, written provisions and internally affirmed values, it is clear that a nation and its people adhere to a particular fundamental principle or norm, then it is the court's duty to recognize it. This is not law-making in the legislative sense, but legitimate judicial work." Principles Conventions Obligatory rules that are not enforced by the courts. Examples:
(1) The GG is appointed on the advice of the PM.
(2) The GG will almost always act on the advice of the PM save for particular crisis-type situations.
(3) PM will advise the GG to dissolve Parliament if s/he looses a confidence, money vote, or general election. How to identify a convention:
(1) What are the precedents?
(2) Did the actors in those precedents believe they were bound?
(3) Is there a reason for the rule? Patriation Reference [1981]
Question: Is the consent of the provinces required to amend the constitution? Constitution = Conventions + Law "Conventions, by their, nature develop in the political field, and it will be for the political actors, not this court, to determine the degree of political consent required."

"It is sufficient for the Court to decide that at least a substantial measure of provincial consent is required and to decide further whether the situation before the Court meets this requirement. The situation is one where Ontario and New Brunswick agree with the proposed amendments where the eight other Provinces oppose it. By no conceivable standard could this situation be thought to pass muster." Majority (1) Constitutional conventions are not law - they are not enforceable by the courts ever.
(2) Despite the fact that they are not law, they may in fact be more important.
(3) However, violation of a convention is still "unconstitutional in the conventional sense"
(4) In this case, there exists a constitutional convention for "substantial consent" of the Provinces.
(5) The court cannot determine whether the degree of consent present is sufficient.
(6) In this case, the degree of consent (Ontario and Manitoba) was not sufficient. Minority (1) When referred questions, the Court can only answer the specific question asked.
(2) Constitutional conventions "must be recognized, known and understood with sufficient clarity that conformance is possible and a breach of conformance immediately discernible. ... Recognized conventions are "definite, understandable and understood."
(3) The difficulty in defining "substantial consent" results in uncertainty and means that a convention cannot emerge. Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ Laskin CJC, Estey and McIntyre JJ ` Osborne v Canada [1991]
Public Service Employment Act:
Prohibits public servants from working for or against a candidate.
Prohibits public servants from working for a political party.
Provides that attending political meetings or contributing money is not a contravention of the Act.
Challenged on the basis of 2(b) and 2(d) of the Charter.

Question: If public service neutrality is a constitutional convention, can it be said that it is unconstitutional to enshrine it in law? Conventions Principles Provincial Judges' Reference [1997]
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