Tindal Chapter 7 Constitution, Charter

1
Tindal Chapter 7Constitution, Charter Courts

• Continuing conflict over constitution
• Significance and limitations of Charter
• Special roles of the courts

2
What Is a Constitution?

• Fundamental rules of the game re government
  system operations
• BNA Act is central document, now part of 1982
  Constitution Act
• Custom and convention equally important
• Courts also important, more so with delay in
  agreeing how to amend constitution

3
Patriating the Constitution

• New Act incorporated BNA Act of 1867
• More provincial power re natural resources
• Charter of Rights and Freedoms
• Most amendments based on 7 50 rule, so Quebec
  lost informal veto power
• No transfer of powers to provinces
• Quebec refused to sign

4
Once More Into the MeechThe Failed Amendment
Initiative

• Quebec gives Mulroney its 5 conditions
• recognition as distinct society
• increased immigration powers
• appoint 3 Supreme Court judges from Quebec
• containment of federal spending power
• veto on any future constitutional change
• Accord presented as fait accompli
• 3 years to ratify, but key players changed

5
No Accord on Charlottetown

• Much more comprehensive Canada round
• Complex Senate reform for West
• Aboriginal rights native self-government
• Still distinct society clause, but defined
• Also Canada clause to provide balance
• Expanded Commons, 25 Quebec seats
• Rejected by voters in 6 provinces, including
  Quebec

6
Current Constitutional Situation

• Separation vote almost passed October 95
• Supreme Court mixed ruling in August 98
• Bouchard reelected in December 98, but polls
  showed little support for referendum
• Feds introduced Clarity Bill December 99, with
  rules governing future referendums

7
Charter of Rights Freedoms

• Builds on tradition of common law rights
• Subject to reasonable limits as can be justified
  in free and democratic society
• Also limited by notwithstanding clause
• Significance of Charter
• equality regardless of origin or territory
  (contrary to Quebecs objectives)
• shifted power from parliament to courts

8
What Are Our Basic Rights?

• Freedom of
• speech
• press
• expression
• religion
• association
• assembly
• movement

• Freedom from
• discrimination
• censorship
• Right to
• privacy
• due process of law
• vote (political choice)
• English or French in dealings with Feds

9
The Courts

• They enforce the rule of law and the
  proceedings of natural justice
• Interpret constitution, especially Charter and
  division of powers
• Act as third branch of government, and judges
  have (too much?) security of tenure
• Debate about power of Supreme Court and how
  judges chosen