Charles Mwewa

The Charles Mwewa Lectures

CANADA`S POLITICAL & CONSTITUTIONAL LAW SYSTEM

  

British North American Act, 1867 (BNA Act)

· United Canada West and Canada East and New Brunswick and Nova Scotia into the Dominion of Canada

· Part of Canada`s Constitution

· Passed by the British Parliament

· It was renamed the Constitutional Act, 1867

  

Constitutional Act, 1867 (CA, 1867) and New Judicial Structure

· Section 91 of CA, 1867, federal government has the power over trade and commerce, banking and currency and coinage, taxation, the military and naval services, and criminal law, and to make “laws for the Peace, Order and Good Governance of Canada.”

· Section 92 of CA, 1867, provincial governments have the power over hospitals, municipal institutions, property and civil rights, and the administration of justice in the provinces, and education under section 93

· Section 129 of CA, 1867 continued all former provincial courts

· Quebec`s Civil Legal System was to continue as well

· Section 96 of CA, 1867, federal government would appoint superior, district and county court judges in each Canadian province

· Section 97 of CA, 1867, judges of higher courts in Common Law provinces would be selected from their respective bars  

· Section 98 of CA, 1867, judges of higher courts in Quebec Province would be selected from Quebec bar

· Section 99 of CA, 1867, superior court judges would hold office “during good behaviour” to ensure their judicial independence

· Section 100 of CA, 1867, these judges` salaries would be provided by the federal government

· Section 101 of CA, 1867, provided for the creation of the Supreme Court; to set up a “General Court of Appeal for Canada.” Before then, the highest court of appeal for Canada was the Judicial Committee of the Privy Council in Britain.

  

Problems with the CA, 1867

· Imperial statute 

· Absence of Bill of Rights

· Rigid divisions between federal and provincial powers

· Federalism – in Canada the division of state powers between the federal Parliament and the legislatures of the provinces and territories

  

Patriation of Canada’s CA, 1867 from England

· Appeals to Privy Council ended in 1949

· Rise of civil rights movements in the 1960s

· Prime Minister John Diefenbaker enacted the Canadian Bill of Rights in 1960: weak because it applied only to federal government, did not safeguard civil liberties and it was not part of the constitution

· Patriation: process of ending Canada’s need to go to England for changes to the BNA Act

· Prime Minister Trudeau wanted to patriate the BNA Act to Canada

· Trudeau`s efforts were successful when the English Parliament passed the Canada Act, 1982 which stopped Britain from amending Canada`s constitution 

· Canada Act, 1982 also contained the Constitutional Act, 1982 signed by Queen Elizabeth on April 17th, 1982 which gave to Canada the Charter of Rights and Freedoms, which is Part I of the Constitution Act, 1982.

· Section 52(1) of CCRF states, “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

· The CCRF and Rights (a discussion)

  

THE SUPREME COURT OF CANADA: JUDICIAL OPERATION AND THE COURT`S NATIONAL IMPORTANCE

· Appellant: a person who brings an appeal; the other side is called the Respondent

· Leave to Appeal: permission to appeal to the Supreme Court

· Appeal as a Right: in criminal cases, appeal is a right

· On Reference: the Supreme Court, on request, may advise the federal government on an issue, usually constitutional in nature

· Ratio Decidendi: reasons for the decision

· Factums: documents containing parties` written arguments and the law supporting them, required by appellate courts

· Intervenors: persons or groups, not party to a lawsuit, who can participate in the court proceedings with the court`s consent

· Reserve: in relation to a court, to delay giving a judgment to allow time for consideration

· Majority: of judges on an appeal panel who outnumber the minority

· Dissent: to disagree with the majority; a judgment written by a judge who disagrees with the majority

· Eight Puisne Judges and Chief Justice: composition of Supreme Court; three must come from Quebec

· While judges hold office during good behaviour, they must retire at age 75 years




image48