POL 221 CLASS SCHEDULE 17-1

Jan 5 INTRODUCTION 

Organizational Meeting - no readings, no tutorials

 Jan 12 : THE CONSTITUTION I

• Marland & Wesley, pp.36.68

Lecture Notes:

The evolution of Canada's territory can be followed at maps available from the National Atlas of Canada; select "Historical" and then "Territorial Evolution."
 

Key dates in Canada's path to independence:

"The Dominion of Canada" created on July 1, 1867. But that is not the date of Canada's independence.

Canada's independence was the process of evolution over a long period of time.

1763 - The legal end of warfare between Britain and France

• The Treaty of Paris, 1763
• The Royal Proclamation, 1763

1865 - Colonial Laws Validity Act - prevented colonial legislatures from amending or repealing laws passed by the Imperial Parliament; also provided that colonial laws that conflicted with Imperial statutes would be invalid.

1867 - Confederation: Nova Scotia, New Brunswick, & the Province of Canada combine into the Dominion of Canada. The Dominion was created by the British North America Act, 1867 (The BNA Act); this law is now referred to as the Constitution Act, 1867.

1923 - Halibut Treaty: The first international treaty negotiated by Canadian representative without British involvement. The Halibut treaty was reached with the United States. The treaty was still signed by the King as Emperor.

1926, 1929, 1930 - Imperial conferences which established the political autonomy of the self-governing Dominions. Included in the agreements was one that the Dominions could chose their own Governors General. The 1926 Imperial Conference resulted in the "Balfour Declaration:"

They [the UK and the dominions] are autonomous communities within the British Empire, equal in status, in no way subordinate to one another in any aspect of their domestic or international affairs, although united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.

The 1930 conference decided that the King would be advised by the relevant Dominion government on the appointment of future Governors General.

1931 - The Statute of Westminster: provided that legislation passed by the Dominion Parliaments could amend or repeal legislation passed by the Imperial Parliament in London. The big exception was the collection of British North America Acts, which could still only be changed (for the most part) by the British.

1939 - The King declares war separately for Canada.

1949 - The Supreme Court of Canada finally becomes the last court of appeal for Canada, replacing the Judicial Committee of the Privy Council in London.

1982 - The Canada Act, 1982 passed by the British Parliament ends any further British legislative authority over Canada. It includes the Constitution Act, 1982 that provides the Charter of Rights and a Canadian process for amending the Constitution. This Act provided for what is known as the patriation of the Constitution - which means that the Canada's Constitution could finally be amended domestically, rather than by the UK Parliament.

The formal Constitution of Canada is defined in s.52(2) of the Constitution Act, 1982.  The Constitution is comprised of 26 statutes and 11 formal amendments made since 1982.

The whole constitution of Canada involves all the rules, customs, and principles relating to the structure and exercise of government power in Canada. 

The whole constitution of Canada comprised of:

• formal documents of the Constitution
• amendments to the Constitution
• other statutes
• judicial decisions
• constitutional conventions
• unwritten constitutional principles
• political practices

The nature of Canadian federalism is has been changed in important ways by judicial interpretation distribution of powers between the federal and provincial governments. The courts have also defined Canadians' rights by interpreting the Charter of Rights and other human rights legislation.

Examples of other important court cases on the constitution include the Supreme Court of Canada's decision on Patriation in 1982 and on Quebec separation in 1998..

Main principles of the Canadian constitution:

• democracy
• federalism
• parliamentary (responsible government)
• constitutional monarchy
• rule of law
• judicial review

Jan 19: THE CONSTITUTION II

• Heard, ch.1 (optional) – available through Canvas

Lecture Notes:

Key words & concepts:

• constitutional conventions
• rules of internal morality
• rules of critical morality
• customs
• patriation
• preamble of the Constitution Act, 1867

Formal Constitution described in s.52: The Canada Act, 1982 plus 25 other statutes and orders-in-council listed in the Schedule  to the Constitution Act, 1982.

52. (1) 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.

(2) 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).

(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

The two main constitutional documents that define the powers of Canadian governments are:

• The Constitution Act, 1867. This statute of the British Parliament created Canada in 1867 and set out the division of powers between the federal and provincial governments. Its original name was the British North America Act, 1867 - often referred to as the "BNA Act", but this was changed in 1982. 
• The Constitution Act, 1982. This Act created for the first time a set of amending procedures for the Constitution to be amended entirely in Canada. Until 1982, many changes to the then British North America Acts had to be carried out by the British Parliament. This Act also includes the Charter of Rights & Freedoms. The Constitution Act, 1982, was actually created as a part of the Canada Act, 1982. The Canada Act ended any further British legislative authority over Canada. 

An interesting collection of Canadian constitutional and historical documents can be found at www.solon.org.

Constitutional conventions are binding rules of political behaviour that are not laws. Conventions are also different from customs or usages, because conventions protect or enable a constitutional principle; customs are traditional patterns of behaviour with ceremonial value.

Traditional authorities, such as Eugene Forsey and Sir Ivor Jennings have argued that one should add to this definition of conventions wording that implies that they are considered binding by those to whom they apply.  Unfortunately, this ensures that conventions are rules of internal morality. Conventions need to operate as a rule of  critical morality if they are to bind political actors.

Traditional approach to identifying conventions developed by Jennings:

• relevant precedents, past events
• the statements of the political actors in the precedents reviewed
• what constitutional principle is at stake

But statements of political actors may be useful but not determinative because actors can be

• ignorant of the rules
• mistaken in their honestly held belief
• badly advised as to what the rules are
• knowingly false - actor may be trying to get away with something they know to be wrong

Past precedents can be out of date and not reflective of contemporary consensus of appropriate behaviour.

Constitutional Change

Constitutional change occurs through:

• political practice or agreement changing constitutional conventions
• new or amended legislation dealing with constitutional matters
• judicial interpretation
• formal amendment of the constitution of Canada
  • Amending formulas in Part V of the Constitution Act, 1982:
• "7 & 50" - the general formula
  • Regional Veto Formula - Constitutional Amendments Act, 1996
• joint Parliament and 1 or more provincial legislature
• unanimous
• unilateral federal amendment through legislation
• unilateral provincial amendment through legislation to the "constitution of the province"
• unilateral declaration of independence

In 1998 the Supreme Court of Canada decided the Reference to on Quebec Secession. As a result, the Parliament of Canada passed the Clarity Act in 2000, and the Quebec National Assembly responded with An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State

There have been eleven formal amendments to the Constitution of Canada since 1982: 

• Constitution Amendment Proclamation, 1983 dealt with Aboriginal rights. This is the only amendment made since 1982 which used the general amending formula under s.38.
• Constitution Act, 1985 (Representation) permitted future changes to the distribution of seats for Parliament to be done by ordinary statute. This amendment was made by ordinary statute under Parliament's unilateral amending powers in s.44
• Constitution Amendment, 1987 (Newfoundland Act) extended education rights to the Pentecostal Church. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Constitution Amendment Proclamation, 1993 (New Brunswick Act) made English and French both official languages in New Brunswick. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Constitution Amendment Proclamation, 1993 (Prince Edward Island) cleared the way for the "fixed link" bridge to replace ferry services to PEI. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Constitution Amendment Proclamation, 1997 (Newfoundland Act) allowed the Province of Newfoundland to create a secular school system to replace the church-based education system. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned. This amendment is the only one made since 1982, in which the Senate's approval was not given within 6 months; the measure by-passed the Senate after being re-affirmed by the House of Commons.
• Constitution Amendment, 1997 (Québec) permitted the province to replace the denominational school boards with ones organized on linguistic lines. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Constitution Amendment, 1998 (Newfoundland) allowed the province to abolish the denominational school system. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Constitution Act, 1999 (Nunavut) provides for representation in the House of Commons and the Senate for the Nunavut Territory. This amendment was made by ordinary statute under Parliament's unilateral amending powers in s.44
• Constitution Amendment 2001 (Newfoundland and Labrador) officially changed the name of the Province of Newfoundland to the Province of Newfoundland and Labrador. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Fair Representation Act, 2011 This Act amended s.51(1) of the Constitution Act, 1867 to update the provisions relating to the periodic redistribution of setas in the House of Commons. This amendment was made by ordinary statute under Parliament's unilateral amending powers in s.44.

Jan 26 & Feb 2: FEDERALISM

• Marland & Wesley, ch.3

Lecture Notes:

Canadian governmental authority divided principally between the federal government and the ten provinces.  Other types of government exist but are created by ordinary legislation and not the Constitution: 
• the Territories
• Yukon
• Northwest Territories
• Nunavut (came into being April 1, 1999)
• municipalities
• aboriginal governments
the Constitution Act, 1867 provides a fundamental division of all legislative jurisdiction between the federal and provincial governments.  The original division of powers intended for most of the important areas of public policy to be assigned to the federal government, and mostly local and private matters assigned to the provinces. Canada originally had very centralized system of federalism, but has changed other the years because of: judicial decisions, changes in constitutional conventions, political practice (including federal spending power). Areas of concurrent jurisdiction: agriculture, immigration, and pensions.  Provincial law paramount for pensions, in all others it is federal paramountcy in event of conflicts between federal and provincial laws. 

Until the mid-20th century, Canada was described by some commentators as "quasi-federal," because of the subordination in the Constitution of provincial legislatures to federal government actors.

• federal cabinet has power of 'disallowance' - can veto a provincial law up to a year after it was enacted by the provincial legislature
• Lieutenant Governor can be bound to act on instructions from Ottawa to exercise power of 'reservation' - reserve assent pending approval of the bill by federal cabinet - or can reserve a bill on own initiative. 
• Lt Governor can also veto a bill by refusing royal assent - which is the final stage for a bill to be approved and become an Act (also known as a statute).

Canadian federalism has changed dramatically over the years, for several reasons:

• changes in political perception and practice: provincial rights movement, constitutional conventions grew to nullify reservation and disallowance
• changing importance of matters originally assigned to provinces: education and health care
• key judicial rulings on:
• position of Lt. Governors
• property & civil rights power
• trade & commerce power
• treaty-making and implementation
• Peace, Order & Good Government Clause (POGG) contained in the preamble to s.91 of the Constitution Act, 1867.
• Gap Doctrine
• National Concerns/Dimensions Doctrine
• Emergency Doctrine

fiscal federalism is a term to describe the practical federal framework that has arisen because of the financial arrangements between the national and provincial governments

• federal spending power - attaching conditions on grants to provincial governments in order to set standards in areas of public policy that are formally within provincial jurisdiction. The most important area of public policy where this applies to day is health care, where the federal government has set five principles the provinces must meet: universality, comprehensiveness, accessibility, portability, public administration.
• transfer payments of money from the federal government to the provinces are very important, especially to the poorer provinces; PEI's cash transfer from the federal government make up over 40% of total revenues for the provincial government. There are a number of transfer programs, but the most important are:
• equalization
payments were set up in their modern form in 1957. Equalization is mentioned in in s.36(2) of the Constitution Act, 1982:

"Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation."

 

• Because the provincial economies differ drastically, the federal government gives "equalization payments" to bring the revenue raising capacity of the poorer provinces class to a national average. There is now a cap, so that no province that receives equalization payments can see their resulting fiscal capacity raise above that of a non-receiving province.
• The levels used to be derived from a basket of 33 potential revenue sources calculated for 5 provinces: Quebec, Ontario, Manitoba, Saskatchewan and British Columbia.  But this formula was changed with the 2007 budget.
• The base level is now calculated from all ten provinces. Fiscal capacity is based on personal and business income taxes, consumption taxes, property taxes, and resource revenues.
• A serious political issue has been whether to include royalty payments from oil & gas developments. With the 2007 budget, the federal government decided to include 50% of resource revenues in each province
• Another problem is how to handle decreasing payments to provinces that begin to enjoy economic expansion. Nova Scotia and Newfoundland & Labrador signed separate agreements to provide protection to their equalization payments that would otherwise be reduced dollar for dollar for the monies they receive as a result of offshore oil development. The agreements provide for a phasing out of this protection over a period of 10 and 12 years respectively.
   
• program funding - Canadian Social Transfer provides funds to provincial government for social assistance, child care and post-secondary education. The Canadian Health Transfer supports provincial public health expenditures. The CST and the CHT were paid out to the provinces in both cash and tax transfers. Starting in 2014-5, payments are on an equal per capita cash basis. The provinces and territories are budgeted to receive a total of $44.7 billion in CHT and CST payments in 2014-5.
• These program transfers used to also be subject to 'associated equalization' that adjusted the cash payments to provinces to account for the relative differences in value of the tax transfers.
  

As a result of equalization and various specific program agreements, the total amount of transfers per capita varies from one province to another quite significantly.

The provinces and the federal government paint very different pictures about the extent of federal government funding to the provinces.  For example the federal government data shows over $6.7 Billion transferred to the BC government in 2004/5.  While the BC 2004 budget claimed it would only receive only $4.3 Billion.  The two figures equal 22.0% and 14.1% respectively of the total BC government revenues. The difference lies in fact that BC only counted straight cash transfers, while the federal government includes taxation room transferred to the province. By 2012 both government were using similar accounting approaches. According the BC estimates for 2014/15, Federal transfers should total about $7.4 billion in cash transfers, or about 16.5% of all revenues for the BC government.

Several provincial governments have complained about the "fiscal imbalance" between the federal and provincial levels of government. However, the nature of this imbalance is complicated by the decisions several provincial governments took in the past ten years to reduce taxes, while not reducing expenditures proportionately.

The three territories have their own funding formula through which the federal government subsidizes the costs of the territories public spending. Enormous web of federal-provincial intergovernmental relations includes annual first ministers' meetings, premiers-only meetings, federal-provincial ministerial meetings,  and countless meetings of federal and provincial officials dealing with specific policy areas.  The result is an effort to coordinate and even harmonize laws and policies; for example, although there are 10 provincial and 3 territorial sets of laws on highways and drivers' licenses, these laws are very similar across the country. 

Intergovernmental relations. The various levels of government maintain regular meetings for consultation and coordination. The prime minister of Canada now meets every year with the premiers of the provincial and territorial governments. A record of the various first ministers' meetings held between 1906 and 2004 is available in a (large) pdf file. This "federal-provincial diplomacy" extends to ministers and civil servants as well, with literally thousands of meetings each year on specific policy topics. 

The 2003 First Ministers' Accord on Health Care set a number of objectives for improving health care delivery in Canada, and created the Health Council of Canada to monitor the implementation of the Health Accord.

Many restrictions to trade among the Canadian provinces have emerged over the years, but some effort to ease trade was made in the mid-1990s. The result was the Agreement on Internal Trade negotiated in 1994. One major weakness of this agreement, however, is the lack of effective enforcement measures. 

In addition to federal-provincial meetings, there are many inter-provincial meetings held without federal officials. The premiers meet at least once a year, and these relationships are being increasingly institutionalized with the creation of the Council of the Federation.

A number of bilateral agreements have been signed between individual provinces over the years, the most recent (and quite controversial is the  Trade, Investment and Labour Mobility Agreement (TILMA) signed between BC & Alberta in 2006. This agreement has since been largely superseded by the New West Partnership Trade Agreement, signed by BC, Alberta and Saskatchewan in 2009; parts of this agreement came into effect in 2010, and the rest on July 1, 2013.

Feb 9: THE CHARTER OF RIGHTS

• Marland & Wesley, pp.68-76

Key words & concepts:

• parliamentary sovereignty
• limited government
• civil liberties & civil rights
• legislative bill of rights
• the 1960 Canadian Bill of Rights
• provincial human rights acts
• entrenched rights - The Canadian Charter of Rights & Freedoms
• S.1 - the clause that guarantees and limits rights
• Substantive rights:
• Section 2 - Fundamental Rights
• Sections 3 to 5 - Democratic Rights
• Section 6 - Mobility Rights
• Sections 7 to 14 - Legal Rights
• Section 15 - Equality Rights
• Sections 16 to 23 - Language Rights
• Section 24 - Remedies
• Section 32 - Application of the Charter
• Section 33 - the Notwithstanding Clause
• most recent use of s.33 was by the Alberta Legislature in 2000, to exclude same sex couples from coverage in the provincial Marriage Act.
• an instance in which it was advocated but not used advocated came in a  Reform Party motion to use s.33 to protect laws banning child pornography; see also this IPS story on the issue

• See Strategic Counsel 2007 poll on Canadian attitudes to the Charter
• judicial discretion in Charter cases involves deciding:
• scope & content of the right
• whether there is an infringement of that right
• in the case of a law, whether the infringement is justifiable under s.1
• using the Oakes Test
• what remedy, if any, should be given
• question of institutional capacity of judicial process for policy making
• judicial sovereignty vs. constitutional sovereignty

Feb 16: NO CLASSES – Mid-Term Break!

Feb 23: .......... MID-TERM TEST ..............

Mar 2: THE EXECUTIVE I - The Crown and the Cabinet

• Constitution Act, 1867
• 1947 Letters Patent for Governor General

• Personal Prerogative Powers of the Governor General and Lieutenant Governors:
• "the right to be consulted, the right to encourage, the right to warn" (from Walter Bagehot, The English Constitution, 1867)
• appointment of first minister (prime minister or premier)
• right to dissolve or summon the legislature
• refusing advice
• Two important examples of controversy over use (or non-use) or the prerorgative powers:
• 1926 - Governor General Lord Byng refused the advise of Prime MInsiter Mackenzie King to dissolve Parliament to allow a general election, because a vote of confidence was about to be held
• 2008 - Governor General Michaëlle Jean agreed to Prime Minister Harper's adivce to prorogue Parliament to avoid defeat on a vote of confidence.
  

The Governor General and Lieutenant Governors are 'advised' in the exercise of their powers by their councils of ministers: the Privy Council is the federal body, and at the provincial level it is known as the Executive Council. In almost all cases, however, the governors are obliged to treat the 'advice' of their ministers as instructions. Only when exercising their personal prerogative powers do the governors make the decisions themselves.

The political executive: first minister chosen by GG or LG, other ministers chosen by first minister

Constitutional conventions govern the formation of cabinets, especially relating to the requirement that ministers must be, or must become, members of the leigslature, and regional & sectoral represention.

Note the difference between majority & minority governments, as well as the distinction between single-party & coalition governments. Canadian political culture has traditionally supported single-party governments rather than coalitions.

Cabinet ministers are advised by both their own department or agency, through the top civil servant (deputy minister), and also by their own political advisors ('exempt staff').

Central agencies are those government bodies who are in a position to coordinate or direct the work of other departments & agencies - 'horizontal control':

• Prime Minister's Office (PMO)
• Privy Council Office (PCO)
• Finance Department
• Treasury Board
• Public Service Commission (not mentioned by Dyck)

Marland & Wesley, ch.7

powers of adminstrative tribunals are limited, to protect some core powers of superior courts

Provinces create lowest level of trial courts and appoint those judges under s.92(14) of Constitution Act, 1982

Provinces create superior trial courts and a provincial appeal court, but judges are appointed by the federal government under s.96

The federal government creates federal superior courts to deal with all federal laws except criminal code, including an appeal court under s.101

The federal government creates and appoints members of miltary courts martial

The federal government creates and appoints members of the Supreme Court of Canada under s.101

judicial review

• review of actions by government officials to ensure they act according to law
• review of laws passed to ensure they are constitutional
  • federal-provincial division of powers
  • constitutionally defined limits, such as Charter of Rights
    

judicial impartiality - a state of mind in which the judge maintains an open mind towards the parties and issues involved in a case

judicial independence

  - an institutional relationship between the judiciary, on the one hand, and the legislature and executive, on the other, that allows the judges to act impartially

• three elements of judicial independence were described by the Supreme Court of Canada in Valente v The Queen:
  • security of tenure
  • financial independence
    • see also the Supreme Court decision on how judicial salaries should be determined, in the 1997 Provincial Judges Reference which held that the government cannot negotiate directly with judges over their salary but must appoint an independent commission to make salary recommendations, and the 2005 Provincial Court Judges Association case, which held that the government may justify any variations from the judicial salaries commission but only my meeting directly the points raised by the commission.
  • administrative independence
• there are also other important elements of judicial independence beyond those mentioned by the Supreme Court:
  • freedom from informal pressure from politicians & public
  • limited speech & political activity for judges
    • A controversial issue is whether judges should be able to criticize other judges. Judge John McClung has caused controversy by publicly  rebuking Justice Claire L'Heureux Dubé of the Supreme Court of Canada for things she said in overturning a decision he wrote for the Alberta Court of Appeal

merit, patronage & public hearings

Most provinces have eliminated or greatly reduced patronage thorugh the use of independent judicial nomination bodies

Patronage has persisted as a central problem in federal judicial appointments in general, but less of an issue in appointments to the Supreme Court of Canada

Supreme Court of Canada appointment process has changed in 21st century, to include a public interview of Prime Minister's choice by a committee of MPs.

• In 2014, the Supreme Court of Canada ruled that Stephen Harper's appointment of Marc Nadon to the SCC was null & void, because he was a judge of the Federal Court of Appeal and neither a member of a Quebec superior court or of the Quebec bar.
  

Should SCC appointments be explicitly ideological, as in the US? Pros & cons of ultimate control by elected politicians

• should the government be able to change the general direction of the courts by deliberately selecting new judges who have a particular ideological mindset?

On what grounds should a judge be removed from office?  Who sets these standards?  What process should be followed?

Federally appointed judges can be removed from office by the Governor General after a joint address by both the House of Commons and the Senate. But first complaints must be heard by the Canadian Judicial Council, composed of senior judges, who investigate and recommend whether a judge should be removed.

• An example of a judge would have been removed if he didn't resign is Justice Robert Flahiff of the Quebec Superior Court who was sentenced in 1999 to three years in jail for money laundering

Apr 6: MUNICIPAL GOVERNMENT

TBA

Lecture Notes:

Compare the populations and budgets of Canadian provinces and slect municipalities.