Components of the Constitution

1. The Canadian Constitution – Part 2 Components of the Constitution

2. 1. Jurisdictional Powers (Division of Powers) • Two sections of the BNA act listed the powers of the central government and the provinces. • Section 91 - listed the powers of the central or federal government. • Section 92 and 93 - listed the powers of the provinces. • Each level of government has supreme authority in the area of law over which it has jurisdiction – they are exclusive of one another.

3. Section 91 • The powers of the federal government included National Defense Fisheries Currency Postal System National Issues

4. Section 92 and 93 • This section listed the powers of the provinces including Hospitals Justice Public Lands Education (Sect. 93) Municipal Institutions

5. Residual Powers • The strength of the federal union was indicated in section 91 which gave all left over power, or any item not specifically granted to any level of government, to the federal government. • This covered all matters concerning “… the Peace, Order and Good Government of Canada.” Residual Power

6. The Struggle for Power • Since 1867 the provinces have struggled to take power away from the central government. • This struggle continues today and is often a source of considerable friction between the two levels of government.

7. Intra Viresand Ultra Vires • Sometimes there is disagreement over an area of law that is claimed by both levels of government as their jurisdiction. • When this happens, it is up to the courts to decide which legislature has jurisdiction. • If a legislature is acting within its jurisdiction, the legislature has acted intra viresits authority. • If a legislature is acting outside its jurisdiction, then it has acted ultra viresits authority.

8. Pith and Substance • Most issues dealing with the question of legislative authority fall under both sections 91 and 92. • To determine which level of government has authority in these situations, the courts use the PITH AND SUBSTANCE doctrine. • This doctrine requires the court to look at the overriding purpose or intent of the law in question. • They must determine what the most dominant or important characteristic of the law in question is.

9. The Pith and Substance Doctrine at Work:Reference re Firearms Act (Can) [2000] 1 S.C.R. 783 • In 1995, the Federal government enacted the Firearms Act, which changed the classification of some firearms and required all owners to obtain licences and register their firearms. • The issue: Criminal law falls under the authority of the federal government, while regulating property and licensing is a power given to the provinces under section 92. • The Alberta government challenged the federal legislation in the Alberta Court of Appeal because it believed that the Federal Law (the Firearms Act) was regulating property, which is not considered criminal law. • The case was appealed to the Supreme Court, who ruled that in pith and substance, the Firearms Act was concerned with public safety, which traditionally falls under the scope of criminal law. • Even though the law did affect regulation and licensing of property, a provincial responsibility, the purpose of the Act was to address the misuse of firearms and their potential risk to public safety. • DECISION: the law was upheld.

10. 2. Parliamentary Democracy • The fundamental principles of our Constitution are upheld by federal and provincial governments that are responsible and accountable to the people; • General features: • General election every 5 years; • The party with the most seats forms the government; • The leader of the winning party becomes the Prime Minister; • The opposition is there to hold the government accountable • The Prime Minister appoints a Cabinet from elected party members; • Bills are presented by the government to Parliament • The Head of State is the British Monarch (the Queen) who is represented by the Governor-General (whose role is primarily ceremonial).

11. 3. The 3 Branches of Government • The Executive • The Prime Minister and his/her Cabinet Ministers • The Governor-General is the symbolic head; • Responsible for the day-to-day management and operation of the government.

12. Judicial Branch • An independent 3rd party to settle disputes or clarify the law; • Non-interference from 2 other branches (allows for the rule of law, which is a safeguard against the exercise of arbitrary government action) • If government officials could interfere or pressure court officials, the public would have no guarantee that the law was being applied fairly and evenly. • Once appointed, judges cannot be removed by the government.

13. Legislative Branch • Responsible for making our laws; • Only a democratically elected parliament can shape our public policy. • Consists of: • Members of Parliament (MPs) who are elected and Senators, who are appointed and not based on representation by population (providing a regional counterbalance to the dominance of the provinces with a higher population). • Problem: the Senate is UNELECTED, and has the power to veto the will of the elected House, which conflicts with the principles of democracy.

14. Legislative Supremacy • The ultimate authority to make and unmake law in Canada resides with the federal or provincial parliament under whose jurisdiction the law falls. • If citizens feel that a law is wrong, then it is there right to lobby the government to amend that law.