.png){kind=icon}
The Constitution
Click on each question to check your answer.
Short Answer Questions
1. What are the three forms that a constitution, as a set of rules, can take? Identify and explain each.
Written documents, such as the Constitution Act, 1982; decisions of the courts, called the common law; and unwritten conventions, which are practices and norms of behaviour, not legally binding or enforceable by the courts but considered by actors as expected behaviour.
2. How does a constitution deal with the power of the state?
A constitution authorizes state action and in that sense a constitution provides the basis for the legitimate exercise of state power. On the other hand, a constitution limits and divides power. For instance, it usually provides for a bill of rights, which limits the power of government. It will also provide for a separation of powers among legislative, executive, and judicial branches.
3. How does a constitution provide for and constrain rights and freedoms in Canada?
Canada’s Constitution is unique in that it guarantees certain protections for citizens by and from the state along with protecting not only individual but group citizen rights in the country.
4. How has the precise meaning of the principle of democracy evolved over time?
When the 1867 constitutional document was drafted, it was taken for granted that Canada would be democratic. Since that time, ideas about democracy have changed. Women, for instance, gained the right to vote many decades ago. The Senate is about to undergo some democratic change. Further, the Supreme Court has commented on the meaning of democracy. One is that majority rule is a basic premise of democracy. Another is that our federal structure alters the notion of majority rule somewhat. It also stated that the consent of the governed is a value that is basic to our understanding of a free and democratic society. So, not only is the country more democratic, the justices have attempted to flesh out what is involved in Canada’s constitutional democracy.
5. What is meant by political freedoms, democratic rights, mobility rights, legal rights, equality rights, and language rights in the Canadian Charter of Rights and Freedoms?
The Canadian Charter of Rights and Freedoms explicitly protects political freedoms, democratic rights, mobility rights, legal rights, equality rights and language rights. Some of these were not included in Canadian constitutional law before 1982. The Supreme Court of Canada increasingly uses the Charter in its adjudication of appeals that it hears particularly those concerning rights and freedoms.
6. How are Indigenous rights included in the Canadian Constitution?
The Canadian Constitution explicitly recognizes Indigenous rights through Section 25 of the Charter of Rights and Freedoms. The Charter entrenches rights first described in the Royal Proclamation of 1763 and interestingly includes not only those rights previously recognized prior to the Proclamation, those that have been recognized through case law and convention post-1763 and those that may be recognized in the future.
7. What is the structure of the Canadian Parliament?
Canada’s Parliament consists of the Executive and Legislative branches. The Executive branch includes the Monarch represented by the Governor General, along with the Prime Minister and Executive. The Legislative branch involves the House of Commons and Senate.
8. How does the separation of powers reflect an Americanizing trend in Canadian politics?
The separation of powers is a basic principle of the US constitution. It calls upon each branch of government to serve as a check and balance on the others. It is only indirectly applicable in Canada. However, s. 24 of the Charter, which declares that the enforcement of the Charter shall be through the courts, is suggestive of the American application in that it is a firm declaration that the courts represent a check on the powers of Parliament and the provincial legislatures.
9. What is Philip Resnick’s argument regarding Canada’s deferential political culture?
In the parliamentary system, parliament was not only the people. It also included the crown. According to Resnick, parliamentary sovereignty fosters attitudes in the population which were nominally participatory but maximally deferential towards those exercising authority. The mystique of British crown and constitution helped to make illegitimate all forms of political activity not sanctioned or channelled through parliamentary institutions. According to Resnick, if Canadians are more deferential than Americans, it is because the attitude of deference was generated to some degree by parliamentary institutions that discouraged popular participation beyond voting.
10. What were the key answers that the Supreme Court of Canada provided in its 1998 Secession decision?
The reference essentially asked three key questions as to whether Quebec could secede from Canada: (1) Under the Constitution of Canada, can the National Assembly or government of Quebec effect the secession of Quebec from Canada unilaterally? (2) Does international law give the National Assembly or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In other words, is there a right to self-determination in international law that applies to Quebec? (3) If there is a conflict between international law and the Canadian Constitution on the secession of Quebec, which takes precedence?
11. Brainstorm some of the key differences before and after the patriation of the Canadian Constitution and entrenchment of the Charter of Rights and Freedoms in 1982.
Before 1982, the relationship between individuals and the state were defined by the courts in terms of federal and provincial legislative powers, and the Constitution Act, 1867 could only be amended by request to the British government. Some rights were part of the 1867 Constitution, while others were included in the Criminal Code or elsewhere. After 1982, the Canadian Constitution was repatriated and many of the rights previously included elsewhere were entrenched in the Charter of Rights and Freedoms.
12. What are constitutional conventions? List some examples. How is the enforcement of these conventions limited?
Constitutional conventions are rules that are not written down in the constitution, but are generally accepted over time. According to a 1981 Supreme Court ruling, they are intended to ensure that the legal frameworks of the constitution operate in accordance with constitutional values and principles of the time period. One example of a constitutional convention is that the party that wins the most seats in the House of Commons forms government. It is important to consider that constitutional conventions do not have the status of constitutional law and are not enforceable by the courts.
13. Describe the difference between positive and negative rights. Provide examples of both.
A positive right is the right to something (ie. a good or service); Brooks notes that English and French as the official languages of Canada is a positive right. A negative right is a right from something, which requires others to abstain from interfering, for example, freedom of speech or religion.
14. Describe the role of the Queen in Canadian government.
Queen Elizabeth II is the Head of State of Canada, with the power to form and dissolve government, give royal assent on legislature, etc. However, these powers are largely symbolic and it is a predominantly ceremonial role. When the Queen is not present in Canada, she is represented by the Governor-General at the federal level and Lieutenant-Governors in the provinces.
15. What is the relationship between the judiciary and the Canadian Constitution?
The judiciary has the “special role” to interpret what the law and constitution mean when there are disputes between the two. Section 24 of the Constitution Act, 1982 indicates that all enforcement of the Charter must take place through the courts.
Essay Questions
1. What are the major issues and debates concerning the constitution in the United States? What are the similarities and differences with the issues and debates surrounding the Canadian constitution learned in this chapter?
To answer this question, you can focus on three issues in particular: the judicial appointment process in both countries; the ideological splits among justices in both countries; and the issue of whether justices should take a strict constructionist approach to constitutional interpretation (that is, take a narrow reading of the constitution). In both countries, the executive appoints Supreme Court justices but in the US, a Senate committee has the power to approve or reject a candidate. In Canada, parliamentary committees have not had this power. In the US, justices often become associated with the liberal or conservative wings of the ideological spectrum. This is not so much the case in Canada. In Canada, there is not such a demand that justices interpret the constitution narrowly.
2. Explain the constitutional negotiations in Canada that took place surrounding the Meech Lake and Charlottetown Accords.
A good approach to answering this question would be first to identify the deficiencies in the Constitution Act, 1982 including the ignorance of Aboriginal rights and clarification of the equity provisions between men and women, etc. The next step would be to discuss the negotiations and components of the Meech Lake Accord followed by a similar examination of the negotiations and components of the Charlottetown Accord. Your answer could conclude with an examination of the history surrounding the demise of the both accords.
3. Discuss the issue of self-determination. What does international law have to say about the right of self-determination? Does international law matter if a majority of Quebecers voted to secede from Canada?
Begin by arriving at a thorough and precise definition of the right of self-determination. Does it differ from self-government? If so, how? Check the Supreme Court decision in the Secession reference. Consult the document that came out of the 1993 Vienna World Conference on Human Rights. You should also check the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Declaration on the Rights of Indigenous Peoples. In order to answer the question, issues to be raised here include the likely views of Quebecers themselves on the international law issue; the reaction of the rest of Canada, particularly the Aboriginal peoples within Quebec; the reactions of the US and other countries and international organizations; the reaction of business interests; and the likely impact on negotiations between Canada and Quebec. Students can also speculate on the reaction of the rest of Canada over time. The most important part of the answer is your discussion of the right of self-determination.
4. What was the SNC-Lavalin Affair? What infringement did Jody Wilson-Raybould say the government committed in its response to the affair? Do you agree with Wilson-Raybould’s assessment of the situation?
SNC-Lavalin is a Montreal-based engineering firm that, in 2015, was charged with fraud and corruption for bribing Libyan officials to get contracts in that country. In 2019, Jody Wilson-Raybould testified that, in her previous role as Attorney-General, she was pressured by the PMO and PCO to agree to a deferred prosecution agreement (DPA, meaning fine and other punishment instead of criminal prosecution) with SNC-Lavalin. Wilson-Raybould argued that this was a violation of the rule of law, that the Attorney-General should maintain independence, much like the judiciary, and the government should not interfere. Wilson-Raybould was later expelled from the Liberal Caucus alongside MP and Cabinet Minister Jane Philpott, who expressed solidarity with Wilson-Raybould. Wilson-Raybould and Philpott similarly said this was unlawful and a violation of the rule of law. While Wilson-Raybould was re-elected as an independent MP in the 2019 federal election, Philpott, who also stood as an independent candidate, was not re-elected. Answers will vary based on whether you believe that these instances were violations of the rule of law. Your answer should be supported with evidence from the textbook and/or your prior knowledge on the subject.
5. What is party discipline? Compare the competing claims for and against it. Which is more compelling to you?
Party discipline is the idea that MPs generally vote as a bloc with their party. There have been both proponents and critics of this concept in Canada. Critics argue that it is undemocratic and that MPs should act, first and foremost, in the interest of their constituents rather than their political party. Furthermore, a number of polls mentioned by Brooks assert that over the last several decades, Canadians have overwhelmingly disagreed with the notion of party discipline. Conversely, Senator Eugene Forsey argued that party discipline holds decision-makers accountable, much more so than the US where party discipline is traditionally weak. Other proponents also say that it would lead to the end of majority governments and the weakening of party leaders and, thus, should remain in place. Your answer will vary based on which argument you think is most compelling; support your answer with evidence and examples.