Enforcement of the Charter
As the government of Canada notes, this shows the Charter does not disturb the balance of the distribution of legislative powers under the Constitution Act, 1867. [1] Constitutional scholar Peter Hogg has called section 31 a "cautionary provision." He specifically notes that section 31 denies the federal Parliament of Canada any additional powers. Indeed, section 31 is a departure from the educational rights in the Constitution Act, 1867. Section 93(4) of that Act gives the federal Parliament the power to intervene if a provincial government fails to respect certain rights. The federal government could then pass and enforce laws that would uphold the rights. [2]
The Government of Canada, officially Her Majesty's Government, is the federal administration of Canada. In Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council. In both senses, the current construct was established at Confederation through the Constitution Act, 1867—as a federal constitutional monarchy, wherein the Canadian Crown acts as the core, or "the most basic building block", of its Westminster-style parliamentary democracy. The Crown is thus the foundation of the executive, legislative, and judicial branches of the Canadian government. Further elements of governance are outlined in the rest of the Canadian Constitution, which includes written statutes, court rulings, and unwritten conventions developed over centuries.
Canadian federalism involves the current nature and historical development of federal systems in Canada.
The Constitution Act, 1867 is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. The British North America Acts, including this Act, were renamed in 1982 with the patriation of the Constitution ; however, it is still known by its original name in United Kingdom records. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.
The adoption of section 31 was probably meant to avoid an unfavourable reaction against the Charter from the provinces. The provinces had opposed the Charter because of the potential limits on their powers, but the opposition would have been stronger had Parliament been able to exert its authority over the provinces. [3]
As Hogg notes, section 31 also distinguishes the Charter from various rights in the amendments to the United States Constitution. In the United States, the federal Congress has the authority to enforce various rights, including those in the Thirteenth Amendment, which prohibits slavery, the Fourteenth Amendment, which binds the states to respect due process, and the Fifteenth Amendment, which contains a partial right to vote. [2]
The United States of America (USA), commonly known as the United States or America, is a country composed of 50 states, a federal district, five major self-governing territories, and various possessions. At 3.8 million square miles, the United States is the world's third or fourth largest country by total area and is slightly smaller than the entire continent of Europe's 3.9 million square miles. With a population of over 327 million people, the U.S. is the third most populous country. The capital is Washington, D.C., and the largest city by population is New York City. Forty-eight states and the capital's federal district are contiguous in North America between Canada and Mexico. The State of Alaska is in the northwest corner of North America, bordered by Canada to the east and across the Bering Strait from Russia to the west. The State of Hawaii is an archipelago in the mid-Pacific Ocean. The U.S. territories are scattered about the Pacific Ocean and the Caribbean Sea, stretching across nine official time zones. The extremely diverse geography, climate, and wildlife of the United States make it one of the world's 17 megadiverse countries.
The Thirteenth Amendment to the United States Constitution abolished slavery and involuntary servitude, except as punishment for a crime. In Congress, it was passed by the Senate on April 8, 1864, and by the House on January 31, 1865. The amendment was ratified by the required number of states on December 6, 1865. On December 18, 1865, Secretary of State William H. Seward proclaimed its adoption. It was the first of the three Reconstruction Amendments adopted following the American Civil War.
Slavery is any system in which principles of property law are applied to people, allowing individuals to own, buy and sell other individuals, as a de jure form of property. A slave is unable to withdraw unilaterally from such an arrangement and works without remuneration. Many scholars now use the term chattel slavery to refer to this specific sense of legalised, de jure slavery. In a broader sense, however, the word slavery may also refer to any situation in which an individual is de facto forced to work against their own will. Scholars also use the more generic terms such as unfree labour or forced labour to refer to such situations. However, and especially under slavery in broader senses of the word, slaves may have some rights and protections according to laws or customs.
While section 31 denies remedial powers in respect of the Charter for Parliament and the legislatures, the courts receive this authority through section 24 and section 52 of the Constitution Act, 1982.
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867.. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.
Judicial interpretation
In 1984, the Alberta Court of Appeal, in making its ruling on R. v. Big M Drug Mart Ltd. , made reference to section 31. A lower court had found federal legislation compelling the observance of the Christian Sabbath to be not only a breach of section 2 of the Charter (freedom of religion), but also outside Parliament's criminal law authority under the division of powers, despite earlier findings that morality could guide the definition of criminal law. As the lower court argued, the circumstances and values of the day no longer supported the view that Christianity can guide what constitutes valid criminal law. The Court of Appeal, however, overturned the finding on the division of powers. The Court of Appeal argued that the finding that new circumstances and values limited the scope of criminal law constituted "a redistribution of legislative powers in Canada" that section 31 guards against. The Court of Appeal added that it was also the intention that the Charter would not affect the division of powers, and went on to speculate that otherwise the Charter would create an "odd" situation in which a legislative body could unilaterally change the distribution of powers by reclaiming the powers it had lost under the Charter, by invoking the notwithstanding clause.
In 2001, the Federal Court decided against claims that section 30 of the Charter should mean territories should be treated generally like provinces. The Court pointed to section 31, saying section 30 cannot increase the powers of the territorial legislature to the extent that a territory can achieve equality with the provinces. [5]
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Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause, or as the override power, and it allows Parliament or provincial legislatures to temporarily override certain portions of the Charter.
The Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada. Invoked more often before the Canadian Charter of Rights and Freedoms was enacted, it is nonetheless important when questions of parliamentary supremacy and the override power come into play.
The Canadian legal system has its foundation in the English common law system, inherited from being a former colony of the United Kingdom and later a Commonwealth Realm member of the Commonwealth of Nations. The legal system is bi-jurisdictional, as the responsibilities of public and private law are separated and exercised exclusively by Parliament and the provinces respectively. Quebec, however, still retains a civil system for issues of private law.
The Victoria Charter was a set of proposed amendments to the Constitution of Canada in 1971. This document represented a failed attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add rights and freedoms to it and entrench English and French as Canada's official languages; he later succeeded in all these objectives in 1982 with the enactment of the Canada Act 1982.
Patriation was the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. That Act was necessary because under the Statute of Westminster 1931, with Canada's agreement at the time, the British parliament had retained the power to amend Canada's Constitution Acts, and to enact more generally for Canada at the request and with the consent of the Dominion. That authority was removed from the UK by the passing of the Canada Act 1982 on March 29, 1982, by the Parliament of the United Kingdom, as requested by the Parliament of Canada.
Amendments to the Constitution of Canada are changes to the Constitution of Canada.
Section 30 of the Canadian Charter of Rights and Freedoms is a section that, like other provisions within the section 25 to section 31 block, provides a guide as to how Charter rights should be interpreted and applied by Canadian courts. Section 30's particular role is to address how the Charter applies in the territories of Canada. In 1982, when section 30 first became law, these were the Northwest Territories and the Yukon Territory. The Yukon Territory has since been renamed Yukon, and Nunavut was created from the eastern Northwest Territories to become Canada's third territory. Section 30 and by extension, the Charter applies to Nunavut.
Section 5 of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada, and the last of three democratic rights in the Charter. Its role is to establish a rule regarding how frequently the Parliament of Canada and the legislatures of the provinces and territories of Canada must meet. This section is thus meant to reflect and constitutionally guarantee a "basic democratic principle" that "a government must explain its actions to the people."
Section 27 of the Canadian Charter of Rights and Freedoms is a section of the Charter that, as part of a range of provisions within the section 25 to section 31 bloc, helps determine how rights in other sections of the Charter should be interpreted and applied by the courts. It is believed that section 27 "officially recognized" a Canadian value, namely multiculturalism.
Section 22 of the Canadian Charter of Rights and Freedoms is one of several sections of the Charter relating to the official languages of Canada. The official languages, under section 16, are English and French. Section 22 is specifically concerned with political rights relating to languages besides English and French.
The preamble to the Canadian Charter of Rights and Freedoms is the introductory sentence to the Constitution of Canada's Charter of Rights and Constitution Act, 1982. In full, it reads,
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law
Reference Re Resolution to amend the Constitution – also known as the Patriation Reference – is a historic Supreme Court of Canada reference case that occurred during negotiations for the patriation of the Constitution of Canada.
Section 21 of the Canadian Charter of Rights and Freedoms is one of several sections of the Charter relating to the official languages of Canada. The official languages, under section 16 of the Charter, are English and French. Sections 16 to 20 guarantee a number of rights in regard to the use of these languages in the federal and New Brunswick courts and other government institutions. Thus, section 21 clarifies that language rights regarding English and French in the Constitution of Canada, outside the Charter, remain valid and are not limited by the language rights within the Charter.
Section 4 of the Canadian Charter of Rights and Freedoms is one of three democratic rights sections in the Charter. Section 4 guarantees that federal and provincial elections must take place from time to time. Subsection 4(1) provides that the maximum term of the House of Commons, and of all the provincial legislative assemblies, is five years. Under subsection 4(2), an exception is made if war or rebellion causes two-thirds of the membership to believe a House of Commons or legislature should last longer.
The Constitution of Alberta describes the fundamental rules under which the Canadian province of Alberta is governed. As is typical of all Canadian provinces, and Westminster systems more generally, Alberta's is an unwritten constitution. Alberta's constitution, like the UK's, includes any and all pieces of legislation, court decisions, proclamations, and conventions which together inform how the province operates. Many statutes are important to understanding the governance of the province, but nowhere are they consolidated into a single document or even a list. The office of Attorney-General at one time suggested 23 acts which might be included, but cautioned that this was not a "definitive list". However, since Alberta is a part of federation, its powers are clearly delineated in law, via the Constitution of Canada.
