SEPT/11/2025

Constitutionalism and The Rule of Law

constitution definition: rules by which a country has chosen to govern itself regardless of where
they found and a particular document or set of documents that has special legal and political
significance

Constitutional law: rules governing the use of government power. This law concurs with the
government not between persons. Can be dealing with other governments or in their dealings
with persons (all of us).

It sets limits on what governments can do by appealing to a body of law known as “the
constitution”

Constitutionalism: the idea that the powers of government ought to be limited and limited by the
law. Actions of a "limited government”- as opposed to a totalitarian government-must be
evaluated against the constitution. An extent that a limited government’s actions are inconsistent
with the constitution.

Rule of law:

1.​ Rules must be prospective and not retroactive-must apply to future not past events
2.​ Rules must be capable of being complied with-cannot demand the impossible
3.​ Pules must be promulgated-have access to the law and what it says to everyone
4.​ Rules must be clear
5.​ Rules must be coherent with each other-satisfaction of one law cannot result in the
violation of another
6.​ Rules must be sufficiently stable to allow people to plan their lives- people have to
organize their lives around it so if the law changes too often/radically people will lose
confidence
7.​ The making of orders applicable to relatively limited situations must be guided by
relatively general, clear, stable rules- where law grants discretion to decision makers it
must be bounded, guided discretion
8.​ People with the authority to make or administer laws in an official capacity
-​ Must be accountable
-​ Must actually administer the laws consistently with their tenor

Roncarelli v Duplessis

-​ Roncarelli was a Jehovah's witness who is a restaurant owner

-​ Providing bail money to those Jevons witness who were charged for disturbing religious
materials on the street
 -​ Quebec AG considered the religious materials being distributed be “seditious to
Quebec's largely Roman Catholic population”
-​ He was told that his liquor license was taken away forever, after lost profit and goodwill
-​ Court was asked to consider if there was any recourse
-​ Since licenses are essential for profit so the decisions have to be made with impartiality
and integrity
-​ The decsion have to made in purpose of the statue, discretion is not absolute and it
would be beyond the discretion to revoke permits
-​ The court said it was totally irrelevant to the liquor and the case and the decision was
malicious and an abuse of legal power ( revoked by the government went to court…)

Re Manitoba Language Rights

-case addressed whether there was a requirement legislation, hansard escorts etc. to be
translated in english and french.
- it is stated that in the section 23 on the constitution act
- the court says it has to be bilingual
-and so now there like all the laws are not valid till it could be translated

September/16/2025

What does the constitution do? It provides for a separation of power and a division of power.
Separation is assigning different roles to different government institutions.

Constitutional sources:
-​ There are different ways to create a constitution
-​ Role of customs and conventions?

What can it do:

-​ Separation power
-​ Division power
-​ Establishment of civil rights
-​ Asserting the principle of nation

Confederation and beyond

-​ Emphasis placed on maintaining the identity, culture, and institutions of the
provinces/colonies
-​ The American economic and political threat
-​ Creation of a federal system with a single central government and various provincial
governments
 -​ Canada develops the british north america act 1867 (later named the constitution act
1867)
-​ Important to note that the constitution is found in several different documents not just
one

Sources- constitution act 1867

Section 5-divided Canada into four provinces

Section 17- established that parliament would be bicameral-HOC and senate
Section 55- Royal assent

Federal Authority
Section 91-authority of parliament
-​ Establishes what is the responsibility of the federal government
Q: do i need to know what the section is saying or just the general idea of what it means
-​ Federal government has

Federal government has authority over: ( do i need to know every single ones???)
-​ Regulation of trade and commerce
-​ Raising of money by and mode or system or taxation
-​ Borrowing of money on the public credit
-​ Postal service
-​ Census and statistics
-​ Millita, military, naval service, defence
-​ Navagation and shipping
-​ Seacost and inland fisheries
-​ Ferries between a province and any british or foreign country between two prinvines
-​ Currency and coinage
-​ Banking,incorporation of banks, and the issue of paper money
-​ Bankruptcy and insolvency
-​ Patents of invention and discovery
-​ Copyrights
-​ Indians and lands reserved for indians
-​ Naturalization and aliens
-​ Marriage and divorce
-​ The criminal law, not the consution of courts of criminal jursidtion
-​ The procedure in criminal matters
-​ Establishment, maintenance and management of penitentiaries

94a- authority re old age pensions and supplementary benefits

96- appointment of judges
101-establishing a general court of appeal-resulted in the creation of the supreme

Provincial authority
2. Direct taxation within the province in order to raising of a revenue of the provincial purposes
The establishment, maintenance and management of Public and reformatory prisons in and for
the province
7. The establishment, maintenance and management of hospitals asylums charities and
eleemosynary institution in and for the province , other than marine hospitals
8. Municipal Institution in the province
[Link], saloon, tavern,auctioneer and other license in oder of raising of a revenue from
provincial, local, municipal purposes
12. The solemnization of marriage in the province
13. Property and civil rights in the province
14. The administration of justice in the province, including the constitution, maintenance, and
organzation of provincial courts both of civil and of criminal jurisdiction and including procedure
in civil matters in those courts
15. The imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the
province made in relation to any matter coming within any of the classes of subjects
enuermated in this section
16. Generally all matters of a merely local or private nature in the province

92a- provincial law making authority re natural resources

93- addresses provincial responsibility for education

Constitution Act, 1982 Amendments-Part V

-made a number of important addition to the consumption canada
1.​ Established the legal formula for amending the constitution
2.​ Set out the canadian charter of rights and freedoms
3.​ Provided for vast provincial authority over natural resources
4.​ Constitutionally recognized and affirmed the rights of indigenous peoples
Recognition of existing aboriginal and treaty rights
35.1 the existing of aboriginal and treaty rights of the aboriginal peoples of canada are hereby
recognized and affirmed

Definition of aboriginals peoples of canada

2. In this act, aboriginal people of canada includes the indian inuit and metis people of canada

General procedure for amending constitution of canada

38.1. An amendment to the constitution of canada may be made by proclamation issued by the
governor general under the great seal of canada where so authorized by
a.​ Resolutions of the senate and house of commons
b.​ Resolutions of the legislative assemblies of at least two-thirds of provines that have in
the aggregate according to then latest general census at least fifty percent of the
population to the provinces
Reference re secession of quebec
-case confirmed that the constitution “ embraces unwritten as well as written rules”
-court idenitfied four fundamental and organizing principles of the constution: federalism,
democracy, constionalism and the rule of law, respect for minorities

-​ A right to initiate change imposes a duty to engage in constitutional discussions. In this

case, an expressed desire to pursue succession would give rise to obligation to
negotiate. However, it would not impose a legal obligation to accede

Amendment by unanimous consent

41. An amendment to the constitution of Canada in relation to the following matters
May be made by proclamation issued by the governor general under the great seat of canada
only where auhtorized by reloustions of the senate and house of commons and of the lgeislatve
assembly of each province
-​ The office of the queen, the governor general and the lieutant governor of a province
-​ The right of a province to a number of members in the house of commons not less than
the number of senators by which the province is entitled to be represented at the time
tihis part comes into force
-​ Subject to section 43, the use of the english or th french language
-​ The composition of the supreme court of canada
-​ An amendment to this part

Aboriginal rights
Recognition of existing aboriginal and treaty rights
35. (1) the existing aboriginal and treaty rights of the aboriginal peoples of canada are hereby
recognzied and affirmed
(s) in this act “abiroginal peoples of canada” includes the indian, inuit and metis peoples of
canada

Constitution Act, 1982- Amendments-Part V

General procedure for amending constitution of canada

38.(1) an amendment to the constitution of canada may be made by proclamation issued by the
governor general under the great seal of canada where so authorized by
-​ Resolutions of the senate and house of commons
-​ Resolutions of the legislative assemblies of at least two thirds of the provinces that have,
in the aggregate, according to the then latest general census, at least fifty per cent of
the population of all the provinces

Amendment by unanimous consent

41. An amdendmet to the constitution of canada in relation to the following matters may be
made by proclamation issued by the governor general under the great seal of canada only
where aithroized by resolutions of the senate and house of commons and of the legislative
assembly of each province
 -​ The office of the queen the governor general nd the lieutenant governor of a province
-​ The right of a province to a number of members in the house of commons not less than
the number of senators by which the province is entitled to represented at the time this
part comes into force
-​ Subject to section 43, the use of the english or french
-​ The composition of the supreme court of canada
-​ An amednment to this part

Primacy of constitution of canada

52. The constitution of canada is the supreme law of canada and any law that is inconsistent
with the provisions of the constitution is tot he extent of the inconsistency of no force or effect
Constitution of canada

Unwritten constitutional principles

Reference re Secession of Quebec

-​ Case confirmed that the constitution “embraces unwritten as well as written rules”
-​ -court identified four fundamental and organizing principles of the consumption:
federalism, democracy, constitutionalism, and the rule of law, respect of minorities

What impact do these unwritten principles have

What is the relationship between democracy and federalism
What is the relationship between democracy and the rule of law

A right to initiate constitutional change imposes a duty to engage in constitutional discussions.

In this case, an expressed desire to pursue secession would give rise to an obligation to
negotiate However, it would not impose a legal obligation to accede
Sept/18/2025

FEDERALISM

Division of powers

Section 91 & 92
-​ Debates over centralized or decentralized federation in the lead up to confederation
-​ Important component of canada’s constitution is the division of powers between
parliament and the provinces. These powers are found in sections 91 and 92 of the
constitution act

Section 92
-​ Provincial authority
7. Establishment, maintenance, management of hospitals
[Link] and civil rights in the province
[Link] all matters of a merely local or private nature in province

Section 91
-​ Federal authority
Residual power- peace, order, good government (with limits)
2. The regulation of trade and commerce
3. Raising of money by any mode or system of taxation
15. Banking, incorporation of banks, issue of paper money
27. Criminal law, expect the constitution of courts of criminal jurisdiction, but including the
procedure in criminal matters

Role of the judiciary in federalism disputes

Judicial review
-​ Section 52(1) of the constitution act, 1982
-​ Judiciary assess laws for consistency with the constitution
-​ Judiciary serves as interprets as well

R v. Moregentaler
1993 3 SCR 463

Issue: whether the ns medical services act and its regulation was ultra vires the province of
nova scotia, due to the pith and substance of the law being criminal law
-​ The legislation made it illegal to perform abortions outside of the hospital

Provincial grounds argued (92)

7. Establishment, maintenance, and management of hospitals
13. Property and civil rights in the province
[Link] all matters of a merely local or private nature in the province

Federal grounds argued:

27. The criminal law, expect the constitution of courts of criminal jurisdiction, but including the
procedure in criminal matters

Decision: laws were criminal law in pith and substance and therefore unconstitutional-beyond
the powers of nova scotia. Court said the law’s central purpose and dominant characteristic was
to restrict abortions

Two step analysis

1.​ Identify the matter of the law
2.​ Assign the law to either 91 or 92

-​ In order to do this, we look at both the purpose of the law and its effects

-​ Two competing purposes were argued in this case regulating the place for delivery
medical services in order to control the quality and nature of health care delivery (law
provincial)

-​ Attempting to prohibit the performance of abortions outside hospitals with a view to

suppressing or punishing what nova scotia perceives to be as socially undesirable
conduct of abortions ( federal)

-​ Describing criminal law power- a wide ranging power, looking for an evil or injurious or
undesirable effect upon the public against which the law is directed

-​ Describing provincial health jurisdiction- provinces have general legislative

jurisdiction over hospitals (92(7)) and medical profession (92(13)(16))- this would
extend to matters of cost efficiency, how health care delivered, privatization

How the court reached its conclusion

1.​ Examined the four corners of the legislation- what was the legal effect of the legislation?
2.​ Looked beyond the four corners of the legislation
-​ Compared the act to criminal code sections
-​ Examined the events leading up to the enactment of the act