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Intro Module 5 Test

review for module 5 test (the constitution) intro to law - 11/05/2020

QuestionAnswer
Canada began not as an independent nation but as a colony of _____? Great Britain
Describe the 4 main functions of Canada's Constitution. -to establish a political and economic union based on federal and democratic principles -to outline a framework for the machinery of government and establish governmental institutions
Describe the 4 main functions of Canada's Constitution (continued). -to distribute legislative and executive powers between provincial and national levels of government -to solidify and confirm the desire to remain closely associated with Great Britain and its' system of governance and to reject the influence of the USA
List 3 conventions and practices that were not included in the BNA Act but that mirror those of Great Britain. -the selection and role of the Prime Minister -the composition of the executive of the House of Commons or Cabinet -the existence and role of political parties
Which Act and which Prime Minister brought our Constitution home? The Canada Act & Prime Minister Pierre Trudeau
When did the Privy Council in England stop hearing appeals from our Supreme Court of Canada? December 23, 1949
"The Constitution Act 1982 abolished and replaced the Constitution Act 1867" True or false? Discuss. False, it consolidated and amended the British North America Act, 1867 and renamed it the Constitution Act, 1867.
"The Canadian Charter of Rights is not an Act unto itself" True or False? Why? True, it is Part 1 of the Constitution Act, 1982.
Identify the 2 ways in which the Constitution differs from other statutes. -the Constitution has supremacy over all other laws in Canada -the Constitution cannot be amended as easily as other laws, it can only be amended in accordance with certain rules and procedures set out in the Constitution itself
Which level of government has residual power over the Constitution? Federal
What does the acronym POGG stand for? Peace, Order and Good Government
Describe the 3 areas the federal Government has exceptional power under the POGG clause. -the gap or residual branch (power to govern matters that are not specifically allocated in the Constitution) -the emergency branch (where laws of temporary nature may be implemented, allows Parliament to intrude in matters of provincial jurisdiction)
Describe the 3 areas the federal Government has exceptional power under the POGG clause (continued). -the national concern branch (gives Parliament the power to deal with matters beyond a local or provincial concern that are important to the nation as a whole)
List the 3 areas of activity that can be governed by both the federal and provincial governments. What is this type of jurisdiction called? -old age pensions -agriculture -immigration -concurrent jurisdiction
Describe the general amending formula under the Constitution The general formula (s. 38) requires that seven provinces that make up at least 50% of Canada's population agree to the constitutional amendment
In which section do we find those matters that are subject to the general amending formula? s. 42
Provide 2 examples of amendments that have to be agreed upon by Parliament, all provincial legislatures, The House of Commons and the Senate. -proposed changes to the role of the Governor General or Lieutenant Governor of a province -The composition of the Supreme Court of Canada
Who has power over criminal matters in Canada? Discuss. Criminal law is a concurrent power between Parliament and the legislature. Parliament enjoys a broad power to enact criminal law for the public good. Legislatures must ground their criminal law in an existing head of provincial power.
Who has power over criminal matters in Canada? Discuss. (continued) Section 91(27) grants Parliament the broad power to enact criminal legislation. Section 92(15) empowers the legislature to pass criminal laws on matters under their jurisdiction.
How does a court decide difficult cases? (government power) By using 3 legal doctrines: -pith and substance -interjurisdictional immunity -federal paramountcy
How does the court determine the pith and substance of the law? What does the court then determine? By examining the law and ascertaining what is the main thrust of the law. They then determine which head of power covers the main thrust of the law.
What does incidental effect refer to? The effect an intra vires law may have on the other level of government. If the effect is only incidental, the law will still be intra vires.
What does double aspect refer to? The fact that a law may affect both levels of government and can still be valid.
What is a law if it is passed by one level of government and has more than just an incidental affect on the authority of the other level of government? Prima facie (on its face) unconstitutional
When does the doctrine of pith and substance allow the unconstitutional law to stand? If it plays an important role in a valid legislative scheme.
What is an example of interjurisdictional immunity and what does it do? The Employment Standards Act of Ontario, which provides minimum standards to employees
Who does the Employment Standards Act not apply to? Workers in federally regulated businesses, such as airlines or banks
How does the ESA apply to the federal government? The federal government is immune from the ESA and does not have to comply with it
When there is a conflict between a federal law and a provincial law, What will happen? The federal law will take precedence and the provincial law will be inoperative to the extent of the conflict
What does conflict refer to, regarding federal paramountcy? The impossibility of dual compliance.
Created by: EmSpencer
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