The Constitution of Canada : A Contextual Analysis

ISBN-13: 9781841133638 / Angielski / Miękka / 2015 / 304 str.

Jeremy Webber

Opis

This book introduces and describes the principal characteristics of the Canadian Constitution, including Canada's institutional structure and the principal drivers of Canadian constitutional development. The Constitution is set in its historical context, noting especially the complex interaction of national and regional societies that continues to shape the country's Constitution. The book argues that aspects of the Constitution are best understood in 'agonistic' terms, as the product of a continuing encounter or negotiation, with each of the contending interpretations rooted in significantly different visions of the relationship among peoples and societies in Canada. It suggests how these agonistic relationships have, to a limited extent, found expression in distinctive doctrines of Canadian constitutional law and how these doctrines represent approaches to constitutional legality that may be more widely applicable. As such, the book charts the Canadian expression of trans-societal constitutional themes - democracy, parliamentarism, federalism, and human rights - and describes the institutional structure that has resulted from the interplay of these themes. (Series: Constitutional Systems of the World)

Spis treści

C1 INTRODUCTION C2 THE MAKING OF THE CANADIAN CONSTITUTION I. Pre-confederation Canada A. Founding of British North America B. Conflict, Rebellion and Responsible Government II. Post-confederation Canada A. Territorial Extension B. From Colony to Nation C. Canada’s Economic Evolution D. Provincialism, Regionalism and Canadian Nationhood E. Federalism and the French Canadians F. Multicultural Canada G. Aboriginal Rights III. The Contemporary Canadian Constitution: Patriation and its Aftermath A. Constitution Act 1982 B. Negotiations after Patriation C. 1995 Referendum on Quebec Sovereignty and the Secession Reference D. ‘Administrative Measures’ E. Economic Integration with the United States IV. Conclusion Selected Reading C3 THE LEGISLATIVE POWER I. Parliamentary Sovereignty A. Principle B. Internal Limitations on Parliamentary Sovereignty C. Limitation (or Abandonment?) of Parliamentary Sovereignty II. Canadian Parliaments A. Parliament of Canada B. Provincial Legislatures C. Other Legislative Bodies III. The Legislative Process IV. Parliamentary Officers V. Parliamentary Privileges and Immunities VI. Public Participation in the Legislative Process VII. Elections VIII. Reform of the Legislative Process IX. Conclusion Selected Reading C4 THE EXECUTIVE POWER I. Responsible Government A. Principle B. Formation of Governments C. Responsible Government as a Constitutional Convention II. Structure of the Executive A. The Monarchy and Its Representatives B. Prime Minister and Cabinet C. Ministers and their Departments D. Government Agencies, Crown Corporations and Administrative Tribunals III. The Rule of Law A. Legal Foundations of Executive Authority B. Executive Privileges and Immunities C. Institutionalization of the Rule of Law IV. Conclusion Selected Reading C5 THE JUDICIARY I. Court Structure A. Superior Courts B. Federal Court C. Provincial Courts D. Administrative Tribunals E. Supreme Court of Canada II. Judicial Independence A. Constitution Act 1867, Sections 99 and 100 B. Constitution Act 1982, Section 11(d) C. Implied Principle of Judicial Independence III. Supreme Court of Canada as a Constitutional Court A. References and Justiciability B. Parties, Intervenors, Representation and Evidence C. Constitutional Remedies IV. Conclusion Selected Reading C6 FEDERALISM I. Visions of the Canadian Federation A. Canada as a Quasi-Federation B. Compact versus Statute? C. Quebec’s Distinct Society versus the Equality of the Provinces D. Comparisons to the European Union E. Conclusion II. Principles of Interpretation of the Division of Powers III. Federal and Provincial Powers A. Peace, Order and Good Government B. ‘Property and Civil Rights’ and ‘Matters of a Merely Local or Private Nature’ C. Federal Economic Powers D. Criminal Law Power E. Social Legislation F. Citizenship, International Affairs and Defence G. Provincial Authority over Public Lands H. Fiscal Relations, Taxation, Equalization and the Spending Power IV. Cooperative Federalism V. Conclusion Selected Reading C7 RIGHTS AND FREEDOMS I. The Universe of Rights Protections in Canada A. Legislative Support of Rights B. Courts and Rights Before the Charter C. Executive Enforcement of Rights II. Canadian Charter of Rights and Freedoms A. Application and Structure B. Substance of Rights and Freedoms under the Charter III. Conclusion Selected Reading C8 ABORIGINAL PEOPLES I. Constitution Act 1982, Section 35 A. Adoption of Section 35 B. Aboriginal Rights to Land and Resources C. Effect of Section 35 D. Haida and the Turn towards Interim Measures II. Federal/Provincial Authority, Fiduciary Obligations and the Honour of the Crown A. Constitutional Authority with respect to Aboriginal Peoples B. Fiduciary Duty and the Honour of the Crown III. Treaties IV. Self-government V. Resurgence of Aboriginal Jurisdictions VI. Conclusion ............................................................................. 255 Selected Reading ................................................................................ 258 C9 CONCLUSION .............................................................................. 259 Selected Reading ................................................................................ 266