Government and Statute Law

Transcription

1 3 Government and Statute Law CHAPTER OUTLINE CHAPTER OVERVIEW A constitution is the fundamental law of any country. Canadians have a unique constitutional experience that reflects the history of their nation. As a product of two founding peoples, Canada s Constitution has had to maintain a delicate balance between the aspirations of the French and English cultures. This chapter is divided into three main sections that help students understand the historical background and modern workings of the Constitution. The first section outlines the division of powers in the federal system as outlined in the British North America Act, It explains two important doctrines: intra vires (the passing of a law within a government s jurisdiction) and ultra vires (the passing of a law that is beyond the powers of a specific government). The second section looks at some of the issues surrounding the patriation of the Constitution. It includes an overview of certain features of the Constitution Act, 1982, including the Principle of Equalization and the addition of the Charter of Rights and Freedoms. This section also provides a description of the Meech Lake Accord and the Charlottetown Accord, two unsuccessful attempts to entice Quebec to sign the Constitution. The third section covers government and law making in Canada, focusing on how laws are made and enforced. The Looking Back activities provided at the end of the chapter offer students a variety of activities that enable them to demonstrate and apply their knowledge and understanding of the key concepts related to government and law. Canada s Constitution British North America Act, 1867 A Federal System Division of Powers Patriating the Constitution Problems with the BNA Act Constitution Act, 1982 Constitutional Conflict Government and Law Making The Executive Branch The Legislative Branch The Judiciary Enacting a Statute The Role of Individuals and Interest Groups 75

2 PLANNING CHART Key Content Topic: Canada s Constitution Key Vocabulary unitary system federal system residual powers intra vires ultra vires Resources Law in Action, pp Generic Assessment Master G-12: Rubric: Current Events Report COPY Assessment Suggested Strategies 1. Use the questions in the chapter opener (page 51 of the student text) to encourage discussion about issues involved in making laws. 2. Assign Extension Activity 1: Current Events Report, located on page 89 of this resource. 3. Introduce the topic of Canada s Constitution by using an appropriate video. The National Film Board s Our Constitution: The Law of the Land (see Additional Resources on page 92 of this resource) provides a good overview of Canada s constitutional history. A question sheet could be used to provide students with a summary of the video. 4. Have students read pages 52 to 55 of the text for homework. In the following class, ask students to work in pairs to answer the Building Your Understanding questions on page 57 of the text. The answers to these questions will form the basis of their study notes. 5. As a class, read the case of The Attorney General for Alberta v. The Attorney General of Canada on page 56 of the text and have students answer the questions orally. Use this case to draw out the concepts of ultra vires and intra vires. Topic: Patriating the Constitution Key Vocabulary Statute of Westminster shared cost agreements civil liberties patriate Principle of Equalization amending formula Canadian Charter of Rights and Freedoms Resources Law in Action, pp You may wish to supplement the section in the text describing the patriation of Canada s Constitution with the National Film Board video called The Road to Patriation, which provides a good historical background to this event. 2. Have the students read the background material from pages 57 to 61 of the text. The Building Your Understanding questions on page 61 of the text could be assigned for homework, or students could answer questions orally in class. 3. Review the key concepts from this section as a class. 4. If time permits, provide students with the Additional Cases on pages of this resource. Have them read the cases and answer the analysis questions in small groups. The groups could then present their findings to the class. Finish with a class discussion of the cases and highlight the ongoing tension between the federal and provincial governments regarding jurisdiction, particularly with respect to natural resources. 76 UNIT 1 Our Legal Heritage

3 Key Content Topic: Government and Law Making Key Vocabulary executive branch legislative branch judiciary bill government or public bill private member s bill lobby groups Resources Law in Action, pp PowerPoint Overhead: Figure 3.6 PowerPoint Overhead: Figure 3.7 PowerPoint Overhead: Figure 3.8 Suggested Strategies 1. Outline and explain the process by which a law is enacted. In order to facilitate this presentation use the PowerPoint overheads for Figures 3.6, 3.7, and 3.8 of the text. 2. Once students are familiar with the process of how a law is passed, have them work in groups to examine Looking Back question 12 on page 71 of the text. Have the groups formulate a plan as outlined in the question. Complete this question with a follow-up discussion that examines the strategies that students may have adopted after learning the process (for example, forming lobby groups will help to gain support for their cause; winning the support of a government member, especially a cabinet member, would help to get their law passed). Students should be aware of the need to approach the appropriate level of government in order to change a specific law. Allow about 15 minutes for this section. 3. Have students answer the Building Your Understanding questions on page 68 of the text to complete their summary notes for this section. Chapter Review Resources Law in Action, Law in the Extreme: Medical Research Brings Hope and Controversy, p. 69 Law in Action, Looking Back, pp Generic Assessment Master G-2: Rubric: Research Report COPY Assessment - Generic Assessment Master G-7: Rubric: Oral Presentation COPY Assessment - Assessment Master 3-1: Checklist: Group Assessment of Town-Hall Meeting COPY Assessment - Assessment Master 3-2: Rubric: Student Reflection on Town-Hall Meeting COPY Assessment - Generic Assessment Master G-11: Rubric: Essay COPY Assessment Law in Action, Cases, pp Generic Assessment Master G-3: Rubric: Case Analysis COPY Assessment - Generic Assessment Master G-10: Rubric: Case Presentation COPY Assessment Additional Cases: Reference re Goods and Services Tax; Nanaimo (City) v. Rascal Trucking Ltd; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture) COPY Case Analysis Law in Action, Test Bank, Chapter 3 CHAPTER 3 Government and Statute Law 77

4 Key Content Extension Activities Suggested Strategies Activity 1: Current Events Report - Generic Assessment Master G-12: Rubric: Current Events Report COPY Assessment Activity 2: Case Report - Generic Assessment Master G-3: Rubric: Case Analysis COPY Assessment Activity 3: Division of Power - Generic Assessment Master G-1: Checklist: Group Work COPY Assessment Activity 4: Royal Commissions - Generic Assessment Master G-2: Rubric: Research Report COPY Assessment 78 UNIT 1 Our Legal Heritage

5 Legal Logic Test Your Aptitude for Law: Activities for Getting Started Puzzle 1 The Fathers of Confederation divided the powers in the British North America Act based on the idea that matters of national concern would belong to the central (federal) government, while issues of a local nature would be dealt with by the provincial government. Which of the following would be powers assigned to the central government? a) international relations b) currency and coinage c) regulation of the Internet d) education e) hospitals Answer a), b), c) Puzzle 2 Which of the following would be powers assigned to the provincial government? a) labour and trade unions b) marriage ceremonies c) criminal law d) trade and commerce e) property and civil rights Answer: a), b), e) Puzzle 3 Systems of government are named according to the number and type of people involved in the governing system. The ending for each of these systems is -cracy, which comes from the Greek word kratos meaning to rule. Since the word demos in Greek means the people, the word democracy means rule by the people. Identify the meaning of each of the following terms. a) theocracy b) oligarchy c) aristocracy d) plutocracy e) autocracy Answers: a) theocracy: rule by one religious authority; b) oligarchy: rule by a few individuals; c) aristocracy: rule by an elite group or class of people; d) plutocracy: rule by the wealthy class; e) autocracy: rule by one person who has unlimited power Puzzle 4 Unscramble the following terms relating to government and statute law. a) rpitatea b) qnelauaziiot c) yuidicjra Answers: patriate, equalization, judiciary Pearson Education Canada LAW IN ACTION. The right to reproduce this page is restricted to the purchasing school. 79

6 Solutions to Questions and Cases Page 56 Guided Case: The Attorney General for Alberta v. The Attorney General of Canada 1. The legal term for this argument is ultra vires. 2. The Supreme Court found that the Firearms Act did not infringe on provincial powers and that upholding the Act as a criminal law would not upset the balance of federalism. 3. Arguments used by the Alberta government could include the following: Ownership of guns or any other property falls under s. 92 of the Constitution Act dealing with property and civil rights, a provincial jurisdiction. Registration of guns would pose a particular hardship on Alberta because of the number of hunters and farmers in the province. Page 57 Building Your Understanding 1. A unitary system of government would not be practical for Canada because of the country s geographic size and diverse population. It would be difficult for a single government to take care of the needs of the various regions. In addition, at the time of Confederation, the two main cultural groups were the French and the English. Given that each group had its own concerns, it was best to leave matters that would cause disagreements (such as education) to the provincial governments and matters that were of common concern (such as defence) to the federal government. 2. The central government in Canada is stronger than the central government in the United States, so the Canadian provinces do not have as much power as the American states. 3. Responsibilities given to the federal government under the British North America Act included banking, census and statistics, citizenship, criminal law, currency and coinage, defence, foreign affairs, Indian affairs, marriage and divorce, navigation and shipping, patents and copyrights, penitentiaries, postal service, public debt, residual powers, seacoast and inland fisheries, taxation, and trade and commerce. 4. The responsibility for education was given to the provinces in recognition of the special language and religious rights of people in different parts of the country. In Quebec, for example, the school system was predominantly French and Catholic; in Ontario, it was mostly English and Protestant. 5. The provincial and federal governments are only allowed to pass laws that are within their jurisdiction (intra vires). If the federal government passed a law that stated that all children must attend school until the age of 18, for example, the courts would strike down this law as ultra vires because education is a provincial responsibility. Similarly, if the government of Prince Edward Island passed a law requiring PEI residents to use provincially produced postage stamps, then the courts would strike down this law since postal service falls under federal jurisdiction. 6. Because the Internet is a form of communication and is international in scope, it would be logical to assign this power to the federal government. Federal jurisdiction also makes sense since the Internet uses telephone lines and television cable connections, which fall under federal jurisdiction. Page 58 Figure 3.4 Students who feel that Lévesque was justified will argue that the final deal was made behind his back and without his consent. As a result, he was justified in not signing the deal. Those who believe that Lévesque was not justified in refusing to sign the deal will argue that the powers Lévesque wanted for his province would have weakened the federal system. 80 UNIT 1 Our Legal Heritage

7 Page 59 Consider This Students who feel that the federal government should intervene might point out the importance of fresh water for survival and argue that Canada s fresh water belongs to all Canadians. For this reason, the federal government should have the right to intervene if a province decided to sell the fresh water within its boundaries to another country. Students who feel that the federal government should not intervene might argue that because the Constitution gave the provinces power over their resources, federal intervention would be ultra vires and, therefore, wrong. They might also argue that if a province like Alberta can benefit from its supply of oil, then another province should have the right to benefit from its supply of fresh water, since both oil and water are natural resources. Page 61 Building Your Understanding 1. The Statute of Westminster expanded Canada s law-making powers by allowing Canada to make its own laws independently. These laws could not be overruled by Britain even if they contradicted British laws. Also, Canada could make agreements with other countries, such as trade agreements, without British involvement or approval. 2. Problems associated with the British North America Act included the following: Canada had to ask the British to amend the Act whenever changes were required. Under the BNA Act, there was confusion regarding the division of powers, such as responsibility for natural resources, Although the federal government had been awarded residual powers, there was confusion over which level of government had jurisdiction over responsibilities that were non-existent in The BNA Act did not contain any provisions to protect the civil liberties of Canadians. 3. The Supreme Court of Canada ruled that the federal government did have the authority to patriate the Constitution without provincial approval, but to do so would be politically unwise and contrary to the unwritten principles of the BNA Act. 4. The four key elements added to the Constitution Act, 1982, and their importance are outlined in Table TR 3.1 below. 5. The Supreme Court of Canada may have determined that Quebec is subject to the Constitution because of its earlier decision that approval of the provinces was not necessary in order to patriate the Constitution. Therefore, the federal government also had the power to include all of the provinces under the Constitution Act. The Court may have also felt that the creation of Canada was an act of the British Parliament, not an agreement between the provinces, so provincial consent was not required to adopt the Constitution. Table TR 3.1: Answer to Building Your Understanding #4, Page 61-3Key Elements Added to the Constitution Act, 1982 a principle regarding the equalizing of services across Canada a clearer interpretation of who was responsible for control and management of natural resources a formula indicating what terms would be necessary to make future amendments to the Constitution a Charter guaranteeing individual rights and freedoms Importance ensures that all Canadians have equal access to essential services gives provinces powers over their resources (with some restrictions) establishes a means of making future changes to the Constitution sets out constitutionally protected rights and freedoms CHAPTER 3 Government and Statute Law 81

8 Page 62 Law in Your Life The civil service administers all areas of government services. Any time people deal with a branch of the federal or provincial government, they are dealing with the civil service. Students can list a wide variety of examples, including getting a passport, getting a visa, paying tax, applying for a Social Insurance Number, and getting a health card. Page 67 Figure 3.10 Lobby groups can use public protests or demonstrations to draw public attention to a particular issue. They may also circulate petitions and present them to the government. They may lobby government ministers for changes in a particular department or perhaps seek help from opposition members to raise the issue in Parliament (or the provincial legislature). Page 68 Law in Action: Royal Commission on Aboriginal Peoples, Some people might object to the idea of Aboriginal peoples establishing a third order of government because they may not see how it is possible to have a separate group of self-governing peoples within the Canadian nation. They may also raise the issue that according to the Rule of Law, everyone should be treated equally. 2. Students who agree might note that the role of the government is to provide leadership and not to simply follow the wishes of the majority. If the Commission s recommendations offer a fair solution to the Aboriginal peoples, then they should be implemented. Students who disagree might argue that Canada is a democracy and, therefore, the will of the people should determine government policy. As long as there is no discrimination or unfairness in the government s decisions, the will of the people should rule. Building Your Understanding 1. The role of the executive branch is to propose new laws, administer existing laws, set policy, and control government spending. The role of the legislative branch is to make new laws, change existing laws, or repeal laws. The role of the judiciary is to adjudicate disputes, interpret the laws, and decide on punishments in Canada s court system. The courts also determine if a law is within the jurisdiction of a level of government and if it complies with the Charter of Rights and Freedoms. 2. The role of the judiciary has become much more important since the Charter of Rights and Freedoms was entrenched in the Constitution in Since all laws must adhere to the principles set out in the Charter, the courts now have much broader powers to strike down laws that infringe on rights guaranteed in the Charter. 3. A government bill is a proposed new law that is introduced by a Cabinet minister. Such bills have the support of the government and are rarely defeated. A private member s bill is one that is introduced by a member of the legislature who does not hold a cabinet position. Since this type of bill does not start with the support of the government, it is more difficult to get it passed. 4. During second reading, the principle of the bill is debated. If major flaws or objections to the bill are found or if good suggestions are made, the bill is usually revised by a committee. 5. A federal bill passes three readings in the House of Commons. At first reading, the bill is introduced and background information is supplied. At second reading, the principles of the bill are debated. At third reading, the content of the bill is debated. No amendments can be made at this stage. If the bill is passed, it moves to the Senate where it goes through the same process. After the bill passes the Senate, it is signed by the Governor General, who gives royal assent, and the bill is proclaimed law. There is no Senate at the provincial level. Once a bill passes the three readings in the legislature, it goes directly to the Lieutenant-Governor for royal assent and is proclaimed law. 6. The role of the Senate is to act as a sober second thought for legislation. The Senate generally examines a bill in detail to determine if important changes need 82 UNIT 1 Our Legal Heritage

9 to be made. It is believed that since members of the Senate are not elected, they will examine the bill on its merits and not on its political appeal. 7. An existing law may be struck down if it violates one of the fundamental rights or freedoms set out in the Charter because constitutional law overrides statute law. For example, many provinces had a Lord s Day Act or Shops Closing Act that prohibited businesses to operate on Sundays. Since this law was based on Christian principles, it was ruled to be unconstitutional because it violated the Charter s guarantee of freedom of religion. 8. A Royal Commission is a government-appointed body that investigates a specific important national problem. A lobby group is not appointed by the government. It consists of a number of concerned private citizens who wish to have laws changed in favour of their cause. Page 69 Law in the Extreme: Medical research brings hope and controversy 1. Possible questions that a Member of Parliament might want answered may include the following: How will the system be monitored? Who will ensure compliance with the regulations? What will the penalty be for breaking the guidelines? Will the legislation include provisions for automatic review of the guidelines, given that technology changes rapidly? Changes that might be proposed: allowing for the use of adult stem cells only (reflects the ethical concerns of many people) banning the use of stem cells taken from surplus human embryos (addresses the fear that embryos will be created specifically to obtain stem cells) allowing family members to donate stem cells for their relatives (eliminates the fear of people profiting from the sale of stem cells) 2. The United States legislation referred to is Bill H.R. 2059: Stem Cell Research Act of Students can use the Web site to locate a copy of the text of the bill. As in Canada, the issue is far from over in the United States (see the U.S. Legislation Background Information material provided below). As an alternative activity, students could research new developments on the issue of reproductive technology legislation in Canada and the United States (and/or another country). U.S. Legislation Background Information: On June 5, 2001, Bill H.R was introduced to amend the Public Health Service Act to provide for research with respect to human embryonic stem cells. This Act, known as the Stem Cell Research Act of 2001 had the provisions shown in Table TR 3.2 (see page 84). In August 2001, President George W. Bush announced that the federal government would limit federal funding for embryonic stem-cell research to stem-cell lines in existence at that time (approximately 60). This would exclude discarded embryos from in-vitro fertilization that were allowed in Bill S President Bush s announcement sparked controversy in the U.S. Congress. The Health, Education, Labor and Pensions Committee began holding hearings in September 2001 to take a broad look at the issue of embryonic stem-cell research and Bush s decision. In March 2002, proposed legislation was introduced to criminalize embryonic stem-cell research in the United States. This would mean that researchers who continued their work would face criminal prosecution. An alternative piece of legislation to ban reproductive cloning but allow therapeutic cloning or somatic cell nuclear transfer (SCNT) was passed by the House of Representatives (Bill S. 2439: Human Cloning Prohibition Act of 2002). In June 2002, hearings were still being conducted. Hollywood actors Christopher Reeve, who is paralyzed from the neck down as a result of a fall from a horse, Kevin Kline, an advocate on behalf of juvenile diabetes, and Michael J. Fox, who suffers from Parkinson s disease, testified before Congress in support of SCNT. The following Web sites provide useful information related to this activity: parttwo.html provides a discussion of Canada s laws on reproductive technologies and links to CHAPTER 3 Government and Statute Law 83

10 related information; includes links to Allan Rock s draft legislation and information on the Canadian bill on assisted human reproduction released by Anne McLellan on May 9, government/c-56/c-56_1/c-56toce.html provides the text of Bill C-56: An Act Respecting Assisted Human Reproduction (first reading) _34.htm provides a summary of the provisions of Bill C-56 as well as links to related information on the topic of assisted human reproduction; includes a link to a summary of how other countries are addressing the issue allows the user to search for U.S. bills by keywords or bill number /08/09/stemcells contains a news brief on U.S. President George W. Bush s August 2001 announcement regarding embryonic stemcell research Table TR 3.2: Answer to Law in the Extreme #2, Page 69-3 Canada: Guidelines Proposed by the Commons Committee on Health Prohibit creating human embryos specifically to obtain stem cells creating stem cells through cloning combining human or non-human stem cells with a human embryo or fetus donating stem cells for use on specific individuals, except for self-donations Allow cells taken from a human fetus or amniotic fluid after an abortion cells taken from an umbilical cord or placenta of a newborn (with informed consent only) adult stem cells taken from other human tissue (with informed consent only) cells taken from surplus human embryos created for reproductive use United States: Bill H.R Prohibit creating human embryos reproductive cloning of a human being acquiring, receiving, or transferring human gametes of embryos for valuable consideration if such acquisition, receipt, or transfer affects interstate commerce Allow human embryonic stem cells may be derived only from in-vitro fertilization clinics with written informed consent of the progenitors 84 UNIT 1 Our Legal Heritage

11 Looking Back Pages Quick Quiz 1. a) False. Ultra vires means beyond the government s jurisdictional power; b) True; c) False. Residual powers are assigned to the federal government but are not specifically identified; d) False. A bill is a proposed law; e) False. Prime Minister Trudeau was in office when the Constitution was patriated; f) True; g) True; h) False. These are two sections of the Constitution Act; i) False. In a unitary system there is only one level of government that holds all of the power; j) False. This was a British statute that allowed all of the Dominions more power; k) False. Shared cost agreements were devised to allow two levels of government to share the cost of programs in areas not identified in the BNA Act; l) True. Checking Your Knowledge 2. Canada rejected the unitary model of government in Great Britain because since Canada is a much bigger country than Great Britain, having power centralized in the federal government was seen as impractical. Also, Canada had two distinct founding cultures (French and English) that had to be accommodated. The American model of a federal union was also considered unsuitable for Canada because it gave too much power to the individual states, power that may have contributed to a civil war in that country. 3. Residual powers refer to the powers that are not specifically listed in the Constitution as being assigned to one level of government or the other. The residual powers fall under the central (federal) government s jurisdiction. 4. Intra vires refers to legislation that is created within the authority of a legislative body. For example, s. 93 of the Constitution Act assigns the power over education to the provinces, which means that provincial governments determine policy for education in their province. Ultra vires refers to legislation that has been created that is beyond the authority of the legislative body. Should the federal government create legislation on educational matters that are within the provincial jurisdiction, such legislation could be declared ultra vires, and therefore, not legal. 5. The Principle of Equalization is found in s. 36 of the Constitution Act, 1982, and it states that essential public services of reasonable quality should be available to all Canadians. This principle could be applied in the areas of heath care and education. For example, people living in a smaller province like Newfoundland and Labrador should not be denied health-care services that are available to people living in larger, wealthier provinces. 6. The BNA Act gave responsibility for natural resources to the provinces. Fishing, however, came under federal jurisdiction. In the past, both levels of government have claimed authority over other resources such as uranium, oil, water, and natural gas. Under the Constitution Act, 1982, the provinces have control over natural resources such as natural gas, but there are some restrictions placed on this control. 7. The amending formula included in the Constitution Act, 1982, provided that any changes to the Constitution required the approval of the Parliament of Canada plus two-thirds of the provinces representing 50 percent of the population or more. In the case where only one province is involved, that province and the Parliament of Canada need only approve the change. 8. The Meech Lake Accord did not receive the required approval of all 10 provinces and the Parliament of Canada because it failed to acknowledge Aboriginal rights; strong opposition came from the West-based Reform Party; many Canadians objected to conferring any kind of special status on one province (Quebec); and former prime minister Pierre Trudeau spoke out against the agreement, stating that it gave too much power to the provinces and weakened the federal government. CHAPTER 3 Government and Statute Law 85

12 The Charlottetown Accord was defeated in a national referendum because some people in Quebec feared that the provision for Aboriginal self-government would affect large portions of their province; many in Quebec felt that the accord did not give them enough power; and many Canadians outside Quebec felt that the accord gave Quebec too much power. 9. a) After a bill has been passed by the Senate, it goes to the Governor General where it receives royal assent and is proclaimed to be in force. The bill then becomes an Act, is given a Statute number, and is reprinted. b) If Parliament adjourns before a vote on the bill is taken, then the bill dies on the floor, which means that it is no longer under consideration to become law. If the government still wanted to pass this legislation, then it would have to reintroduce the bill in the next parliamentary session. c) After a bill is passed by the House of Commons, it moves to the Senate where it goes through the three readings. d) If a bill is defeated in the House of Commons, then the bill dies and is no longer under consideration to become law. 10. The purpose of a Royal Commission is to conduct an impartial investigation of specific national problems. A commission extensively examines an important issue of national concern and then makes recommendations to the government on how to deal with these problems. The government may then choose to implement those recommendations by changing the law. Developing Your Thinking and Inquiry Skills 11. a) The federal government is responsible for employment insurance. b) The federal government is responsible for patents. c) The municipal government is responsible for such local regulations. 12. Examples of proposed legislation in criminal law could include the need to deal with the newly perceived threat of terrorism. Changes to contract law may be required to deal with the growing use of the Internet. Family law may need to be changed to deal with the issue of same-sex marriages. Students plans could include contacting the office of a local MP or MPP/MLA to get advice on how to draft legislation and how to get a bill through the legislative process. Plans could also include contacting a lobby group or forming one to bring greater public awareness to the need for the proposed legislation. 13. Second Chamber refers to the House of Lords in Britain (the Senate, in Canada). In Abbé Sieyè s opinion, a non-elected body does not have the legitimacy to deal with legislation. Consequently, it is of no importance whether the chamber agrees or disagrees with legislation. Students may support the position that a non-elected body should not have a say in legislation. Others may feel that having a non-elected body review legislation ensures greater objectivity. 14. Trends that could lead to legislation might include the following: talking on a cellphone while driving using Rollerblades on major roads employees using the Internet for personal use while at work Students can present their findings in the form of a written report. Student reports can be assessed using Generic Assessment Master G-2: Rubric: Research Report. COPY Assessment Communicating Your Ideas 15. Arguments against the power of the Senate: The Senate is an appointed body and has no place in a democratic society. The Senate is not answerable to the people, so it cannot defeat legislation that reflects the will of the people. Senators do not have direct communication with Canadians, so they are not familiar with the general wishes of the people. 86 UNIT 1 Our Legal Heritage

13 Arguments in support of the power of the Senate: The Senate acts as a sober second thought for all legislation. Because senators are not elected, their concerns are not political and they are better able to determine what is in the best interest of the country. The Senate is able to carefully examine legislation for accuracy and then consider its overall impact. The Senate provides regional representation in Parliament and ensures that the regional interests are considered in the legislative process. Student presentations can be assessed using Generic Assessment Master G-7: Rubric: Oral Presentation. COPY Assessment 16. The group could be a single-issue group (e.g., a neighbourhood group lobbying to get a street light installed at a corner) or a long-standing one that promotes the specific interests of a group of people (e.g., business people, women, youth, the elderly, those with disabilities, single parents, teachers, or pet owners). Student reports can be assessed using Generic Assessment Master G-2: Rubric: Research Report. COPY Assessment 17. The town-hall meeting may require two periods. The first period could be for research and the second period for the actual meeting. The instructor or a student could act as the moderator. Students should also be appointed to record minutes from the meeting. Each group should make a two-minute opening statement that outlines its position on the issue. Each group should then be given a chance to outline one of its main arguments. The other groups can respond to these arguments. Questions and comments should be welcomed from the audience. The meeting can be evaluated using Assessment Master 3-1: Checklist: Group Assessment of Town- Hall Meeting. As a follow-up activity, students could be asked to write a one-page reflection paper on their experience of the town-hall meeting. The paper would discuss the purpose of the meeting, the groups involved, their particular group s position on the issue, and the results of the meeting. These papers could be assessed using Assessment Master 3-2: Rubric: Student Reflection on Town-Hall Meeting. COPY Assessment Putting It All Together 18. Students could be instructed to research this question and present their findings in an essay. Arguments that the federal government has too much power: Provincial governments are more in touch with the demands of the various regions than is the federal government. The most important issues facing the people of Canada fall under provincial authority (labour, education, and health care). The clause does not reflect the current reality in Canada. Provincial governments are more developed now than they were in They have acquired more expertise and play a greater role in governing their constituents than they did when the clause was originally written. Arguments that the federal government does not have too much power: A threat to the nation s peace and security requires a unified response from the government that has jurisdiction over national matters such as defence and foreign affairs. The response to a threat to peace or order must ultimately rest with one power in order to avoid confusion or conflict among provincial governments. Canada s participation in international treaties (disarmament, environmental, security) needs to be unified and negotiated by one government, not several, in order to ensure protection and peace throughout the country. Generic Assessment Master G-11: Rubric: Essay can be used to evaluate student responses to this question. COPY Assessment Page 72 Cases Teaching Suggestions: Each of the cases on pages of the student text and the Additional Cases provided on pages of this resource could be analyzed by a group of students (five cases with approximately five or six students in a group) and presented to the class using the outline on page 88: CHAPTER 3 Government and Statute Law 87

14 a) Relevant facts (the incident, companies or governments involved, in your own words) b) Legal question ultra vires or intra vires c) Answers to the questions d) Reason for the judgment Student work can be assessed using Generic Assessment Master G-3: Rubric: Case Analysis and Generic Assessment Master G-10: Rubric: Case Presentation. COPY Assessment Guided Case: R. v. Hydro-Québec 1. The Supreme Court determined that the provisions of the Canadian Environmental Protection Act are within the powers (intra vires) of the Parliament of Canada. The majority decision of the Court was based on the fact that s. 91 of the Constitution Act, 1867, gave Parliament the power to make criminal law in the widest sense. The Court determined that protecting the environment by prohibiting toxic substances falls within the meaning of enacting criminal law. PCBs are a highly toxic substance that can pose serious health risks to humans and animals. The Parliament of Canada is, therefore, within its authority to protect the people of Canada by enacting legislation that falls under the power of criminal law. 2. The dissenting opinion indicated that the provisions of the Canadian Environmental Protection Act were not intended to prohibit environmental pollution but simply to regulate it. Therefore, the provisions fail to meet the test of having a legitimate criminal purpose. 3. The decision could lead to a variety of implications for Hydro-Québec. The power corporation will need to adhere to the regulations set out in the Canadian Environmental Protection Act. The penalties imposed on the company will also need to be paid. The company must follow both provincial and federal environmental guidelines in the future (with respect to operating its facilities and expanding its operations). The decision means that Hydro-Québec and all utilities across Canada will have to follow similar regulations with respect to the discharge of PCBs into the environment. Page 73 Guided Case: R. v. Crown Zellerbach Canada Ltd. 1. The Court considered the Ocean Dumping Control Act a matter of national concern because marine pollution is an issue that goes beyond provincial boundaries and may have international implications as well. 2. The national concern doctrine is significant since it may be used to expand the powers of the central (federal) government. This doctrine allows the Parliament of Canada to enact legislation on any subject matter that may be considered of national concern. Parliament is not limited to the powers that are expressly listed in the Constitution Act, Solutions to Additional Cases Pages of this teacher resource Additional Case: Reference re Goods and Services Tax 1. The government of Alberta argued that by imposing a tax on goods and services, the federal government was interfering with provincial juris- diction under s. 92(13) of the Constitution Act, which gives the provinces jurisdiction over property and civil rights. Since the federal government was imposing a tax on property in Alberta, the Government of Alberta argued that this violated s. 92(13) of the Constitution Act. 2. The Supreme Court of Canada ruled that the purpose of the GST Act was to raise revenue for the 88 UNIT 1 Our Legal Heritage

15 federal government. Since the powers assigned to federal government include The raising of money by any mode or system of taxation [s. 91(3)], the federal government could impose this particular tax. The Court noted that while the tax may have an effect on matters within provincial jurisdiction over property and civil rights, it was not an infringement on provincial jurisdiction. 3. If the province of Alberta had been successful, the Supreme Court would have ruled the Act unconstitutional. The federal government would then have had to introduce new legislation. Additional Case: Nanaimo (City) v. Rascal Trucking Ltd. 1. Municipal governments receive their power from the provincial governments. Section 92 of the Constitution Act assigns to the provinces jurisdiction over municipal institutions. 2. The principle of intra vires is illustrated in this case because the province created the Municipal Act, which assigns certain powers to the municipalities in British Columbia. The City of Nanaimo passed resolutions that fell within the jurisdiction assigned by the province, so the resolution is intra vires. Additional Case: Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture) 1. The Kitkatla band challenged the legality of the site alteration permit because it did not want the trees cut. The Band argued that the power to grant such a permit was ultra vires the province because Aboriginal rights based on the existence of culturally modified trees in the area fall under federal jurisdiction. 2. The minister based his argument on the fact that the permit-granting procedure was simply about the granting of permits for logging in restricted areas. The Kitkatla Band was basing part of its argument on the constitutional validity of the Heritage Conservation Act, and this was an issue that could only be properly decided by the courts. 3. The Supreme Court dismissed the appeal because the Heritage Conservation Act fell within the jurisdiction of the provincial government. Since the Heritage Conservation Act dealt with issues affecting property and civil rights rather than Aboriginal rights, the Act was within provincial jurisdiction. Extension Activities Activity 1 Current Events Report Purpose This activity is intended to help students develop an awareness of the importance of constitutional law and the law-making process in Canada by examining newspaper reports on current events. Resources Newspapers Internet Generic Assessment Master G-12: Rubric: Current Events Report COPY Assessment Teaching Strategies a) Introduce this activity at the beginning of Chapter 3: Government and Statute Law. Encourage students to remain up-to-date on events in the news by reading the newspaper daily. Instruct students to follow the newspaper over the next 14 days and to clip articles dealing with any issues involving government and law in Canada. These articles could include the passage of a new law, the appointment of new cabinet ministers or other government officials, or changes to the Constitution. Students should have a minimum of five articles by the end of the two-week period. b) Have students submit a Current Events Report that includes a copy of each article (identifying the newspaper, date, page, and author), a brief CHAPTER 3 Government and Statute Law 89

16 summary of the article, and an explanation of the aspect of government and law to which the article is related. Alternatively, students could present their findings in class rather than submit a written report. Students should identify the source of the information, explain the content of the article, and identify the level of government involved and the legal aspects of the issue described in the article. Activity 2 Case Report Purpose This activity is designed to help students develop their analytical and communication skills. Students will have an opportunity to review an actual case from the court reports, summarize the case, and report their findings to the class. Resources Law in Action, The Attorney General for Alberta v. The Attorney General of Canada (page 56); R. v. Hydro-Québec (page 72); R. v. Crown Zellerbach Canada Ltd. (page 73) Internet Generic Assessment Master G-3: Rubric: Case Analysis COPY Case Analysis Teaching Strategies Note: The case studies from pages 56, 72, and 73 of Law in Action are to serve as a model for a student case report. These cases should be completed and taken up in class prior to having students work on the extension activity. a) Have students review the cases listed above. b) Ask students to work with a partner to prepare a case report on a constitutional case following the model used in the text. They should select a constitutional case from either the provincial superior court or the Supreme Court of Canada (case reports are available on-line). c) Have students present their completed case reports to the class and act as facilitators for the discussion of the Analysis questions they devised for their cases. Activity 3 Division of Power Purpose This activity allows students to develop research and communication skills as they examine a conflict between the federal and provincial governments on a specific issue. Resources Library Resource Centre Generic Assessment Master G-1: Rubric: Group Work COPY Assessment Generic Assessment Master G-7: Rubric: Oral Presentation Teaching Strategies a) Book the Library Resource Centre in advance of this activity. Provide the teacher-librarian with a copy of the assignment to assist the librarian in finding appropriate resources (books, magazines, Web sites, etc.) for students. b) Have students prepare a research report (a maximum of three pages) on a federal provincial conflict. Students may select from a variety of topics, depending on local interests. Some possible topics include Alberta s dispute with Ottawa in 1980 over the National Energy Program; Quebec s dispute with the federal government over the funding of the Canada Pension Plan; health care (almost all provinces share this concern); Ontario s dispute regarding the Youth Criminal Justice Act; or any other suitable issue. Historical conflicts might also be investigated, such as the early constitutional battles in Hodge v. The Queen, the Local Prohibition case, or other cases that can be found in books on Canada s constitutional history. Activity 4 Royal Commissions Purpose This activity is designed to help students develop their research and communication skills in a co-operative setting. Canada has a long history of using Royal 90 UNIT 1 Our Legal Heritage

17 Commissions as a method of dealing with issues of public concern. Students will examine a specific Royal Commission and determine how it affected Canada s laws. Resources Library Resource Centre CBC News in Review videotape, February 1998, The Krever Inquiry: Assigning Blame Generic Assessment Master G-2: Rubric: Research Report COPY Assessment Teaching Strategies a) Book the Library Resource Centre for students to conduct research during this activity. If time is available, show the CBC News in Review video segment from February 1998 entitled The Krever Inquiry: Assigning Blame. This video will give students an understanding of how a Royal Commission works and what recommendations the Commission made. After showing the video, inform students that while many of the recommendations set out by the inquiry were enacted (for example, the Canadian Blood Services now looks after Canada s blood supply), others were not. b) Divide the class into groups of four. Assign a Royal Commission to each group to examine. Note: You will need to determine a suitable number of Royal Commissions in advance and work with the teacher-librarian to ensure that resources on the commissions are available for students. Some commissions are more directly related to law than others (such as the Native Justice Inquiry in Manitoba, for example), but current events or local interest should also be taken into consideration when determining the commissions to be examined. c) Instruct each group to prepare a class presentation outlining the details and impact of its assigned commission. In their presentations, students will need to include reasons why the commission was established, its mandate, a summary of its findings and recommendations, and how the law has been changed as a result of the commission (how many of its recommendations were implemented). Students can use visual aids (graphs, charts, photographs) and appropriate media (presentation software, video, etc.) to make their presentations. Each presentation should be 15 minutes in length. d) Following the presentations, instruct students to assess the effectiveness of Royal Commissions in the law-making process. Student assessments should be two pages in length and should include specific examples. CHAPTER 3 Government and Statute Law 91

18 Additional Resources Books The Canadian Encyclopedia is an excellent source of information on all aspects of Canadian constitutional law. It contains articles on many constitutional topics, such as patriation and the Meech Lake Accord, and biographies of the key figures involved, from John A. Macdonald to Pierre Elliott Trudeau. Articles are followed by a list of suggested readings. If the Canadian Encyclopedia is not available in your Library Resource Centre, it can be accessed on-line through the Historica Foundation at Eugene Forsey was Canada s foremost constitutional expert. His books and articles are useful for both teachers and students studying Canada s system of government and the Constitution. Magazines LawNow is a bi-monthly magazine published by the legal studies program at the University of Alberta. It is a relatively inexpensive resource to which many school libraries or social studies departments subscribe. Sample articles and information are available at ualberta.ca/lawnow. Maclean s is a good source for background information and discussion of Canadian constitutional issues. Special programs for using this magazine in the classroom are available. Further information can be obtained from Rogers Publishing, Educational Services, 777 Bay St., 8th Floor, Toronto, Ontario M5W 1A7. Other Resources Newspapers are a valuable source of up-to-date information on constitutional issues. Special programs for class use are available from most of Canada s national daily papers. These programs offer special rates for class sets of papers. The CBC s News in Review educational videos examine major news events. The series is available from CBC Educational Sales, Box 500 Station A, Toronto, Ontario, M5W 1E6 or from newsinreview. The National Film Board has a number of films covering the history and background of Canada s Constitution and government. The following videos are of particular interest: The Champions a three-part documentary series that examines the roles played by René Lévesque and Pierre Elliott Trudeau in shaping Canada s constitutional history Never-Endum Referendum looks at the Quebec Referendum of 1995 The Road to Patriation looks at the patriation of the Constitution in 1982 and examines the motives of some of the main participants in this event Our Constitution: The Law of the Land covers the workings of Canada s Constitution and includes segments on how constitutional laws are made and the development of Canada s independence from Britain 92 UNIT 1 Our Legal Heritage