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date: 26 May 2019

(p. 1125) Index

(p. 1125) Index

Aboriginal Peoples of Canada. See also Aboriginal Rights; Indigenous Peoples and Lands
customary law, 19, 590, 592n
definition of, 15
Indian
non-status, 372, 375, 378n, 382n
Inuit, 15–16
Métis, 17–18
ancestry, 367–369, 378
ethnogenesis of, 369
Powley decision, 370, 372. See also Table of Cases
identity, 379–381
Daniels decision, 379n, 383. See also Table of Cases
as “Indians” within s. 91(24) of the Constitution Act, 1982, 373–378
participation
at constitutional conferences, 265
in federal elections, 932
in land use planning and water management initiatives, 313, 375n5
reconciliation, with, 7, 289–299, 320, 326, 332–333, 337–346, 365, 373
rights of. See Aboriginal Rights
Aboriginal Rights
Aboriginal rights, 31, 33, 282–284, 331–334, 337–343
Aboriginal title, 325–331, 334–344
administrative tribunal, participation in, 249
constitutional protection of, 2, 28, 197–198
and consultation. See Duty to Consult
extinguishment of, 312–313, 320
health. See Health
honour of the Crown, 319–320, 352–354, 361
hunting and fishing, 28–29
language, 14, 17n, 19, 26, 31
Métis rights, 368–377. See also Aboriginal Peoples of Canada
provincial laws, effect of, 368n4, 932
recognition of, 38, 288, 312, 331–334
self-government, 36, 248, 283–299
statutory protection of, 319–320
treaty rights, 320, 345–346, 349
Administration of Justice
corrections. See Criminal Law
courts. See Courts
definition, 232, 237, 475
judges. See Judges
legal profession, 226n, 938
prosecutions. See Criminal Law
Administrative Tribunals
Charter applicable to. See Charter of Rights
constitutional questions, power to decide, 203–204, 242
court of competent jurisdiction, 234, 240
fair procedures, 240–244
judicial independence, 241, 243, 246–247
language in. See Language
and their powers, 204, 240
Adoption of Laws
conflict of laws, 402, 417–418, 424
English law. See English Law in Canada
French law. See French Law in Canada
Indian Act, 132n, 248, 372
Statute binding Crown, 113, 115, 120, 155
Age. See Equality
Amendment of Constitution
Aboriginal participation in. See Aboriginal Peoples of Canada
and Charter of Rights. See Charter of Rights
general amending procedure, 215, 271, 1011
(p. 1126) Governor General
proclamation by, 107, 134, 160
history of Part V, 258–259, 268, 273
Indigenous involvement, affecting, 265–266
judicial adaptation. See Interpretation of Constitution
ministers, role of, 256–257, 265. See also Minister
patriation. See Patriation
provinces, role of, 256–258
Quebec, 263–264
Queen, in relation to, 255
regional veto formula, 263
secession. See Secession
Senate, in relation to, 258. See also Senate
Supreme Court of Canada, in relation to, 258, 264
time limit on ratification, 262
unanimity procedure, 259
Appeal. See Courts
Application for Judicial Review. See Remedies
Arbitrariness. See Fundamental Justice
Arbitrary Detention or Imprisonment
arrest. See Arrest
Canadian Bill of Rights, under, 194
Charter, under, 800, 804
“cruel and unusual” from Eighth Amendment compared, 855, 906n
detention. See Detention
in French Canada, 59
illegal, 801
procedural standards, 801
Armed Forces
civil power deployments, application to, 162–163
Court Martial Appeals Court, 232
legislative power over, 161
procedures impacting, 163
Arrest
counsel, right to, 801
definition, 800
detention. See Detention
police powers, 800, 804–807
search and seizure, incident to, 800–801
warrant, requirement of, 1059
Attorney General
appointment of judges, role in, 220
intervention in constitutional cases, 191, 465, 482, 854, 1068
Minister of Justice role, 220, 489, 707
Secession Reference, regarding, 1019–1020. See also Secession
standing in constitutional cases, 649
Australia
amendment of constitution, 147
ancillary power, 576n2
cooperative federalism, 394, 596
criminal law, 476
High Court of Australia, 288
judicial review, 633, 1076
peace, order, and good government, in, 468, 939
residuary power, 703
spending power, 435
Bias
colonial era, 20–22, 31, 371
judicial rulings, 571, 696, 1099
Bill of Rights
Canadian Bill of Rights. See Canadian Bill of Rights
Canadian Charter of Rights and Freedoms. See Charter of Rights
Constitution Act, 1867. See Constitution Act, 1867
International Covenant on Civil and Political Rights, 316, 845, 886
Magna Carta, 67, 114
Quebec Charter of Rights and Freedoms. See Provinces: Quebec: Charter of Rights and Freedoms
Blackstone, William, 68, 74, 108, 199
British Empire
Canada within. See Canada
colony within. See Colony
Dominions within. See Dominion
treaty-making, 135, 309
Byng, Governor General, 140–141
(p. 1127) Cabinet
appointment, 174, 177
Constitution does not mention, 153
described, 153, 161, 177
documents, preserving of, 1034
government. See Responsible Government
party discipline, 174
Privy Council (Canada), part of, 1041
statutes do not mention, 153
voting by members, 173, 180
Canada
Confederation. See Confederation
Constitution of Canada. See Constitution of Canada
Dominion. See Dominion
federalism. See Federalism
independence, evolution towards, 133–136
Parliament. See Federal Parliament
provinces. See Provinces
Union. See Confederation
Canada Act 1982
history, 898
incorporation of Constitution Act, 1982, 233
patriation, as. See Patriation
Canadian Bill of Rights
constitutional status, 236, 623, 868
effect, 236, 674
equality before the law, 707, 817n, 846
fundamental justice. See Fundamental Justice
history, 622
Canadian Human Rights Commission
powers of, 239
Canadian Parliament. See Federal Parliament
Cartier, G.-E., 87, 88, 94
Charlottetown Accord, 1992, 265–266, 274, 286, 1017
Charter of Rights. See also Constitution Act, 1982
amendment of, 258–260, 1078
application to
Aboriginal self-government, 983
administrative bodies, 241n
amending procedures, 846, 899, 952, 1055
citizen, 639n
common law, 517, 1082
discretion, 241n
federal and provincial governments, 623, 851, 764
federal and provincial laws, 795, 1095
justice system and administration, 781
municipalities, 722
private action, 722, 764, 781, 790, 970
statutory interpretation, 869, 878
burden of proof of justification. See Limitation Clause (s. 1)
Charter values, 583, 626, 667, 980
conflict between rights, 740, 765
constitutional status, 233
enforcement
by administrative tribunals, 203–204, 239, 241
by courts, 692, 678–679, 234–235, 244, 247
by legislatures, 692, 678–679
fundamental justice clause. See Fundamental Justice
interpretation. See Interpretation of Constitution
Interpretation Acts, application to, 869
limitation clause (s. 1). See Limitation Clause (s. 1)
national unity, effect on, 130–131, 325, 581, 1005
notwithstanding clause. See Notwithstanding Clause
political questions/challenges
critical constitutional theory, 990–994
preamble, 235, 269n, 771, 1031
property not protected. See also Property
litigation
advisory opinions, 647–655
direct standing. See Standing
intervention, 644–647
Court Challenges Program, 640. See also Trudeau, Justin
public interest standing. See Standing
remedy for breach, 796, 802. See also Remedy
retroactive effect, 698–699
scope of rights
general, 777–778
liberal legalism limits, 788–790
positive/negative rights, 790–791
public/private rights, 791–793
(p. 1128) Child
best interests of, 583–585
welfare, 585, 852
Citizen
access to justice rights of, 234
language of education, rights to, 562, 1078
mobility rights of, 1061, 1078
voting rights of, 1061, 1078
Civil Law
history in Canada, 587–591
Supreme Court of Canada representation, 212
Coke, C. J., 67, 119
Colony
definition, 1011
autonomy, evolution to, 59, 130–136
prerogative power over, 144, 155–156
Commercial Law
bankruptcy and insolvency
concurrent powers over, 521–522
legislation, 521–522
power over, 518, 522
property and civil rights, relation to, 522
corporate law, 524–526
securities law, 526–530
Common Law
Canadian Bill of Rights, application to. See Canadian Bill of Rights
Charter of Rights, application to. See Charter of Rights
civil liberties, protected by, 801
Crown. See Crown
definition, 587–589
paramountcy, 429–430
prerogative power. See Prerogative Power
reception. See English Law in Canada
uniformity, 578, 582
Commonwealth
British empire, evolution from, 59–64
colony. See Colony
constitutional monarchy, Canada as, 129, 1040
Dominion. See Dominion
member of, 5
migration of constitutional ideas between members, 1076–1077
Comparative Constitutional Law, 1, 5–7, 327n, 393, 592, 633–34, 702–703, 770n, 844, 886, 1075–1100
Competitive Federalism, 93
Concurrent Powers
Administrative agreements, 270
description, 422, 428
double aspect. See Double Aspect Doctrine
natural resources, 428, 540
penal law, 489
Quebec, mix of jurisdiction over policy areas, 1086
Confederation. See also Canada
definition, 944
history, 603, 942, 1011
public property, 329n
Constitution Act, 1867
Ambivalence
democracy, in relation to, 93, 94, 95
federalism, in relation to, 93
minority rights, in relation to, 96
gaps in, 268, 415, 417, 467
history, 83
preamble, 268
Statute of Westminster, exemption from, 255, 895, 945, 1011
supremacy, 1031
Constitution Act, 1871, 558n
Constitution Act, 1982
Canada Act 1982, incorporation in, 105n3
Canadian Charter of Rights and Freedoms. See Charter of Rights
history, 193–195, 258–260, 898
Quebec unwilling to ratify, 99, 258
“new definition of Canada,” 698
Patriation, as. See Patriation
as supreme law of Canada, 1055
Constitution Amendment Proclamation, 1983, 260, 982n
Constitution of Canada
Constitution Act, 1867. See Constitution Act, 1867
(p. 1129) Constitution Act, 1982. See Constitution Act, 1982
culture, surrounding the, 915–918
contemporary, 931–933
genealogical approach, 918–931
entrenchment, 326, 642, 759
Interpretation. See Interpretation of Constitution
methodology, of the, 869–878, 888
patriation. See Patriation
reform, of the, 182, 253–273, 285–287, 1016, 1055
supremacy, of the, 92n1, 193–194
theory, role of, 952–963
unwritten rules, 100–111, 232–236
sources of, 957–958
Constitutional Act, 1791, 132, 755
Constitutional Court
proposal for, 1098n–1099
Convention
constitutional status, 611, 896–897
definition, 137, 905
enforceability, 136–137, 153, 443, 896
origin, 2, 110, 1033
responsible government, 154, 161. See also Responsible Government
writing, 159–160
Cooperative Federalism
constitutional principle, as, 392
description, 394–395, 405
dualism of, 395–398
effects of, 406–411
judicial discourse on, 402
Corrections. See Criminal Law
Counsel, Right to, 801, 805
Court of Competent Jurisdiction. See also Remedy
Ontario Review Board, as a, 240
Courts. See also Administration of Justice; Judges
access to, 234. See also Expression
establishment of, 232, 234, 577
judges. See Judges
jury, 59, 63, 72, 75, 77, 96
provincial courts, 577, 651, 1048
superior courts, 197, 220, 222, 577
Supreme Court of Canada. See Supreme Court of Canada
Criminal Law
aspect doctrine. See Double Aspect
death penalty. See Death Penalty
doctor-assisted suicide, 799
fair trial. See Fair Hearing
and morality, 479, 486
no panacea, 813. See also Evidence
prostitution, 643, 680–681, 786, 799
sentencing, 811–813
substantive law as, 797–799
victim’s rights, 809–811
welcome balance against law-and-order expediency, 804
Critical Theory, 789n, 858n, 989–1006
Charter of Rights and, 787
feminism and, 764, 966, 981n. See also Feminism
legal pluralism and, 928n, 938n
liberalism and, 778
religion and, 765, 772
Crown. See also Canada; Provinces; Queen
agent, 135–136, 154
common law origin, 154
definition, 129–131
immunity, 159, 401
indivisible, as, 603
legislative power over, 55, 108, 941
mandamus, immunity, 116
prerogative power. See Prerogative Power
property, 155, 328, 328, 342
special powers and privileges, 137–142
spend money, may not, 440–442
succession to the throne. See Queen
and taxation, 454, 930, 941
tortious liability, 117, 640
Cruel and Unusual Punishment
language around, purpose, 907–908
prohibition against, 812, 976
Culture
Charlottetown Accord proposal. See Charlottetown Accord
education. See Education
language. See language
religion. See Religion
(p. 1130) Damages
Charter breach, for, 688–689, 692–693
justification of, 666–669, 670–671, 688
Dangerous Offenders, 812
Deafness, 851. See also Equality
Death Penalty
Canadian support for, 812
violation of section 12, as, 813
Voltaire perspective on, 54
Declaratory Power, 408, 653
De Smith, S. A., 631
Defamation. See Expression
Delays
charge, in laying, 693
Charter (11b) description, 808
Charter remedies, in delivery, 234, 691, 702
declaration of invalidity. See Remedy
Effective transfer of lands to Indigenous groups, in the, 320, 369
trial, to, 234, 685
Democratic Rights. See Elections
Denominational Schools. See Education
Detention
arrest. See Arrest
defined, 800
investigative
detention stops, 801
reasons for, right to counsel, 193–194, 801
Devolution, 462–463, 606
Dialogue Theory
definition, 1056–1057
Charter, application to, 1058–1060
criticisms, 1060–1062
interpretation of, 1062–1065
origin of, 1054–1056
Dicey, A. V.
on rule of law, 115–118
on sovereignty, 190–195, 292, 945, 960
on United States Constitution, 106–107, 110–111, 121
Dickson, Chief Justice Brian, 193, 234, 401, 429, 538
Disallowance, 90, 92, 134, 193
Discrimination. See Equality
Distinct Society. See Quebec
Disproportionality. See Fundamental Justice
Division of Powers. See also Federalism
ancillary powers doctrine, 423. See also Pith and Substance
classes of subjects, 159, 396
double aspect doctrine. See Double Aspect
exclusive powers. See Exclusive Powers
executive matches legislative, 445
federal paramountcy doctrine, 428–431. See also Paramountcy
incidental effects rule, 423–424
interjurisdictional immunity doctrine, 425–428
interpretation of the, 417–419. See also Interpretation of Constitution
pluralism, arising from the, 590
subsidiarity, 424–425
Divorce. See also Marriage
history in Canada of, 579
power over, 578–579, 585
procedure, 580–581
Quebec in, 579, 589
recognition of, 579
Dixon, Sir Owen, 939–940
Dominion. See also Canada
abandonment of word, 895, 943, 948
colony, evolution from, 26, 113, 892
definition of, 135, 944
member of Commonwealth, evolution to, 135, 415, 960
Newfoundland as, 535
Double Aspect Doctrine, 396, 402, 420, 422–423
Due process. See also Fundamental Justice
right to, 235, 847, 1036, 1078
Duplication of Laws. See Double Aspect; Paramountcy
Duty to Consult (section 35). See also Aboriginal Rights; Indigenous Peoples and Lands; International Law
administrative law dimensions and, 361–364
environmental assessment process, 363
(p. 1131) boundaries of the, 356–361, 363, 365
duty to negotiate, 361
complexities regarding, 351–52
critical takes on the, 353–354, 360
emerging jurisprudence on the Crown’s duty to, 319, 349, 356–359
since 2004, 349, 351, 357–359
future prospects, of the, 364–365
and honour of the Crown, 352
international norms, developing on the, 351, 354–355
key parameters of the doctrine
triggering of, 147, 350, 357, 359
and legislative proposals, 198, 357–358
modern treaties and, 360–361
origins of the duty, 349, 351
duty on the Crown, 360
proactive, 349–350
provincial, 360
reconciliation and, 353–354, 365
regarding changes to monarchy, 147
resource industry, effect on, 350
third parties, 360, 363
treaties, concerning, 319
Durham, Lord, 111, 132–133, 922
Dworkin, Ronald
anti-positivism and, 957, 959
on fundamental rights, 665
interpretive theory, 959–960
Education
Aboriginal access to, 314
amendments relating to. See Amendment of Constitution
asymmetry in, 554, 558
Charter, application to, 627, 700, 767, 1100
denominational school rights, 562, 569
Manitoba school question, 562–563
minority language educational rights, 554, 562–571
power over, 434, 437
protected rights and privileges, 556–557
religious school rights, 554, 627, 756
Elections
campaign finance, 727–729
first-past-the-post, 725
five-year terms, 721
opinion polls, 730
political parties, 726–727
power over, 718–719
redistricting, 725–726
referendum. See Referendum
regulation, 718, 733–734
residence requirement, 721
voting, 719–723
Emergencies Act, the, 161–162
Employment. See Labour Relations
England. See United Kingdom
English Language. See Language
English Law in Canada
history of, 73, 113, 116
Environment
assessment of, 313, 363, 499, 501
climate change mitigation in Canada, 505–508
Constitutional litigation, 494, 500, 508
inherent jurisdiction of Indigenous peoples, 494, 501–502. See also Indigenous Peoples and Lands
Kashechewan First Nation water crisis, 502–508
modern treaty, 282, 320, 365. See also Treaties
pollution, 497, 510, 513
power over, 541–544, 551
sources of federal authority, 541–542
sources of provincial authority, 545
Equality
“justified discrimination,” 829–839
age, 557
analogous grounds, 582, 749, 817–818, 850
child’s rights. See Child
citizenship, 1089, 1094–1095
deafness, 851
description of law, 1059
disability, 826
gender. See sex
human dignity, 820–821
Indigenous Peoples. See Aboriginal rights
language, 1094
limitations on, 699, 983
marital status, 582–583, 580
normative mismatch, 829
(p. 1132) socio-economic rights, 843–845, 968, 985
homelessness, 785
positive obligations, 851–854
race, 826
reasonable accommodation, 1100
religion, 760
residence, 850, 1094, 1096
same-sex marriage. See Marriage
section 15, 816–817, 859, 982
“the most difficult right,” 815
and section 1, 830–840
unique features of, 824–827
sexual orientation, 646, 967
social goals of, 665, 816
substantive, 815–819, 823, 826
under-inclusive law, 383, 850
Evidence
burden of proof, 430
criminal cases. See Criminal Law
exclusionary discretion, 674, 687, 693, 796, 802–813
no panacea, 803, 813. See also Criminal Law
silence, right to. See Fundamental Justice
witness, 644n
Exclusive Powers, 401, 405
Executive Council, 66, 107, 111
Executive Federalism, 266, 270, 274
Executive Power. See also Crown
cabinet. See Cabinet
extraterritorial capacity, 4, 164–165, 948–950
Governor General. See Governor General
judicial power, relation to, 941
legislative power, relation to, 257, 267, 405, 416
Lieutenant Governor. See Lieutenant Governor
Premier. See Premier
prerogative power. See Prerogative Power
Prime Minister. See Prime Minister
Queen. See Queen
Expression
Charter section 2(d), 746–752
collective bargaining, 631, 747–750
commercial, 669, 739
defamation, 742
definition, 737–741
democracy and, 846
description of section 2(b), 737–741
freedom of association, 611, 629, 632, 738, 747
limits on. See Limitation Clause
picketing, 234, 738, 744–745
political speech, 739
pornography, 676
powers over, 469n, 730
press, 55, 58, 63, 737n2
protest and dissent, 750
religion. See Religion
right to strike, 750
threats of violence, 743n6
Extraterritorial competence, 948–950, 961
Facts. See Evidence
Fair Hearing
administrative tribunal. See Administrative Tribunal
Charter of Rights, s. 11(d), under, 233, 235, 685–689
due process. See Due Process
fundamental justice. See Fundamental Justice
Family Law
division of powers in, 576–578. See also Division of Powers
divorce. See Divorce
jurisdiction of courts, 578–581, 585–587
legal pluralism in, 587–591
marriage. See Marriage
power over, 581–584
property in, 583, 585–590
same-sex relationships. See Marriage
Federal Jurisdiction, 467, 469, 495–499
Federal Parliament
composition, 173, 177
concurrent powers. See Concurrent Powers
constitutional amendment, role in. See Amendment of Constitution
Crown, power to bind, 158
definition of Parliament, 173
delegation of power, 190
dissolution, 140–141
(p. 1133) elections. See Elections
exclusive powers. See Exclusive Powers
future of, 205–206
government bills, 134, 155–156
Governor General. See Governor General
House of Commons. See House of Commons
imperial statutes, power over, 949, 1011
powers and privileges, 193–195
Prime Minister. See Prime Minister
private bills, 651n
private members’ bills, 161, 177, 579
prorogation, 137, 178–180
reform, 178
royal assent. See Royal Assent
section 96, whether bound by, 137, 220, 577
senate. See Senate
treaty-making (international). See also Treaties
implementation, 317, 596, 606–612
making, role in, 601–603
Federalism
“administrative” federalism, 395–396
ambivalence embedded in, 93
as constitutional principle, 88, 99, 194, 393, 404, 406–411, 415–416, 418, 551, 939, 953, 955, 962, 1009, 1015, 1020–1022, 1025
asymmetry, 271, 393, 416, 425, 431, 554, 558, 561, 571, 1089
Australia, 394, 435, 476, 576, 577, 579, 596, 1076
Charter of Rights and, 481, 483–484, 566, 695, 697, 758
citizenship and, 1025–1026
climate federalism, 506n
comity and, 402
competitive federalism. See Competitive Federalism
compound monarchy and, 133
Constitution. See Constitution
constitutionalism and, 553, 555, 558, 561, 572
cooperative federalism. See cooperative federalism
definition and conceptions of, 89, 133, 393–399, 412
diversity, 113, 583, 767, 917, 1075
evolution of, 254, 262, 265, 272, 392, 400–413, 571, 947, 1014, 1021
“executive” federalism, 265–266, 270, 274, 395n
feminism and, 966–967, 969, 973. See also Feminism
Imperial interest and, 948, 961
Indigenous governance as, 289–290
living tree and, 962
plurinational federalism, 113, 1077, 1085–1100
reasons for, 3, 93, 112, 947
treaty problems. See Treaties
United States, 113, 435, 476, 942, 947
watertight compartments conception, 427, 439, 602
Feminism
Charter of Rights and, 764, 789n, 965–986
critical theory and, 764
liberalism and, 992
Razack, Sherene, 591, 984
French language. See Language
French Law in Canada
civil law. See Civil Law
and the Charter of the French Language, 1041
history of, 54–57, 65–66, 73
Fulton Formula, 256–257, 1013
Fundamental Justice
absolute liability, 688, 901–902
arbitrariness, 799, 812, 852, 1003
Canadian Bill of Rights, s. 2(e), under, 622–623
Charter, s. 7, under, 632, 649, 778–781
confessions, 804
counsel, right to. See Counsel, Right to
definition, 779, 793
disproportionality, 799
due process. See Due Process
extradition, 784
limits under s. 1, 660, 664–666, 668
mens rea requirement, 797–798
overbreadth, 799, 813
silence, right to, 804–807
vagueness, 652, 743n7
(p. 1134) Gambling, Regulation of, 288
Government
cabinet. See Cabinet
coalition. See Responsible Government
Crown. See Crown
dialogue within, 635
minority. See Responsible Government
municipalities. See Municipalities
province, of. See Provincial Government
responsible government. See Responsible Government
Government of Canada
Charter applicable to. See Charter of Rights
constitutional amendment in relation to. See Amendment of Constitution
Governor General
appointment, 134
bills, recommends, 134
conventions limit powers, 135
delegation to
by Queen, 134
judges, appoints, 109, 217
King-Byng affair, 139
Lieutenant Governors, appoints, 112
ministers, appoints. See Minister
Parliament
dissolves, 139–140, 919–920
prorogues, 139
in 2008, 141–142, 178
in 2009, 179
summons, 48, 137, 144, 159
prerogative powers, 160, 137
Prime Minister
appoints, 137, 159
dismisses, 137, 145, 159
reserve powers, 138–143
responsible government. See Responsible Government
royal assent to statutes. See Royal Assent
senators, appoints, 109, 160, 182
statutory powers, 137
speech from the throne, 131, 173
Great Britain. See United Kingdom
Habeas Corpus. See Remedy; Standing
Haldane, Viscount, 112, 478–479
Health
Aboriginal peoples, for, 459, 461, 463, 471–472
Canada Health Act, 456–458
drugs, 452, 458, 464, 470–471
federal power over, 450–451, 452–456
hospitals, power over, 451
medicare, 450–454, 456
“passive privatization,” 457
physician-assisted dying, 646, 682, 702, 779, 787
provincial power over, 91, 459, 451–452
shared-cost programs, 434
system governance, 471
waiting times, 853, 999
Holmes, Oliver Wendell, 623
Homosexuality, prohibition of, 765
House of Commons. See also Federal Parliament
debates on CAF deployments, 162. See also Armed Forces
dissolution. See Federal Parliament
overview, 68, 94–95, 173
representation by population, 259n
women, in the, 177
vote, right to. See Elections
House of Lords, 95, 107, 109, 157, 199, 893, 943–944
Immigration
Canada, a country of, 3, 7, 86
immigrants’ rights, 554, 563, 567, 626, 832, 986. See also Health; Language
Immigration and Refugee Protection Act, 609, 881n
Meech Lake proposal and, 260n
powers over, 92n, 428–429
Quebec and, 270, 1016
and section 7 rights, 784. See also Charter of Rights
security certificate process, 679
Imperial Conference of 1926, 133–136
(p. 1135) Indigenous Peoples and Lands
Aboriginal title, 248, 282, 284–285, 288, 292, 306, 311–313, 325–346, 352, 355, 368, 502, 514, 647, 1076
colonialism, 914, 918, 927–931
residential schools, and the establishment of, 3, 282, 374–375, 379n–380, 460, 756
Confederation, 97, 132, 305, 1012
constitutional reform, 262n, 285–286, 1017, 1024
diversity, 14, 22, 26
duty to consult and free, prior, and informed consent (FPIC), 198, 319, 349–365. See also Duty to Consult
genealogies, 13–38
Impact Benefit Agreements, and, 314, 350, 360. See also Natural Resources
Indian Act, 284
Indigenous legal systems, 2
lands reserved for Indians, 132, 496
oral history, 310, 319
power over, 340
reconciliation, 7, 248–249, 283, 289–291, 294, 298–299, 305, 320, 325–346, 349, 353–354, 364–365, 369, 373–374, 376–377, 381, 460
Truth and Reconciliation Commission, 3, 282n, 377, 380
rights. See Aboriginal Rights
s. 35 rights, 287–299, 320, 325–326
self-government, 20, 38, 282, 284, 285, 287, 314
sovereignty, 97–100, 282–299, 308
treaties with, 25, 28, 30, 31, 305–321
vote, right to, 720n
Inoperative Law, 429, 485, 520, 526
Interjurisdictional Immunity Doctrine. See Division of Powers
Interlegality, 867–888
International Covenant on Civil and Political Rights
article 27, 316
limitations clauses, 624
International Law
constitutional interpretation and, 622, 634, 848
as customary, 610, 867, 884, 971
human rights, on, 885–887
international normativity operationalization, 888
international/national divide, 878–888
norms on consultation and consent, 354–355. See also Indigenous Peoples and Lands
self-determination under, 293–295, 1009, 1018–1019. See also Secession
treaty. See Treaties
Interpretation of Constitution
Driedger’s modern principle, 201, 871–872, 874–878, 883
English-French discrepancies, 626
external aids, 622, 633–634
feminist theory, 764, 966–975. See also Feminism
interlegality, 867, 878–880, 888
internal aids, 626–627
interpretative methodology, 875–880, 888
interpretive techniques, 627–633, 653
national context, role of, 622–629
international divide, 878–887
international normativity operationalization, 882–883, 888
originalism, 437n, 891–892n, 905–908
reading down. See Reading Down
reading in. See Reading In
Interprovincial Undertakings, 408, 426, 428, 499, 528, 540
communication, 525n, 526n, 545, 547–548
and labour relations, 426, 525
and provincial legislation, 426, 549. See also Division of Powers; Interjurisdictional immunity
transportation, 525n, 526n, 545–548
pipelines, 536, 545–546, 550
railways, 545
Invalid Law. See Inoperative Law
(p. 1136) Jehovah’s Witnesses, 758
Judges. See also Administration of Justice; Courts; Judicial Power; Supreme Court of Canada
appointment, 90, 109, 112, 137, 174, 197, 220–228
bilingual, 65–66, 74
in Britain, 112–113
independence. See Judicial Independence
judicial councils, 223
legislative power over, 190, 194
norms, 195
qualifications, 216, 222
salary, 246
supernumerary status, 222
Judicial Branch. See Judicial Power
Judicial Independence, 196, 222, 227, 246, 249
Act of Settlement, as evidenced by, 110
and administrative tribunals. See Administrative Tribunals
individual and institutional dimensions of, 1046–1048
as unwritten constitutional principle, 2, 122, 194, 232–234, 241, 269n, 444, 652, 939, 962, 1040, 1043, 1044–1049
Judicial Power. See also Administration of Justice; Courts; Judges
Judiciary. See Courts; Judges; Judicial Power
Justices of the Peace, 66
Justiciability. See Non-justiciable issue
constitutional rights, 167
individual rights, 166
positive rights, 852
prerogative, 166–167
separation of powers, and, 1043
socio-economic rights, 860
La Forest, G. V., 239, 248, 397, 479–481, 534, 540, 542, 548, 685, 784, 820, 886
Labour Relations, 607, 630, 746, 748
foreign relations
treaty-making. See Federal Parliament
Labour Conventions Reference See Table of Cases
modus vivendi, 596–599
Royal Prerogatives. See Prerogative Power, Royal Assent
treaty implementation and, 605–612. See also Treaties
Land. See Property
Language
Aboriginal peoples, of, 14, 16n, 17, 19, 26–27n, 29, 31–32, 318, 767. See also Aboriginal Rights
and Canadian Multiculturalism Act, 557
constitutional amendment in relation to, 259n. See also Amendment of Constitution
courts, in, 66
and diversity, 218, 225. See also Supreme Court of Canada; Pluralism
and the cross-fertilization of family norms across provincial boundaries, 567, 576–577, 589
discrimination on bases of, 564, 816–817. See also Equality
education, of minority groups. See Education
English versus French versions of the Constitution, 62, 875, 878. See also Charter of Rights
legislative power over, 554, 556–557
Manitoba, in. See Provinces
New Brunswick, in. See Provinces
Nunavut, in. See Territories
official languages of Canada, 3, 200, 557, 980
Official Languages Act, 554, 557, 560, 875
Royal Commission on Bilingualism and Biculturalism, 560
Parliament of Canada. See Government of Canada
proceedings, language of, 3
interpretation of section 23, and the, 565–568
(p. 1137) Quebec, in. See Provinces
sign language interpreter, right to, 689, 851
statutory, 156, 200, 242, 430, 609, 932, 1093
Laskin, Chief Justice B., 212, 405, 601, 605, 608, 613
Laws of General Application
immunity from, 548. See also Division of Powers
provincial, in respect of Indigenous rights, 932
League of Nations, 26
Legislative Assembly. See Provincial Legislature
Levesque, Premier R., 1015–1016
L’Heureux-Dubé, Claire, 212, 611, 722, 780, 881
“Liberty,” 783–786
Lieutenant Governor. See also Governor General
amendments relating to. See Amendment of Constitution
appointment, 112, 143, 160, 174, 603
powers, 137, 138, 144–145
relationship with Governor General, 143–144
representative of the Crown, 107, 112, 129, 133, 144–145
reserve powers, 137, 138–139, 144–145
royal assent to statutes. See Royal Assent
s. 90 Constitution Act, 1867, 134
Limitation Clause (s. 1). See also Charter of Rights
application of the, 659
and constitutional construction, 907. See also Living Tree Metaphor
genesis of the, 658–660n
judicial review, 664–670
overview of, 1057–1058
proportionality, 660–664
“Life,” 782–783
Living Tree Metaphor
application of the
B.C. Motor Vehicle Act, to, 901–905, 1044. See also Table of Cases
Big M. Drug Mart, to, 900–901. See also Table of Cases
Edwards (Persons) Case, to the, 892–894, 908. See also Table of Cases
Patriation Reference, to the, 894–898, 905. See also Patriation; Table of Cases
Law Society of Upper Canada v Skapinker, 898–900. See also Table of Cases
constitutional construction, 907–908
in general, 6, 29, 419, 437, 628–629, 780
originalism. See Originalism
Lower Canada
Civil Code of, 587. See also Civil Law
and the Durham Report, 922n. See also Durham, Lord
creation of, 132
in general, 108, 116, 942
protestant minority in, 576
MacDonald, Sir John A., 88–100, 109, 112, 130, 144, 476, 947
Marriage. See also Family Law
divorce. See Divorce
legal pluralism. See Family Law
same-sex marriage, 484n, 579, 582, 589, 652, 678, 766. See also Living Tree Metaphor
and exclusion from the Old Age Pension Act, 819–820
sexual orientation. See Equality
solemnization, 576, 578, 585, 591
McLachlin, Beverley, CJC, 212, 214, 452, 483, 768, 781, 799, 812, 813, 815, 837, 957–960, 1048
Meech Lake Constitutional Accord
in general, 260n, 265–266, 701, 1099
impact of its failed ratification process, 274, 285–286
reasons for its failure, 1017
Mens Rea. See Fundamental Justice
Minister
appointment, 160
cabinet membership, 110, 11, 133, 1041
duties and roles, 110, 133, 176, 184–185, 198, 396–397, 707, 942–943
member of Parliament, 165n, 174
(p. 1138) Minister of Justice, 218, 221–222, 224, 228, 377n, 707–711, 812. See also Attorney General
Minority Language Educational Rights. See Education
Mobility
Aboriginal right, as a, 22, 339, 381. See also Aboriginal Rights
Charter, relevance to, 625, 980, 1061, 1095
Monarchy. See Crown; Queen
Money Bill. See Governor General
Mulroney, Prime Minister M. Brian, 1016
Multiculturalism, 2, 622, 626–627. See also Language
Municipalities
by-laws and the Criminal Code, 487–488
Charter, application to
religion, with regard to freedoms of, 770
section 7, with regard to, 784–785, 856
consulting with Aboriginal peoples, 165
and electoral statutes, 718, 722, 725
and environmental policy-making, 495, 499–503, 542
provincial power over, 145, 476, 499–500n
Natural Law
18th-century constitutional debates in North America, 63
classic sense of, 958
Cree constitutionalism, 29
Dworkin, Ronald, and, 957, 959
Finnis, John, 957n
French laws and, 54
judges and, 958
legal positivism and, 959
McLachlin CJC and, 957, 959
Natural Law and Natural Rights, 957n
state and, 958
theory of, 957
Native Rights. See Aboriginal Rights
Natural Justice, Principle of, 241, 243, 248, 904
Natural Resources
Aboriginal rights to. See Aboriginal Rights
amendment (section 92A), 540–541. See also Amendment of Constitution
environment. See Environment
extraction, of, 314
by Indigenous communities, 312, 314, 318, 502. See also Indigenous Peoples and Lands
fisheries, 198
forestry, 198, 328, 344–346, 499
fossil fuel sector, 508
jurisdiction over, 428–429. See also Division of Powers
federal, 544–545, 551
provincial differences, 535–537
evolution of, 537–541
oil and gas, 506–507, 535–539n, 544, 548, 506
pipeline, 536–537, 544–546, 548–550
and the Duty to Consult, 359, 363. See also Duty to Consult
profit versus environment, 544–551. See also Environment
New France, 47–57, 66, 74–75, 418n, 921
New Zealand
Commonwealth constitutional connections, 2, 5, 6, 468
electoral reform, 1084
external aid to interpretation, 633, 677
judicial rulings, 703, 1085
Non-justiciable issue, 166. See also Justiciability
administrative agreements, 270
discretionary honours, 166
executive branch conduct, 168
positive measures and rights, 852, 857
Prerogative, 166
Prime Minister’s conduct, 166
principles, 1022
right to housing, 857–858
s. 36, 443
socio-economic rights, 791, 860
Notwithstanding Clause (s. 33). See also Charter of Rights
controversy surrounding the, 695–696, 700
description, 190, 635, 897–898
first use of the, 698
five-year limit, 581
origin, 695–698
outside of Canada, influence of, 702–704
potential use of, 701–702
(p. 1139) retroactive effect, 698
use of
federally and provincially, 695, 897n, 898n
risk aversion to the, 581, 699–700, 704–710
Official Languages. See Language
Overbroad law, 681–683, 686, 798
Override Power (s. 33). See Charter of Rights
Paramountcy, 424, 426, 428–469, 520, 526, 549–550, 580. See also Division of Powers
Centralizing tendency of, 427
Charter and, 1067
Cooperative federalism, and, 405, 420–421
Bank of Montreal v Hall, and, 430. See also Table of Cases
Current doctrine of, 430
Importance after Canadian Western Bank, 401n. See also Table of Cases
Inoperability, 485, 580
Modern treaties, and, 320
Multiple Access test, and, 429. See also Table of Cases
Narrow interpretation of, 401, 429, 430
Operational conflict branch, 429
Residual power and, 497
Section 92A and, 540
Subsidiarity and, 425
Threat to provincial autonomy, 429, 431
Uncertainty regarding, 430
Undermining federal purpose branch, 430
Parliamentary Government. See Responsible Government
Parliamentary Privilege, 2, 109, 1040, 1043
Passports, issuance of, 159, 167
Patriation, 408, 605, 653, 658, 894–898. See also Amendment of Constitution
Peace, Order, and Good Government Power, 894, 920, 947, 1042
“carefully described,” 469
courts’ reluctance to use, 469, 527, 542
derives from opening words of s. 91, 520
emergency branch, 497
environment, 496n, 497–498, 508, 541, 544
health, 468–472
incorporation of companies power by federal Parliament, 525
national concern branch, 468–469, 480n, 497, 508, 525, 541, 544
original wording, 90n
political reluctance to use, 450, 470
open-ended, 417
residual power, 111, 496n, 520, 948n
surveillance and reporting of infectious diseases, 467
test, 483n, 497
Penal Law. See Criminal Law
Pith and Substance, 401, 421–425, 1076
Pluralism, 38, 399n, 575, 587, 591, 633, 913–934
Diversity and, 578
Empire and, 113
Federalism and, 113, 393
Indigenous peoples and, 26, 326, 590
Religion and, 757
Police. See also Criminal Law
arrest. See Arrest
Royal Canadian Mounted Police, 163
Political parties
coalitions between, 88, 142, 179
regulation, 719, 724, 726–727
of campaign finance, 727–729, 1063
of the dissemination of information prior to an election, 729–730
opposition, 139, 141, 179, 929
Pornography. See Expression
Positivism, 410, 957, 958
Anti-positivism and, 957, 959
Constitution and, 1019, 1022, 1025
Green, Leslie, 957
Hart, HLA, 946
Raz, Joseph, 669, 957
(p. 1140) Preamble
BNA Act imports, of, 106, 940
Constitution Act, 1867, of. See Constitution Act, 1867
Constitution Act, 1982, of. See Constitution Act, 1982
non-binding nature, of, 953
Royal Proclamation, 1763, of, 309
Statute of Westminster, 1931, 945
Pre-Confederation Laws, 33, 95, 110, 578
Premier. See also Prime Minister
and Canadian federalism, 144
who cannot command a majority, 138
dismissal of, 145
dissolution, power to advise, 138
on the “night of long knives,” 1016, 1067
on parliamentary supremacy, 697, 700n
resignation of, 145
request to deploy the Canadian Armed Forces (CAF), 162
Prerogative Power
altering a, 160
Crown’s power, 137–138, 143–144, 153
as codified in the Criminal Code, 159
of defense, 161–164
displacing a, 155–158
over foreign affairs, 164–165
immunity from statute, 159
international affairs. See Treaties
Judicial Committee of Privy Council, 191–192, 211, 400, 406–407, 422, 478, 497
judicial review of, 165–168, 1043–1044
legislative powers, 1041–1042. See also Division of Powers
pardon, 144
responsible government. See Responsible Government
suspending power, 141, 701, 1091
trouble with, 154–155
authorizing unlimited spending power, 440–443. See also Spending Power
Prime Minister
appointment of head of state in republic, role of, 147
appointment of by Governor General, 159
appointment powers, 174–175, 182–184, 188, 217–229
British Prime Minister, 134
Constitution does not mention, 2n
defence powers and, 166
determination of confidence of the House, role regarding, 174
dismissal of, 145
dissolution of Parliament and, 160
executive power and, 111, 131, 138, 173, 238
granting of honours and, 166
Governor General and, 134
Lieutenant Governor and, 143
Parliament
advises dissolution, 137, 166
advises summoning, 137
power of, 131, 174
prerogative powers and, 137, 154, 160
“Prime Minister’s prerogatives,” 160
prorogation of Parliament and, 138, 175, 179
Privy Council Office and, 158
removal or resignation of, 147
responsible government and, 111, 133, 136–138, 154, 943
restraining, 148, 174–175
Privy Council, 158, 160
Property
public. See also Spending Power
federal power over, 436
provincial power over, 91, 112, 116, 118, 418, 450, 498–499, 541
Provinces
Alberta
condition approval by the legislature of any constitutional amendments, 265. See also Amendment of Constitution
creation of, 559
v Hutterian Brethren, 768, 838n. See Table of Cases
Vriend, 851, 1066. See Table of Cases
use of Notwithstanding Clause in, 701. See also Notwithstanding Clause
British Columbia
Aboriginal health self-governance agreement, 462–463. See also Health
(p. 1141) Andrews v Law Society of, 818n, 831, 838n. See also Table of Cases
carbon tax, 506n
condition approval by the legislature of any constitutional amendments, 265. See also Amendment of Constitution
Delgamuukw v, 333. See also Table of Cases
Eldridge v, 818n, 851. See also Table of Cases
First Nations constitutionalism, in, 32–34. See also Aboriginal Rights
Secwepemc, 34–36
Gitksan, 36–38
Haida Gwaii Reconciliation Act, 290–291
legal pluralism in, 590–591. See also Legal Pluralism
modern treaties in, 312
v Imperial Tobacco Canada Ltd See Table of Cases
voter identification rules, and, 721. See also Elections
Manitoba
creation of, 18, 534–535, 558
education in, 563. See also Education
federal spending and, 455. See also Spending Powers
holding of public hearings requirement, 266
Jordan’s Principle, 462. See also Aboriginal Rights
Manitoba Act (1870), 311, 367n, 558, 691, 769
Official Language Act, adoption of, 558. See also Language
Reference re Manitoba Language Rights, 269n, 954–955. See also Language; Table of Cases
New Brunswick
creation of, 87, 89, 942
Elections Act, 723
and French language education, 554, 562–563
and Mikmaq constitutionalism, 18–23
official languages of, 556, 560–561
provincial legislature of, 145
Newfoundland
creation of, 88
judicial divorce in, 579. See also Divorce
and Mikmaq constitutionalism, 18–23
v. N.A.P.E., 670. See also Table of Cases
Newfoundland Act, 260–261
rejection of Quebec Resolutions, 98
(Treasury Board) v Newfoundland and Labrador Association of Public and Private Employees, 833–835. See also Table of Cases
Nova Scotia
creation of, 48, 89, 108
as first British colony to receive responsible government, 133
and French language school facilities, 990. See also Education; Language
Métis in, 369n. See also Aboriginal Peoples of Canada
and Mikmaq constitutionalism, 18–23
Ontario
and Anishinaabe constitutionalism, 23–29
creation of, 85, 109
Dunmore v, 747–749. See also Table of Cases
and French language education, 562–564, 570–572. See also Education, Language
and Haudenosaunee constitutionalism, 23–27
and Kashechewan First Nation Water Crisis. See Environment
languages of the justice system, 556. See also Language
lawyers in, 226n
as location of Supreme Court, 213
Métis Nation of, 378. See also Aboriginal Peoples of Canada
Prince Edward Island
creation of, 535
and Mikmaq constitutionalism, 18–23
rejection of Quebec Resolutions, 98
(p. 1142) Quebec
Charter of Human Rights and Freedoms, 845n, 853, 982n, 999
Charter of the French Language, 897n
creation of, 3, 48
Cree constitutionalism, 29–32
judicial divorce in, 579. See also Divorce
Meech Lake Constitutional Accord. See also Meech Lake Constitutional Accord
and Mikmaq constitutionalism, 18–23
nation, as a, 1097
official language, 554, 556–557, 1097. See also Language
Bill 101, 567, 701
Quebec Act [1774], 50, 62, 76, 112
secession. See Secession
Senators from, 271n. See also Senate
special status, 1091
Supreme Court of Canada, judges from, 185, 212, 217, 236, 1097
Saskatchewan
creation of, 559
electoral boundaries, 725–726. See also Elections
health care (universal coverage) in, 451
Office of the Treaty Commission in, 31–32. See also Indigenous Peoples and Lands
Whatcott v, 742n–743. See also Table of Cases
Public Service, 244, 441, 898n
Employment Act, 164
Reference Re Public Service Employee Relations Act (Alberta), 848, 885–887
Queen. See also Crown
abolition of monarchy, 146–148
amendment in relation to. See Amendment of Constitution
Canada, head of state, 129, 147, 296, 259n, 602
Constitution, references to, 2, 107, 137, 259n, 1042
Commander-in-Chief of the armed forces, 137, 161n
conventions limit powers, 110. See also Responsible Government
definition of Queen, 107, 129
executive power, 2, 107, 137, 152, 605
Governor General
appoints, 134
delegates power to, 107, 129, 134, 892
granting of honours, 166
judiciary and, 107
legislative power and, 97, 107, 1042
letters Patent constituting office of the Governor General, 136, 601n–602
oath to, 744
Privy Council and, 107
responsible government and, 943
royal assent to statutes. See Royal Assent
senators, role in appointment, 160, 174–175, 181–184
succession to throne, 107n, 972
Race. See Equality
Reading down, 676–677, 1064
Reading in, 676–677, 1064, 1066–1067
Reference Power, 651–655, 937–938
Advisory opinions, 213, 937, 1018
Constitutional conventions and, 938
Executive initiation of, 654
Executive role for judiciary, 244
Framing of questions, 654
Living tree and, 868. See also Living Tree Metaphor
Patriation Reference, 408, 952–962, 1018. See also Table of Cases
Political manipulation of, 653–654
Secession Reference, 952–962, 1009–1026, 1042. See also Secession; Table of Cases
United States Supreme Court inability to provide, 1042
Referendum
Alberta rules regarding constitutional amendment and, 265n
(Australian) Republic, 147
Baroness Hale in Jackson case, 200
(p. 1143) British Columbia rules regarding constitutional amendment and, 265n
Charlottetown Accord and, 265, 286, 728
federal referendum legislation and, 722
Quebec referendum legislation and, 722
Charter and, 722
Clarity Act and, 932
collective and individual identify and, 1026
Confederation and, 98
Federal patriation proposal of October 1980 and, 257
Freedom of expression and, 722
Ontario Taxpayer Protection Act and, 201
Pepin-Robarts Report and, 257
Provincial rejection of, 257
Quebec and, 1009
1995, 263, 271, 604, 1018, 1088
Quebec referendum-related legislation, 1026n
Referendum Act, federal, 722
Referendum Act, Quebec, 722, 727
Restriction or prohibition on expenditures, 718n, 728, 1063
Right to vote in, 722
Scotland and, 1026n
Secession Reference and, 956, 1025–1026. See also Secession
Time-limit on negotiations following, 1088
Trethowan case and, 199
Religion
and Canadian constitutional life, 755–758
and the absence of related cases being decided under section 15, 760
equality. See Equality
definition of, 758–764
Freedom of. See Expression
individual versus collective, 766–769
intertwined with language, 562–563
and legislation, scrutinized under section 1, 661
and liberalism, 765, 769–773, 975
public and private, 764–766, 773
role of, in laws defining the institution of marriage, 576, 583, 591
state neutrality, 769–773
test to prove violation of, 762–763
Remedies
and administrative agencies, 240
application for judicial review, 244
court of competent jurisdiction, 234, 240, 796
in criminal versus non-criminal cases, 687–689
damages. See Damages
declaratory versus injunctive relief, 689–692
dialogue between courts and legislatures, 678–679
dismissal of claim, 857
evidence, exclusion of. See Evidence
flexibility with regards to, 858–859, 990–991, 992–996
habeas corpus, 48, 54, 58, 76, 96, 692–693
influencing rights, 685–686, 687–689
injunction, 240, 612, 689
mandamus, 116
quashing conviction, 240, 956n
retroactive, 679
return of seized goods, 522, 800, 1058. See also Search and Seizure
section 24(1) described, 237n, 240
standing. See Standing
stay of proceedings, 685, 693–694
supremacy clause in section 52(1), 675–678
suspended declaration of invalidity, 679–680
under stress, 680–683
reform of, 683–684
trial unreasonable delayed, 234, 685, 702, 808–809
unconstitutional law. See Unconstitutional Law
Repatriation. See Patriation
Responsible Government
cabinet. See Cabinet
Canada, 111, 132, 1040
conventional basis, 111, 132, 153–154, 161, 173, 191, 1040, 1042
description, 941
history, 111, 133, 941–943
separation of powers and, 174, 991, 670, 1039, 1042
Restitution. See Remedy
(p. 1144) Rowell-Sirois Report, 84, 89, 437n
Royal Assent
amendment in relation to. See Amendment of Constitution
of Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 2016, 1053
of British North America Act, 88
of English Bill of Rights of 1688, 623
legislative power over, 138
procedure, 138
royal assent to affect prerogative contrasted, 138
royal recommendation for money bill contrasted, 155
withholding, 90, 155, 192
Royal Canadian Mounted Police. See Police
Royal Proclamation, 1763, 309
Russell, P. H.
nation building, on, 1093
parliamentary sovereignty, on, 189, 193
Scott, F. R., 440–441
Search and Seizure
description, 800, 1058
exemption under the Execution Act, from, 522
exemption under the Indian Act, from, 317
unreasonable, 1058
Secession
amendment, by, 955–956
Reference Re Secession of Quebec [1998] See also Referendum; Quebec; Table of Cases
and constitutionalism, 955
and democracy, 93, 393, 955
and monistic and absolutist identities, 1010–1019
rejection of monistic depictions of, 1019–1026
and federalism, 393, 415, 955
and the “principle of effectivity,” 604–605
and protection of minorities, 561
and unwritten constitutional rule of law, 235–236, 955, 957
unilateral, 264n
“Security of the Person,” 456, 509, 786–788
Senate. See also Federal Parliament
and the 7/50 procedure, 182, 255n, 259–260, 271
abolition of, 95, 264n, 271, 644n
amendments in relation to. See Amendment of Constitution
appointment of senators, 95, 137, 160, 175, 181–184, 260n
eligibility for, 419, 628, 892, 894, 949. See also Living Tree Metaphor-Edwards
establishment of an independent advisory board for the, 273n
from Quebec, 271n, 1016
description of, 95, 943
defeats bill after being passed by the House, 1066
on money bills, 173n
powers, 95, 173, 214, 1042
representation by region, 95n, 109, 259n, 725
Speaker on royal consent, 155–156
suspensive veto, 262n
Separation of Powers, 1031–1049
Sex. See Equality
Sexual Orientation. See Equality
Silence, Right to. See Fundamental Justice
Solemnization of Marriage. See Marriage
South Africa
consideration of international law in, 634
enshrined right to water in constitution, 513
general, 7
suspensions of declarations in, 681, 683
women and constitutional agency, 968, 979
Sovereignty. See Secession
Spending Power, 269–273, 433–445
Charlottetown Accord proposal, 262
description, 269, 433
(p. 1145) division of powers, 269, 433–445. See also Division of Powers
education, 434
health care, 434, 452–456, 459, 471
gift theory and, 440
judicial authority for and against, 438–440, 450, 454
limits on, 435, 440–445
Meech Lake proposal, 260, 1016. See also Meech Lake Constitutional Accord
official language support, 570
support for in text of Constitution, 436–438
Standing
Attorney General. See Attorney General
habeas corpus, 692
requirement of, 640
direct standing, 640
public interest standing, 639, 641–644
Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 643. See also Table of Cases
Chaoulli v Quebec (Attorney General), 642. See also Table of Cases
Statute of Westminster, 1931
amendment of the Canadian constitution and, 255, 653, 895, 945
British North American Act, exemption, 895, 1011
constitutional conventions and, 945, 1012
Constitution of Canada and, 196
extraterritorial competence, 948
Imperial statutes, power to amend or repeal, 948, 1011
independence, 4, 113, 133, 135, 255
interpretation and, 948–949
theories of parliamentary sovereignty and, 113, 946
United Kingdom, limitation of power, 113
Statutory Interpretation. See also Interpretation of Constitution
Charter and, 611, 875, 1064
constitutional interpretation, compared, 868, 870–871, 878–888
Crown
organizing principle of Constitution, 131, 145
Driedger’s modern principle, 871–873, 876
entrenchment, 189–206
international law and. See International Law
manner and form contrasted, 200–202
presumption of constitutionality, 439–440
privative clauses, avoidance by, 197
reading down. See Reading Down
strict construction, 873
traditional English rules of, 877
Succession to the Throne, 107n
Supreme Court of Canada
amendments in relation to. See Amendment of Constitution
appeals to Privy Council, 4, 106, 113, 122, 211, 213, 947n, 948, 951, 961, 1099
appointment of judges, 212–213, 216–220
diversity, 225–227
eligibility, 217, 236
removal of judges, 213
mandatory retirement age, 213
bias, 571, 696, 990
Chief Justice of Canada, 212
composition, 212
amendments to alter, 215
constitutional status, 214–216
decision-making process
reasons justifying a refusal, 652
establishment, 211, 215, 234–236
judicial review, power of, 167–168, 198, 669–670
jurisdiction, 213–214
leave applications, on, 213
specializations within, 224n
split decisions, 214
uniformity of law, 560, 581
Territories
and the constitutional renewal process, 265–266, 286. See also Charlottetown Accord
exercising of delegated jurisdiction, 498n
Northwest Territories
annexed to Canada by royal decree, 559
Devolution Agreement, 498
self-government in, 314. See also Aboriginal Rights and Charter of Rights
(p. 1146) and Numbered Treaties, 310, 312. See also Indigenous Peoples and Lands
Nunavut
as exception to authority to appoint judges to provincial trial courts, 220
and Indigenous participation in administrative agencies, 249. See also Aboriginal Rights
and Inuit law, 16–17n
and Inuktitut as majority language, 568
Land Claims Agreement (1993), 312, 314n
versus provinces (constitutional distinction), 498–499
Rupert’s Land, 132
Yukon Territory
and legislative powers concerning education, 566n
self-government in, 314. See also Aboriginal Rights and Charter of Rights
Transfer Payments, 456–458
Treaties, 595–613
Australia. See Australia
definition, 305, 317
democratic process and, 600
federalism and, 497, 595–613
General Agreement on Tariffs and Trade (GATT), 599, 610
Gérin-Lajoie doctrine, 599, 604
Indigenous peoples and. See Aboriginal Rights
internal law, effect on, 610, 612, 633–634, 780n, 847, 881–884
international human rights law in, 886
Kyoto Protocol, 498n, 597, 600
Letters Patent and, 602, 604
North American Free Trade Agreement (NAFTA), 247–248
Paris Accord, 505–507
power to make, 595
power to withdraw, 600
s. 132 Constitution Act, 1867, 498, 596, 603
steps in treaty process
negotiation, 597
signing, 597
ratification, 597, 600, 604
implementation, 597, 607–609, 612
United States. See United States
Vienna Convention. See Vienna Convention
Treaty of Paris, 3
Trial. See Fair Hearing
Trudeau, Prime Minister P.E.
Bill C-60, 148, 257, 272
on international treaties, 559–660
role in the development of Constitution Act, 1982, 653, 697, 845, 895, 897, 952–953
invocation of War Measures Act, 162
Trudeau, Prime Minister Justin
restoration of Court Challenges Program, 250. See also Charter of Rights
creation of independent advisory boards, 228
creation of gender-equal Cabinet, 175–177
on Senate appointments, 181, 187
Ultra Vires. See also Judicial Review; Unconstitutional Law
judicial review, basis of, 119, 421
commercial law, 528
criminal law, 482, 487–488
environment, 498, 508–509
health care, 465
minority language protection, 559
natural resources, 537
spending power, 438
Uniformity, 560, 576, 578