NCA Canadian Constitutional Law 3 — Questions and Answers
Question 1: The SCC held in Reference re Secession of Quebec [1998] that Canadian constitutional law is underpinned by four unwritten principles. Which of the following is NOT one of those four principles?
- Federalism
- Democracy
- Constitutionalism and the rule of law
- Parliamentary sovereignty (Correct answer)
Correct answer: Parliamentary sovereignty
The four foundational unwritten principles identified in the Secession Reference are: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Parliamentary sovereignty is a British concept that does not hold in Canada where the constitution is supreme.
Question 2: Which amending formula in the Constitution Act, 1982 requires the consent of Parliament plus at least seven provincial legislatures representing at least 50% of the Canadian population?
- The unanimity formula (s. 41)
- The general formula (s. 38) (Correct answer)
- The bilateral formula (s. 43)
- The unilateral federal formula (s. 44)
Correct answer: The general formula (s. 38)
Section 38 establishes the '7/50' general amending formula: resolutions of the Senate and House of Commons, plus at least seven provincial legislative assemblies representing at least 50% of the population. This is the default formula.
Question 3: The doctrine of interjurisdictional immunity (IJI) protects the 'core' of federal jurisdiction from provincial intrusion. After which SCC case was IJI significantly narrowed?
- Reference re Employment Insurance Act (2005)
- Canadian Western Bank v. Alberta [2007] (Correct answer)
- Rothmans, Benson & Hedges Inc. v. Saskatchewan [2005]
- Quebec (AG) v. Lacombe [2010]
Correct answer: Canadian Western Bank v. Alberta [2007]
In Canadian Western Bank v. Alberta [2007] the SCC substantially narrowed IJI, holding that it should be applied with restraint and is not the preferred tool for resolving federal-provincial conflicts, favouring paramountcy analysis instead.
Question 4: Which of the following is a constitutional convention in Canada, as opposed to a legally enforceable rule?
- The Governor General must obtain royal assent for all federal legislation
- The Prime Minister must be a member of the House of Commons (Correct answer)
- Parliament cannot sit for more than five years without an election
- Federal legislation inconsistent with the Constitution Act, 1982 is of no force or effect
Correct answer: The Prime Minister must be a member of the House of Commons
The convention that the Prime Minister must be a member of the House of Commons (or be able to obtain a seat quickly) is a constitutional convention—politically binding but not legally enforceable by courts. The other options reflect legally enforceable constitutional rules.
Question 5: Section 121 of the Constitution Act, 1867 prohibits tariff barriers on goods moving between provinces. The SCC revisited this section in which case, adopting a broader interpretation?
- R v. Comeau [2018] (Correct answer)
- R v. Morgentaler [1988]
- Law Society of BC v. Mangat [2001]
- Haida Nation v. BC [2004]
Correct answer: R v. Comeau [2018]
In R v. Comeau [2018] the SCC affirmed that s. 121 prohibits measures whose primary purpose is to restrict interprovincial trade, but held that New Brunswick's liquor regulations were not a tariff barrier and were valid. The case clarified the s. 121 framework.
Question 6: Which section of the Constitution Act, 1982 guarantees the rights of Canada's Aboriginal peoples, including rights recognized by the Royal Proclamation of 1763?
- Section 25
- Section 35 (Correct answer)
- Section 15
- Section 7
Correct answer: Section 35
Section 35 of the Constitution Act, 1982 recognizes and affirms existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. Section 25 protects those rights from being abrogated by the Charter itself, but s. 35 is the primary affirmation provision.
NCA Canadian Constitutional Law 3
The SCC held in Reference re Secession of Quebec [1998] that Canadian constitutional law is underpinned by four unwritten principles.
Which of the following is NOT one of those four principles?