Canadian Constitutional Law Flashcards

Section 96 of the Constitution Act, 1867 protects the jurisdiction of superior courts by preventing legislatures from stripping away their 'core' jurisdiction. Which test does the SCC apply to determine if a s. 96 violation has occurred?

Answer: The Residential Tenancies Act test: whether the power was broadly conformable with superior court jurisdiction at Confederation

In Re Residential Tenancies Act [1981] the SCC created a three-part test: (1) characterize the jurisdiction conferred; (2) ask whether it broadly conformed to superior court jurisdiction at Confederation; (3) if yes, determine whether it is ancillary to a broader regulatory scheme.

Canada's Constitution can be amended through multiple formulas. Which matters require the unanimous consent of Parliament and all ten provincial legislatures under s. 41 of the Constitution Act, 1982?

Answer: Changes to the amending formula itself, the office of the Queen, and representation of provinces in the Senate

Section 41 requires unanimity for: (a) the office of the Queen, Governor General, or Lieutenant Governor; (b) the right to a minimum number of senators per province; (c) use of the English or French language; (d) composition of the Supreme Court; (e) the amending formula itself.

Which of the following best describes the concept of 'cooperative federalism' as applied by Canadian courts?

Answer: Courts interpret overlapping federal and provincial laws to allow both to operate wherever possible, avoiding conflict

Cooperative federalism is an interpretive approach favouring the operation of both federal and provincial laws. Courts minimize conflict by reading laws harmoniously, reserving paramountcy (and its inoperability consequence) as a last resort.

Which section of the Charter protects language rights by guaranteeing official minority language education rights?

Answer: Section 23

Section 23 guarantees the right of citizens whose first language is that of the English or French linguistic minority in their province to have their children educated in that language where numbers warrant. This was interpreted expansively in Mahe v. Alberta [1990].

The duty to consult and accommodate Indigenous peoples was established by the SCC in which case?

Answer: Haida Nation v. British Columbia (Minister of Forests) [2004]

Haida Nation v. BC [2004] established that the Crown has a duty to consult and, where appropriate, accommodate Aboriginal peoples when it contemplates conduct that might adversely affect asserted (not yet proven) Aboriginal or treaty rights.

Under the Constitution Act, 1867, which level of government has exclusive jurisdiction over 'Indians, and Lands reserved for the Indians'?

Answer: The federal Parliament under s. 91(24)

Section 91(24) of the Constitution Act, 1867 assigns exclusive federal jurisdiction over 'Indians, and Lands reserved for the Indians.' However, provincial laws of general application may apply to Indigenous peoples where they do not conflict with this federal power.