Detailed table of contents

• Author: Patrick J. Monahan - Byron Shaw
• Pages: vii-xvi

FOREWORD xvii

PREFACE xix

PART ONE:

INTRODUCTION 1

CHAPTER 1:

AN INTRODUCTION TO THE STUDY OF THE CANADIAN CONSTITUTION 3

1. The Constitution Defined 3

2. Canada’s Entrenched Constitution 4

   1) Written Provisions 4

   2) Canada’s Unwritten Constitution 6

3. Key Characteristics of the Canadian Constitution 10

   1) Canada Is a Federal State 10

   2) Canada Is a Constitutional Monarchy 12

   3) The Canadian Constitution Guarantees Individual and Group Rights 14

   4) Political Power Is Concentrated Rather Than Separated 16

   5) The Canadian Constitution Has Become Somewhat Less Flexible Since 1982 18

4. Judicial Review 21

5. The Plan of the Book 23

   Further Readings 27

   PART TWO:

   THE FRAMEWORK AND INSTITUTIONS OF GOVERNMENT 29

   CHAPTER 2:

   CANADA’S CONSTITUTIONAL DEVELOPMENT BEFORE 1867 31

1. Representative and Responsible Government 31

2. Representative Government 32

   1) Aboriginal Government 32

   2) French Civil Law 32

   3) The Supremacy of Parliament in English Law 33

   4) Representative Political Institutions in the Colonies 33

   5) The Royal Proclamation of 1763 34

   6) The Quebec Act, 1774 35

   7) The Constitutional Act, 1791 37

3. Responsible Government 41

   1) Lord Durham’s Report 41

   2) The Union Act, 1840 43

   3) From Responsible Government to Cabinet Government 47

4. The Constitutional Negotiations of 1864–67 48

   Further Readings 52

   CHAPTER 3:

   THE CONSTITUTION ACT, 1867 : EXECUTIVE AND LEGISLATIVE POWER 53

1. Introduction 53

2. The Constitution Act, 1867 Is Entrenched 54

3. A Constitution “Similar in Principle” 55

4. Executive Power in the Constitution Act, 1867 56

   1) The Queen and the Governor General 56

   2) The Crown 57

   3) The Powers of the Crown 58

   4) The Queen’s Privy Council for Canada 61

   5) The Prime Minister and the Formation of the Cabinet 64

   6) Responsible Government 66

   a) Governor’s Duty to Follow Advice 66

   b) Appointment of the Prime Minister 66

   c) Defeat of a Government 69

   d) The King–Byng Incident 72

   e) Prorogation 74

   f) Refusal to Accept Unconstitutional Advice? 78

   7) Lieutenant Governors of the Provinces 81

5. Legislative Power 83

   1) Legislative Power in Canada 83

   2) Approval of the Governor General and the Lieutenant Governor 84

   3) Parliamentary Supremacy and the Rule of Law 85

   4) The Senate 87

   a) The Senate and the House of Commons Are Co-equal in Law 87

   b) Functions of the Senate 87

   5) The House of Commons 91

   6) Parliamentary Privilege 94

   7) The Legislative Process 98

   8) Proroguing and Dissolving Parliament 101

6. No Separation of Powers Between the Executive and the Legislature 102

7. Executive and Legislative Power at the Provincial Level 104

   Further Readings 105

   CHAPTER 4:

   THE CONSTITUTION ACT, 1867 : FEDERALISM AND JUDICIAL POWER 107

1. Federalism Defined 107

2. Canada as a Federal State 109

3. Federal Distribution of Legislative Powers 111

   1) Division of Powers in Sections 91–93 111

   2) Overlap of Federal and Provincial Powers 114

   3) General Federal Legislative Power: pogg 115

   4) Enumerated Powers in Sections 91 and 92 117

   a) Federal Enumerated Powers 117

   b) Provincial Enumerated Powers 119

   c) Judicial Interpretation: Role Reversal 121

   5) Concurrent Powers 122

   6) Judicial Characterization of Laws in Federalism Cases 123

   a) The Pith and Substance Doctrine 123

   b) The Ancillary Powers Doctrine 128

   c) Interjurisdictional Immunity 130

   d) Paramountcy 135

4. Judicial Power in the Canadian Constitution 138

   1) The Structure of the Courts 138

   a) The Supreme Court of Canada 138

   i) History 138

   ii) Appointment Process 139

   iii) Caseload 142

   b) Superior and Provincial Courts 143

   c) Federal Courts 144

   2) The Independence of the Judiciary and the Rule of Law 146

   3) Sections 96 to 100 of the Constitution Act, 1867 147

   4) Judicial Review Constitutionally Guaranteed 150

   5) Section 96 and Administrative Tribunals 154

   6) The Rule of Law and Crown...