NCA Constitutional Law flashcards

33 cards. Read the term and the definition here. The deck at the top of this page is optional.

Pith and substance

The test used to determine the true nature of a law by examining its purpose and effect; the dominant characteristic identifies which head of power applies.

Double aspect doctrine

A doctrine allowing both federal and provincial governments to legislate on the same subject matter if each acts for a different purpose within its own constitutional head of power.

Paramountcy

Where federal and provincial laws validly conflict, the federal law prevails to the extent of the conflict; conflict includes impossibility of compliance or frustration of federal purpose.

Interjurisdictional immunity

A doctrine protecting the core of a head of power from intrusion by the other level of government; applied narrowly and only where the intrusion impairs the core.

Living tree doctrine

The principle that the Constitution is capable of growth and expansion within its natural limits, and its meaning is not frozen at the time of enactment.

Oakes test

The s. 1 justification test: pressing and substantial objective, rational connection, minimal impairment, and proportionality between effects and objective.

Section 33 notwithstanding clause

A provision allowing Parliament or a provincial legislature to declare a law operates notwithstanding ss. 2 or 7-15 of the Charter; the declaration lasts five years.

Section 32 application

The Charter applies to Parliament and the federal government and to provincial legislatures and governments; it does not apply to purely private conduct.

Section 24(2) exclusion

Evidence obtained in a manner that infringed a Charter right may be excluded if admission would bring the administration of justice into disrepute, applying the Grant factors.

Public interest standing

A court may grant standing to a person with a genuine interest in a serious constitutional issue, even without direct affect, considering the issue's importance.

Section 35(1)

The constitutional provision recognizing and affirming existing Aboriginal and treaty rights of the Aboriginal peoples of Canada; it does not create those rights.

Duty to consult

The Crown's obligation to consult and accommodate Aboriginal peoples when it has knowledge of a potential right and contemplates conduct that might adversely affect it.

Aboriginal title

A sui generis right to use and occupy land, held collectively, not a fee simple, and alienable only to the Crown; established by evidence of pre-contact occupation.

Van der Peet test

The test for an Aboriginal right: identify the precise right and establish the practice was integral to the distinctive culture prior to contact.

Section 91 heads of power

Federal jurisdiction includes trade and commerce, criminal law, and the peace, order and good government power, among other enumerated heads in the Constitution Act, 1867.

POGG national concern

A branch of the federal peace, order and good government power covering matters of inherent national dimension that provinces cannot adequately address.

Ancillary powers doctrine

A valid law may intrude into another head of power if the intrusion is necessarily incidental to the valid scheme and not its dominant feature.

Presumption of constitutionality

Courts presume legislation is valid and prefer an interpretation that renders a law constitutional if one is reasonably available.

Section 7 principles

Life, liberty and security of the person may be deprived only in accordance with fundamental justice, including prohibitions on arbitrariness, overbreadth and gross disproportionality.

Section 15 test

A law discriminates if it creates a distinction based on an enumerated or analogous ground that perpetuates disadvantage, prejudice or stereotyping.

Section 2(b) expression

The guarantee of freedom of thought, belief, opinion and expression, including commercial expression, subject to limits justified under s. 1.

Section 11(d) presumption

The right of a person charged with an offence to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent tribunal.

Section 12 punishment

The prohibition on cruel and unusual treatment or punishment; the test asks whether the punishment is grossly disproportionate to the offence.

Grant factors

The three factors for s. 24(2) exclusion: seriousness of the Charter-infringing conduct, impact on the accused's interests, and society's interest in adjudication on the merits.

Suspended declaration

A remedy allowing a law to remain in force temporarily while the legislature responds to a finding of invalidity, where justified.

Reading in

A remedy adding words to a statute to save it from unconstitutionality, used where the legislature would have enacted the provision with the addition.

Severance

A remedy removing an unconstitutional portion of a statute while leaving the remainder intact, where the remainder is capable of standing alone.

Constitutional conventions

Unwritten political rules of constitutional practice that are enforced politically rather than by courts, distinct from legal rules.

Section 52 supremacy

The Constitution is the supreme law of Canada; any law inconsistent with it is of no force or effect to the extent of the inconsistency.

Amending formula

The general procedure under s. 38 requiring resolutions of Parliament and two-thirds of provinces with at least 50% of the population.

Honour of the Crown

A constitutional principle requiring the Crown to act honourably in its dealings with Aboriginal peoples, informing treaty interpretation and the duty to consult.

Trenching doctrine

A valid law may incidentally intrude into the other level's jurisdiction if the intrusion is not the dominant feature of the law.

Section 1 prescribed by law

A limit on a Charter right must be prescribed by law, meaning it must be accessible and intelligible, not merely discretionary or arbitrary.