Study Questions: Chapter 5
1. What are the three forms that a constitution can take? Briefly explain each.
Written documents, such as the Constitution Act, 1982; decisions of the courts, called the common law; and unwritten conventions, which are practices and norms of behaviour, not legally binding or enforceable by the courts but considered by actors as expected behaviour. (pp. 131–132)
2. What explains the persistence of regionalism?
Three factors explain the persistence of regionalism. First, traditional thinking has underestimated the degree to which regional states and elites may invest in regionalism, and nationalism, for their own interests or for what they perceive to be the interests of the region. Secondly, national political, cultural, and economic institutions have failed to produce levels of national integration and identity that would overcome regional ways of thinking that encourage regionalism. Thirdly, while differences among regions decline, they do persist to some degree. The most notable examples have to do with the presence of the francophone majority in Quebec and the Inuit majority in Nunavut. The demographic differences between these regions and the other parts of Canada are dramatic. (pp. 108–112)
3. How does a constitution embody national purpose?
Constitutions include statements that declare national objectives. They state what the society intends to be about. Brooks and Ménard refer to the constitution of China, which starts with a preamble that describes the country’s path to socialism. The Constitution Act, 1867 articulates nation-building goals for the people of Canada. (p. 136)
4. How has the precise meaning of the principle of democracy evolved over time?
When the 1867 constitutional document was drafted, it was taken for granted that Canada would be democratic. The democratic nature of our political institutions was assumed. Since that time, ideas about democracy have changed. Women, for instance, gained the right to vote many decades ago. The Senate is about to undergo some democratic change. Further, the Supreme Court has commented on the meaning of democracy. One comment is that majority rule is a basic premise of democracy. Another is that our federal structure alters the notion of majority rule somewhat. Additionally, the consent of the governed is a value that is basic to our understanding of a free and democratic society. So, not only is the country more democratic, the justices have attempted to flesh out what is involved in Canada’s constitutional democracy. (pp. 137–141)
5. What is the weakness of section 6 of the Charter, according to Brooks and Ménard?
Section 6—mobility rights—prohibits restrictions on the movement of people in Canada. However, the section permits provinces to impose reasonable residency requirements on citizens before they can be eligible for publicly provided social services. The section also allows provinces to establish affirmative action programs favouring a province’s residence if unemployment in the province is high. (p. 143)
6. What is the constitutional principle of responsible government? How has it evolved over time?
The prime minister and cabinet are accountable to the House of Commons. In order to govern, they require the confidence of the House. If they lose it, Parliament is dissolved and an election is held. It has evolved in the sense that in our time, disciplined political parties and dominant prime ministers ensure that cabinets are seldom defeated. Nevertheless, executives remain accountable to the House and the elected representatives retain the ultimate sanction. (pp. 146–150)
7. How has constitutional supremacy replaced parliamentary supremacy in Canada?
Parliamentary supremacy means that Parliament’s authority is superior to that of all other institutions of government. Constitutional supremacy means that the constitution is supreme and that all laws made by Parliament and legislatures must conform to it. This concept is embedded in the Constitution Act, 1982. However, the constitution does not have total supremacy, as section 33 (the notwithstanding clause) of the Charter allows governments to enact laws even though the Supreme Court may have declared them in violation of section 2 or sections 7–15. (pp. 150–153)
8. How does the separation of power reflect an Americanizing trend in Canadian politics?
The separation of powers is a basic principle of the US constitution. It calls upon each branch of government to serve as a check and balance on the others. It is only indirectly applicable in Canada. However, section 24 of the Charter, which declares that the courts shall enforce the Charter, reflects the American application in that it is a firm declaration that the courts represent a check on the powers of Parliament and the provincial legislatures. (p. 151)
9. What did Philip Resnick argue regarding Canada’s deferential political culture?
In the parliamentary system, parliament was not only the people. It also included the crown. According to Resnick, parliamentary sovereignty fosters attitudes in the population that were nominally participatory but maximally deferential towards those exercising authority. The mystique of British crown and constitution helped to make illegitimate all forms of political activity not sanctioned or channelled through parliamentary institutions. According to Resnick, if Canadians are more deferential than Americans, it is because the attitude of deference was generated to some degree by parliamentary institutions that discouraged popular participation beyond voting. (pp. 154–155)
10. What are the main features of the Charlottetown Accord?