Liberty and Equality

- Aristotle’s classification of regimes

- Tyranny of majority
- Democracy vs. Liberal Democracy
o Liberal democracy has protection of minority rights
- Mill and the Harm Principle

Institutions
- Functions of constitutions generally
o Define executive, legislative, and judicial authority
o Divide power across levels of government
o Put constraints on those powers
o Amending formula
- Conventions, organic statutes, entrenched constitutions
- Elements of Constitution Act 1867, and Constitution Act 1982

The Charter
- Entrenched and repatriated the Canadian constitution
- Judicial review and constitutional democracy
 - Judicial activism and interpretation
- Notwithstanding clause
- The Oakes Test
o Rights and freedoms guaranteed in the Charter are subject to reasonable limits
o Reasonable limits are defined under the Oakes Test
o Oakes Test Criteria:
 Proportionality
- Remedies: Section 24, 52
o Strike legislation down
o Read in

Amending Formula
- Why use super-majorities
o We want to be able to change the constitution but not have a tyranny of the
majority
- Veto points
- Gridlock intervals
- Practical difficulty of change

Federalism
- Federal vs. unitary
- Residual power and POGG clause
- Evolution of Canadian federalism
o Double-majority in the Canadas: both the federal and provincial governments
are equal
o Maritime Bank Case: established the double-majority in Canada
o Double-aspect of Section 91 and 92 powers
- Puzzle of Canada’s decentralized federation
- Direct vs. indirect taxation and revenue capacity
o Direct: paid directly to government (ie: income tax)
o Indirect: paid through some middle man (ie: GST and PST)
- Rowell-Sirois report
o The provinces had a lot of responsibility, but not enough resources to complete
those responsibilities
- Equalization and fiscal federalism
- Charter politics vs. Sections 91 and 92 politics
- “Rep-by-pop” as expression of democratic equality
- Tensions with compact theory of Confederation
o Compact theory: sees Canada as a compact of French and English people
- Duverger’s Law, SMP and PR
- Senatorial floor clause and limits to electoral reform
o Senatorial floor: A province needs to have at least as many senators as it does
MPs
Responsible Government
- The Preamble: Canada is going to have a government similar to that of Britain’s
- Fusion of powers vs. separation of powers
- Irresponsible government in the Canadas pre-1847
- Responsible government, accountability and liberty
- Crown’s adherence to and need for advice
- Collective responsible and Confidence
- Implications of responsible government
o Evolution of cabinet dominance
o Parties and party discipline
o Necessity of elections and reserve powers to break deadlocks
- Parliament, time, and the plenary bottleneck
- Individual ministerial responsibility and civil servants
- Policy-making
o Electoral “short-termism” and blame avoidance
o Information asymmetries and moral hazard and adverse selection