Midterm 2 Review

Covers: Chapter 4 - Diversity and Multiculturalism (Immigration and Economic Integration section), Chapter 6 - The Constitution, Chapter 7 - Rights and Freedoms, and Chapter 8 - Federalism (slides 1–7 and 13–15).

Key Concepts at a Glance

• Canada’s 1967 points-based immigration system eliminated racial discrimination and remains the foundation of economic-class immigration today
• The Constitution is not one document but a series of laws (1867–1982); it distributes power and protects rights
• The Charter (1982) replaced parliamentary supremacy with constitutional supremacy — courts can now strike down legislation
• Rights are not absolute — Section 1 (reasonable limits / Oakes test) and Section 33 (notwithstanding clause) both allow rights to be limited or overridden
• Federalism divides law-making and revenue-raising between Ottawa and the provinces; Canada evolved from a centralized design into one of the world’s most decentralized federations
• A vertical fiscal imbalance drives federal-provincial financial tensions: provinces are responsible for expensive services but have limited revenue capacity

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Part 1 — Immigration and Economic Integration (Chapter 4)

The 1967 Immigration Reforms

Exam Alert

The 1967 Immigration Act introduced a colour-blind points system, eliminating racial discrimination and ethnic favouritism for the first time in Canadian history.

Immigration Categories

Applicants are assessed under four categories:

• Economic class (points system applies here)
• Family reunification
• Refugee status
• Business class

Points System Criteria

Economic-class applicants receive points for:

• Proficiency in one or both official languages
• Years of formal education
• Years of work experience
• Age
• Arranged employment in Canada
• Adaptability (e.g., family already in Canada)

Economic Integration Challenges

Economic-class immigrants are typically more educated than Canadian-born citizens of the same age — but this does not guarantee smooth entry into the labour force.

Common Mistake

Do not assume higher education automatically produces better economic outcomes for immigrants — credential recognition and cultural/language barriers are significant obstacles.

Four factors affect whether immigrants can successfully enter the professions they held in their home countries:

1. Language fluency
2. Knowledge of Canadian cultural norms in the workplace
3. Work experience recognizable to Canadian employers
4. Professional and occupational credentials accepted in Canada

Discussion Question

The textbook asks: “Do you consider the above factors to be forms of discrimination?” This is a key debate in immigration policy.

Definitions

Points System A colour-blind immigration evaluation system introduced in 1967 assessing applicants on language, education, work experience, age, and other objective criteria rather than national origin.

Visible Minority Defined under the Employment Equity Act; persons, other than Indigenous peoples, who are non-Caucasian in race or non-white in colour.

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Part 2 — The Constitution (Chapter 6)

What a Constitution Does

A constitution performs five functions:

1. Prescribes representation — by population, by region, by group
2. Empowers and limits the state — provides legitimate basis for state power while constraining it through elections, separation of powers, and federalism
3. Protects rights — basic democratic, civil, and group rights
4. Builds community and identity — creates shared sense of territory and values
5. Declares national purpose — e.g., reduce regional disparities (Constitution Act, 1982)

Rule of Law

Constitutional limits establish the rule of law: all public authority must be exercised in accordance with law.

Forms of Constitutional Rules

• Written documents — Constitution Act, 1867; Constitution Act, 1982
• Common law — court decisions establishing precedent
• Constitutional conventions — unwritten but binding practices (e.g., the leader of the party with most House seats forms government)

The Four Basic Principles (Secession Reference, 1998)

The Supreme Court identified four underlying principles of the Canadian constitution:

1. Federalism
2. Democracy
3. Constitutionalism and the rule of law
4. Protection of minorities

Parliamentary Supremacy vs. Constitutional Supremacy

Exam Alert

This is one of the most significant constitutional changes in Canadian history.

Era	Principle	Implication
Pre-1982	Parliamentary supremacy	Courts could not override Parliament on rights grounds; federalism was the only constraint
Post-1982	Constitutional supremacy	The Charter is supreme law (s.52[1]); courts can strike down laws violating Charter rights (s.24)

The Charter of Rights and Freedoms — Categories

Category	Key Contents
Fundamental Freedoms (s.2)	Religion, belief, expression, media, assembly, association
Democratic Rights (ss.3–5)	Right to vote; elections every 5 years; Parliament meets annually
Mobility Rights (s.6)	Freedom of movement within Canada (with limited exceptions)
Legal Rights (ss.7–14)	Security of person, fair trial, no unreasonable search, right to counsel
Equality Rights (s.15)	Non-discrimination on race, sex, age, religion, disability, etc.; affirmative action permitted
Language Rights (ss.16–23)	English/French equality federally; minority-language education rights
Aboriginal Rights (s.35)	Current and future treaty rights entrenched

Parliamentary Government

• Parliament = the monarch + the House of Commons + the Senate
• In practice, the monarch and Governor General are ceremonial; the Prime Minister and cabinet exercise powers
• Responsible government: cabinet must maintain the confidence of the House of Commons
• Confidence votes: Throne Speech, budget, key legislation, non-confidence motions
• Ministerial responsibility: ministers must defend all departmental actions to the House

Amending the Constitution

• Before 1982: only the British Parliament could amend the Constitution Act, 1867
• Since 1982: four different amendment procedures with varying combinations of federal and provincial consent

Exam Alert

Meech Lake Accord (failed) — recognized Quebec as a “distinct society.” Charlottetown Accord (failed by referendum) — added Aboriginal self-government and other changes. Both demonstrate how difficult major constitutional change is in Canada.

Quebec Secession Reference (1998) and the Clarity Act

• SCC ruled Quebec cannot unilaterally secede
• A clear majority on a clear question would obligate both sides to negotiate
• The Clarity Act gave Parliament power to review the referendum question and assess whether the result constitutes a “clear majority”

Definitions

Constitution — The fundamental law of a political system to which all other laws must conform. Constitutional Conventions — Unwritten practices accepted as binding rules of the political system. Responsible Government — The convention that cabinet must maintain the confidence of the House of Commons to remain in office. Confidence Vote — A vote on the Throne Speech, budget, key legislation, or a non-confidence motion; losing one means the government has lost the right to govern. Patriation — The 1982 process by which Canada gained full control over its constitution from Britain. Distinct Society — Proposed constitutional recognition of Quebec’s unique character; part of the failed Meech Lake Accord. Reserve Powers — Discretionary powers retained by the Governor General; rarely exercised.

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Part 3 — Rights and Freedoms (Chapter 7)

The Language of Rights

• Rights are framed as moral absolutes — but compromises are always necessary
• The politics of rights reduces space for negotiation because framing demands as rights makes them harder to trade off
• This produces the legalization of politics: conflicts shift from legislatures to courts

Exam Alert

Know what “legalization of politics” means and its consequences for democratic governance.

How Rights Issues Emerge

Rights issues are politically constructed, not automatic:

• Groups frame demands in rights language when cultural and institutional circumstances make it the most effective strategy
• For a rights claim to be legitimate, it must be anchored to one or more of a society’s core values/beliefs

Pre-Charter Era (1867–1981)

• Rights had a low profile for most of this period
• Many apparent rights issues were decided as federalism matters (who has jurisdiction?) rather than rights questions
• Canadian Bill of Rights, 1960: only a federal statute (not constitutional); only applied to the federal government; provinces were entirely unbound

Common Mistake

The 1960 Bill of Rights is NOT the same as the 1982 Charter. The Bill of Rights was only a statute, only applied federally, and was easily ignored by the courts after R. v. Drybones (1970).

Before 1982, the only constitutionally entrenched rights were associated with religion, language, and elections.

Key pre-Charter cases (decided mainly as federalism, not rights):

• Reference re Alberta Statutes, 1938
• Saumur v. City of Quebec, 1953
• Switzman v. Elbling (Padlock Case), 1957
• AG Canada and Dupond v. Montreal, 1978

Charter Era (1982–Present)

Five major effects of the Charter:

1. Explosion in the number of rights cases before the courts
2. Shift in venue of political conflicts — from legislatures to courtrooms
3. Parliamentary supremacy replaced by constitutional supremacy
4. Increased importance of judges in governance
5. Debate over the “Americanization” of Canadian politics

Applying the Charter

• Applies to governments and their laws and actions
• Governs citizen-state relationships
• Does not apply directly to private-sector relationships
• Law Society of Upper Canada v. Skapinker (1984): first major Charter case establishing its scope

Section 1 — Reasonable Limits

Oakes Test

From The Queen v. Oakes (1986) — the framework for determining whether a rights limitation is justified under Section 1.

A law limiting a right must:

1. Have a pressing and substantial objective
2. Be proportional: rational connection to the objective, minimal impairment of the right, and proportionality between effect and objective

Quebec Signage (Bill 101)

The SCC ruled Quebec’s French-only signage violated freedom of expression. Quebec invoked Section 33 to preserve the law.

Section 33 — Notwithstanding Clause

Exam Alert

Know which sections it applies to, and the major Quebec uses.

• Allows Parliament or a provincial legislature to override certain Charter rights for up to 5 years (renewable)
• Applies to Section 2 (fundamental freedoms) and Sections 7–15 (legal and equality rights)
• Does not apply to democratic rights (ss.3–5) or mobility rights (s.6)
• Notable uses:
  • Quebec, 1989 — French-only signage after SCC struck down Bill 101 provisions
  • Quebec, Legault government — to protect Bill 21 (ban on religious symbols for public servants) and Bill 96 (French language law)

Landmark Charter Cases

Rights expanded:

Case	Year	Issue
Queen v. Oakes	1986	Reverse onus in Criminal Code struck down
The Queen v. Big M Drug Mart	1985	Sunday closing laws — freedom of religion
Morgentaler	1988	Canada’s abortion law struck down
Vriend v. Alberta	1998	Sexual orientation read into Alberta human rights code
Carter v. Canada	2015	Right to physician-assisted suicide
Saguenay ruling, SCC	2015	Municipal prayers violate state neutrality on religion
R. v. Ndhlovu	2022	Lifetime sex offender registry inclusion struck down

Rights limited (consistent with Canadian values):

Case	Year	Issue
R. v. Keegstra	1990	Hate speech prohibition upheld
Harper v. Canada	2004	Limits on third-party election spending upheld
R. v. N.S.	2012	Niqab while testifying — balance between religion and fair trial

Canada vs. USA on Rights

Canada (5.08/7) scores slightly lower than the USA (5.73/7) on support for free expression — Canadians are somewhat more willing to accept limits on speech, consistent with hate speech law (Keegstra).

Exam Alert

The “Americanization” debate: Canada has been influenced by American rights culture but retains distinct features — including greater willingness to limit rights for community reasons, and Section 33 (which has no US equivalent).

Definitions

Legalization of Politics — The process by which political conflicts are increasingly resolved through courts rather than legislatures. Oakes Test — The two-part framework (pressing objective + proportionality) used to assess Section 1 Charter limitations. Notwithstanding Clause — Section 33; allows Parliament or provincial legislatures to override ss.2 and 7–15 for renewable 5-year periods. Constitutional Supremacy — The constitution is the supreme law; legislation inconsistent with it is invalid. Parliamentary Supremacy — The pre-Charter principle that Parliament could pass any law without judicial override on rights grounds.

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Part 4 — Federalism (Chapter 8, Slides 1–7 and 13–15)

What is Federalism?

A system of government under which the constitutional authority to make laws and raise revenue is divided between a national government and regional governments.

Two approaches to studying federalism:

• Legal approach — federal constitutions (formal division of powers)
• Sociological approach — federal societies (underlying linguistic, regional, cultural diversity)

Why Federalism? Reasons and Sustainability

Rational reasons: combining the benefits of greater size (economic scale, security) with retention of regional control and recognition of diversity.

Political sustainability: a federal state is ultimately sustained by:

1. A sense of political nationality/community, OR
2. Failing that, a belief that the status quo is preferable to break-up

Exam Alert

When these sustaining conditions are absent or under pressure, the federal union is likely to be questioned. Examples of challenged or failed federations: Soviet Union, Czechoslovakia (broke apart); ongoing tensions in Spain, Belgium, UK, Canada.

Origins of Canadian Federalism

• The American model (pre-Civil War) appeared to be a failure — its weak central government seemed to contribute to secession and war
• Some Ontario politicians preferred a unitary system, but most colonial leaders refused to surrender all powers
• French Canadian politicians in Quebec wanted to retain control over culture (language, civil law, religion)
• Maritime leaders insisted on a federal form — they would not join otherwise
• Result: the Constitution Act, 1867 established a federal compromise

Original Expectations (Constitution Act, 1867)

The federal government was expected to be the superior level of government. Signals of this:

• Greater legislative powers: the POGG (“peace, order and good government”) residual clause in s.91
• Greater revenue-raising powers: Ottawa kept customs and excise; provinces limited to direct taxation
• Quasi-federal features — powers that undermine true federalism:
  • Reservation: Lieutenant-Governor could reserve provincial bills for federal approval
  • Disallowance: Federal Cabinet could nullify any provincial law within two years

Exam Alert

Reservation and disallowance are “quasi-federal” because they give Ottawa formal supremacy over provinces — unlike true federalism where each level is sovereign in its own sphere. These powers fell into disuse but remain in the constitution.

Common Mistake

Courts are reluctant to base decisions on the “original intentions” of the founders — those intentions are disputed. Courts prefer textual and structural interpretation.

Federal Division of Powers

The core division is in sections 91 and 92 of the Constitution Act, 1867:

Section	Level	Examples of Powers
s.91	Federal	Criminal law, banking, trade & commerce, POGG residual
s.92	Provincial	Property & civil rights, education, health, municipalities
s.92A (added 1982)	Provincial	Non-renewable natural resources
s.93	Provincial	Education
s.95	Concurrent	Agriculture, immigration (federal paramountcy applies)

Exam Alert

Most major policy fields involve divided governmental authority — there is no clean separation. Health, environment, and social policy all involve both levels (see Box 8.3 in textbook).

Key doctrines:

Paramountcy doctrine — Where valid federal and provincial laws conflict, federal law prevails and the provincial law is inoperative to the extent of the conflict.

Spending power — The claimed federal authority to spend money in areas of provincial jurisdiction (e.g., health, post-secondary education). Not explicitly in the constitution but widely practised; used to create national programs like medicare.

Spending Power

The claimed federal authority to make payments to individuals, institutions, or provincial governments for purposes that fall within provincial legislative jurisdiction.

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Part 5 — Fiscal Federalism (Chapter 8, Slides 13–15)

The Core Problem: Vertical Fiscal Imbalance

The gap between the cost of provincial responsibilities and provinces’ revenue-raising capacity is the root of fiscal federalism problems.

• At Confederation (1867): provincial responsibilities (roads, municipalities, education) were comparatively inexpensive — justifying Ottawa’s large revenue share
• By the mid-to-late 20th century: provincial programs became enormously expensive — universal healthcare, post-secondary education, social welfare
• Ottawa entered the picture using the spending power to help finance shared-cost programs administered by provinces

Major Federal Transfers to the Provinces (millions of dollars)

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Transfer	2016-17	2020-21	2024-25	2025-26
Canada Health Transfer	36,068	41,870	52,081	54,685
Canada Social Transfer	13,348	15,023	16,909	17,416
Equalization	17,880	20,573	25,253	26,170
Territorial Formula Financing	3,603	4,180	5,159	5,489
Total	70,943	81,732	99,401	103,759
Per Capita (dollars)	1,959	2,149	2,407	2,440

Exam Alert

Three main transfer types to know:

1. Canada Health Transfer (CHT) — largest; supports provincial health care
2. Canada Social Transfer (CST) — supports post-secondary education and social assistance
3. Equalization — redistributes from “have” to “have-not” provinces based on fiscal capacity

Equalization Payments (2024-25)

Equalization ensures provinces can provide “reasonably comparable levels of public services at reasonably comparable levels of taxation” (s.36[2], Constitution Act, 1982).

Recipients (2024-25):

• Quebec: $13.3 billion (by far the largest recipient)
• Manitoba: $4.4 billion
• Nova Scotia: $3.3 billion
• New Brunswick: $2.9 billion
• PEI: $610 million
• Newfoundland & Labrador: $218 million
• BC, Alberta, Saskatchewan, Ontario: $0 (net contributors)

Remember

Equalization is paid by the federal government from general revenues — it is not a direct transfer from rich provinces to poor ones. Alberta’s grievance is that it pays enormous federal taxes that fund equalization but receives none.

Fiscal Federalism

The financial dimension of intergovernmental relations — encompassing federal transfers, equalization, tax agreements, and the fiscal gap between provincial responsibilities and revenue capacity.

Definitions

Federalism — A system of government under which constitutional authority to make laws and raise revenue is divided between a national government and regional governments. Paramountcy Doctrine — Where valid federal and provincial laws conflict, federal law prevails. POGG (Peace, Order and Good Government) — The federal residual power in s.91; interpreted through the “national dimensions” and “emergency” doctrines. Reservation — A quasi-federal power allowing the Lieutenant-Governor to withhold royal assent from a provincial bill. Disallowance — A quasi-federal power allowing the federal Cabinet to nullify any provincial law within two years. Equalization — Federal payments to provinces with below-average fiscal capacity; constitutionally enshrined in s.36(2). Spending Power — The claimed federal authority to spend in areas of provincial jurisdiction; used to fund shared-cost programs like medicare.

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Cross-Chapter Connections

Topic	Where it appears
Parliamentary → constitutional supremacy	Ch6 (introduces concept) + Ch7 (Charter consequences)
The Charter	Ch6 (what it contains) + Ch7 (how it is applied and limited)
Section 36(2) — equalization	Ch8 (fiscal federalism)
Spending power	Ch6 (federalism principle) + Ch8 (fiscal tool)
Minority rights / group rights	Ch4 (multiculturalism) + Ch6 (constitution) + Ch7 (rights)
Quebec	Ch6 (secession, distinct society, Meech/Charlottetown) + Ch7 (notwithstanding clause, Bill 21/96)