Jan 12 : THE CONSTITUTION I

• Marland & Wesley, pp.36.68

Lecture Notes:

The evolution of Canada's territory can be followed at maps available from the National Atlas of Canada; select "Historical" and then "Territorial Evolution."
 

Key dates in Canada's path to independence:

"The Dominion of Canada" created on July 1, 1867. But that is not the date of Canada's independence.

Canada's independence was the process of evolution over a long period of time.

1763 - The legal end of warfare between Britain and France

• The Treatyof Paris, 1763
• The RoyalProclamation, 1763

1865 - Colonial Laws Validity Act - prevented colonial legislatures from amending or repealing laws passed by the Imperial Parliament; also provided that colonial laws that conflicted with Imperial statutes would be invalid.

1867 - Confederation: Nova Scotia, New Brunswick, & the Province of Canada combine into the Dominion of Canada. The Dominion was created by the British North America Act, 1867 (The BNA Act); this law is now referred to as the Constitution Act, 1867.

1923 - Halibut Treaty: The first international treaty negotiated by Canadian representative without British involvement. The Halibut treaty was reached with the United States. The treaty was still signed by the King as Emperor.

1926, 1929, 1930 - Imperial conferences which established the political autonomy of the self-governing Dominions. Included in the agreements was one that the Dominions could chose their own Governors General. The 1926 Imperial Conference resulted in the "Balfour Declaration:"

They [the UK and the dominions] are autonomous communities within the British Empire, equal in status, in no way subordinate to one another in any aspect of their domestic or international affairs, although united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.

The 1930 conference decided that the King would be advised by the relevant Dominion government on the appointment of future Governors General.

1931 - The Statute of Westminster: provided that legislation passed by the Dominion Parliaments could amend or repeal legislation passed by the Imperial Parliament in London. The big exception was the collection of British North America Acts, which could still only be changed (for the most part) by the British.

1939 - The King declares war separately for Canada.

1949 - The Supreme Court of Canada finally becomes the last court of appeal for Canada, replacing the Judicial Committee of the Privy Council in London.

1982 - The Canada Act, 1982 passed by the British Parliament ends any further British legislative authority over Canada. It includes the Constitution Act, 1982 that provides the Charter of Rights and a Canadian process for amending the Constitution. This Act provided for what is known as the patriation of the Constitution - which means that the Canada's Constitution could finally be amended domestically, rather than by the UK Parliament.

The formal Constitution of Canada is defined in s.52(2) of the Constitution Act, 1982.  The Constitution is comprised of 26 statutes and 11 formal amendments made since 1982.

The whole constitution of Canada involves all the rules, customs, and principles relating to the structure and exercise of government power in Canada. 

The whole constitution of Canada comprised of:

• formal documents of the Constitution
• amendments to the Constitution
• other statutes
• judicial decisions
• constitutional conventions
• unwritten constitutional principles
• political practices

The nature of Canadian federalism is has been changed in important ways by judicial interpretation distribution of powers between the federal and provincial governments. The courts have also defined Canadians' rights by interpreting the Charter of Rights and other human rights legislation.

Examples of other important court cases on the constitution include the Supreme Court of Canada's decision on Patriation in 1982 and on Quebec separation in 1998..

Main principles of the Canadian constitution:

• democracy
• federalism
• parliamentary (responsible government)
• constitutional monarchy
• rule of law
• judicial review

Jan 19: THE CONSTITUTION II

• Heard, ch.1 (optional) – available through Canvas

Lecture Notes:

Key words & concepts:

• constitutional conventions
• rules of internal morality
• rules of critical morality
• customs
• patriation
• preamble of the Constitution Act, 1867

Formal Constitution described in s.52: The Canada Act, 1982 plus 25 other statutes and orders-in-council listed in the Schedule  to the Constitution Act, 1982.

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(2) The Constitution of Canada includes

(a) the Canada Act, 1982, including this Act;

(b) the Acts and orders referred to in the Schedule; and

(c) any amendment to any Act or order referred to in paragraph (a) or (b).

(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

The two main constitutional documents that define the powers of Canadian governments are:

• The Constitution Act, 1867. This statute of the British Parliament created Canada in 1867 and set out the division of powers between the federal and provincial governments. Its original name was the British North America Act, 1867 - often referred to as the "BNA Act", but this was changed in 1982. 
• The Constitution Act, 1982. This Act created for the first time a set of amending procedures for the Constitution to be amended entirely in Canada. Until 1982, many changes to the then British North America Acts had to be carried out by the British Parliament. This Act also includes the Charter of Rights & Freedoms. The Constitution Act, 1982, was actually created as a part of the Canada Act, 1982. The Canada Act ended any further British legislative authority over Canada. 

An interesting collection of Canadian constitutional and historical documents can be found at www.solon.org.

Constitutional conventions are binding rules of political behaviour that are not laws. Conventions are also different from customs or usages, because conventions protect or enable a constitutional principle; customs are traditional patterns of behaviour with ceremonial value.

Traditional authorities, such as Eugene Forsey and Sir Ivor Jennings have argued that one should add to this definition of conventions wording that implies that they are considered binding by those to whom they apply.  Unfortunately, this ensures that conventions are rules of internal morality. Conventions need to operate as a rule of  critical morality if they are to bind political actors.

Traditional approach to identifying conventions developed by Jennings:

• relevant precedents, past events
• the statements of the political actors in the precedents reviewed
• what constitutional principle is at stake

But statements of political actors may be useful but not determinative because actors can be

• ignorant of the rules
• mistaken in their honestly held belief
• badly advised as to what the rules are
• knowingly false - actor may be trying to get away with something they know to be wrong

Past precedents can be out of date and not reflective of contemporary consensus of appropriate behaviour.

Constitutional Change

Constitutional change occurs through:

• political practice or agreement changing constitutional conventions
• new or amended legislation dealing with constitutional matters
• judicial interpretation
• formal amendment of the constitution of Canada
  • Amending formulas in Part V of the Constitution Act, 1982:
• "7 & 50" - the general formula
  • Regional Veto Formula - Constitutional Amendments Act, 1996
• joint Parliament and 1 or more provincial legislature
• unanimous
• unilateral federal amendment through legislation
• unilateral provincial amendment through legislation to the "constitution of the province"
• unilateral declaration of independence

In 1998 the Supreme Court of Canada decided the Reference to on Quebec Secession. As a result, the Parliament of Canada passed the Clarity Act in 2000, and the Quebec National Assembly responded with An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State

Unsuccessful Attempts to Amend the Constitution

Two major broad packages of constitutional change were attempted following patriation in 1982. The Meech Lake Accord was agreed to by all ten provincial premiers and Prime Minister Mulroney in 1987. However, opposition to the Accord grew in the period during which the provincial legislatures were to ratify the agreement.  In New Brunswick and Newfoundland, provincial elections brought new government who were opposed, and in Manitoba there was strong opposition from First Nations leaders. In the end the deal failed when the three-year limit on ratifying proposed constitutional agreements ran out.

Highlights of the Meech Lake Accord:

• recognition of Quebec as a "distinct society"
• provincial nominations for appointments to the Senate and Supreme Court of Canada
• some limits on the federal government's "spending power"
• increased provincial role in immigration
• expended the requirement for unanimous consent for constitutional amendments

The Meech Lake process was credited for being very elite driven, although it was done in the style of the many previous rounds of constitutional negotiations, including some marathon bargaining to seal the deal.

Very soon after the failure of Meech Lake, federal and provincial politicians tried again to reach a new agreement, with a broadening of public input and the inclusion of a wider range of political leaders in the negotiations, including representatives from the Territorial governments and from Aboriginal groups. A significant process of public consultation and "town hall" meetings were held across the country. The result was a wider-ranging set of proposals known as the Charlottetown Accord. As provincial referendums had to be held in Quebec and British Columbia, the federal government agreed to hold a national referendum (although in Quebec it was organized provincially). In the end 54% of Canadians voted against the Charlottetown Accord.

Highlights of the Charlottetown Accord:

• the recognition of Quebec's distinctiveness within a general "Canada Clause"
• "Triple E" Senate - Elected, Equal representation for every province, and Effective
• limits on the federal government's "spending power"
• a Social Charter promoting the values of various social welfare programs
• recognition of an "inherent right" to Aboriginal self-government
• exclusive provincial authority over several areas, including culture, forestry, and mining
• wider range of issues requiring unanimous consent and provision for compensation to provinces if jurisdiction transferred to the federal government

The death of the Meech Lake and Charlottetown Accords marked the end of decades of federal-provincial constitutional negotiations on multi-item packages, known as "mega-constitutional" politics. Ironically, most of the items in both Accords could have been achieved through the 7 & 50 formula, but the inclusion of a few items requiring unanimous consent doomed the whole package.

There have been eleven successful amendments to the Constitution of Canada since 1982, all dealing with single issues: 

• Constitution Amendment Proclamation, 1983 dealt with Aboriginal rights. This is the only amendment made since 1982 which used the general amending formula under s.38.
• Constitution Act, 1985 (Representation) permitted future changes to the distribution of seats for Parliament to be done by ordinary statute. This amendment was made by ordinary statute under Parliament's unilateral amending powers in s.44
• Constitution Amendment, 1987 (Newfoundland Act) extended education rights to the Pentecostal Church. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Constitution Amendment Proclamation, 1993 (New Brunswick Act) made English and French both official languages in New Brunswick. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Constitution Amendment Proclamation, 1993 (Prince Edward Island) cleared the way for the "fixed link" bridge to replace ferry services to PEI. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Constitution Amendment Proclamation, 1997 (Newfoundland Act) allowed the Province of Newfoundland to create a secular school system to replace the church-based education system. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned. This amendment is the only one made since 1982, in which the Senate's approval was not given within 6 months; the measure by-passed the Senate after being re-affirmed by the House of Commons.
• Constitution Amendment, 1997 (Québec) permitted the province to replace the denominational school boards with ones organized on linguistic lines. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Constitution Amendment, 1998 (Newfoundland) allowed the province to abolish the denominational school system. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Constitution Act, 1999 (Nunavut) provides for representation in the House of Commons and the Senate for the Nunavut Territory. This amendment was made by ordinary statute under Parliament's unilateral amending powers in s.44
• Constitution Amendment 2001 (Newfoundland and Labrador) officially changed the name of the Province of Newfoundland to the Province of Newfoundland and Labrador. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
• Fair Representation Act, 2011 This Act amended s.51(1) of the Constitution Act, 1867 to update the provisions relating to the periodic redistribution of seats in the House of Commons. This amendment was made by ordinary statute under Parliament's unilateral amending powers in s.44.