Uploaded by Simran Kaur

The Constitution

Thursday, January 12, 2023
lecture1: the constitution
- Objectives of the Course
• Describe formal and informal features of Canadian politics
• Understand core theoretical concepts in political science and how they apply in the
Canadian context.
• Engage with important debates in Canadian politico science and communicate
evidence-based arguments and analysis.
- Objectives of the lecture
• Outline the general functions provided by constitutions
• Understand the context of Canada’s founding
• Know the general principles underlying Canada’s constitution
• Trace the general trajectory of constitutional change in Canada and the central
tensions underlying this process.
- De nitions and Functions
• De nition
- A constitution is a fundamental or overarching law in a political system.
• All other laws must conform to the constitution in how they are made and in their
• Function
- Constitutions regulate politics in democratic society. They set the terms of the
relationship between:
• Citizens and the state
• Different branches within the state (i.e., executive, legislative)
• Different levels of government (federal states only)
- Constitutions regulate these relationships by enshrining provisions related to:
• Representation
- What is the basis of representation?
• Population
• Territory
• Social group
- Which public of cers are elected or not?
- What is the manner by which of cials are elected?
• Power
- How is power divided?
• Legislative, executive, and judicial
• National vs. Provincial (vs. Municipal)
- How is power limited?
• Elections
• Judicial enforcements
• Referenda? Recall?
• Rights
- Rights: things that citizens are entitled to - are a principle means to regulate the
relationship between citizens and the state.
• Individuals vs. Group rights
• Positive vs. Negative rights
• Variation in enforcement (parliamentary vs. Judicial supremacy)
- Formation and Basic Principles
• Formation
- Canada’s constitution was created with the passage of the British North America
Act of 1867 by the British Parliament
- Resolutions were debated and votes on in both houses of the colony of Canada’s
- Consittuional Form
• Constitutions can be written or unwritten and implicit based on this passage:
- “Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have
expressed their Desire to be federally united into One Dominion… with a
Consistution similar in Principle to that of the United Kingdom.”
• Written components to the constitution are know as constitutional laws - these are
enforceable by the courts.
• Unwritten components to the constitution are known as constitutional conventions
- these are not enforceable by the courts, they are left to the realm of politics.
• A lot of our constitutional order is actually unenforceable by the courts, including
methods of selecting the Prime Minister
- Basic Principles
• federalism: the lack of subordination of provincial government to the federal
• democracy: the election of representatives by the people;
- The Supreme Court has also identi ed majority rule and substantive goals like
individual dignity, and commitments to diversity, equality, and social justice as
important components.
• Constitutional supremacy: no one, including governments, is above the
constitution as the law of the land.
- Structure
• Central to British (i.e.,
Westminster) style
government is the
- The Crown
• The King of Canada is Canada’s head of state.
• Power is exercised by the Governor General or the Lieutenant Governors at the
provincial level.
• Power to: dissolve Parliament and call elections; call on parties to form government;
grant royal assent to bills.
• Symbolic
- Privy Council and the Cabinet
• In practice, the Crown’s power is wielded by the members of the Privy Council Queen’s advisors.
• More speci cally, the current members of the Cabinet are led by the Prime Minister.
• Actions taken by the Governor General on behalf of the Queen are down on the
advice by the Prime Minister.
- Responsible Government
• The Prime Minister and Cabinet are drawn from the legislature and must maintain the
con dence of the House of Commons, known as responsible government
• Con dence can be lost on motions of non-con dence or government defeats on
important legislation (eg. Throne speech, budget).
• Pre-confederation colonies operated by this principle - taken as given and was not
written down.
• If the government holds a majority of seats, con dence is effectively automatic.
- This is because of party unity.
- Parliamentarians almost always vote with their party, either (1) because they agree
with it (party cohesion) or (2) because they are forced to (party discipline).
• In times of minority government, things become a little more interesting.
- Ministerial Responsibility
• Another mechanism of accountability of the executive to the legislature is through
ministerial responsibility.
• Cabinet ministers must explain and defend the actions of their ministry to the
legislature and resign in the event of serious controversy.
• How reasonable is this in the modern era?
- Collective Responsibility
• All members of cabinet must publicly support and defend the actions of cabinet,
known as collective responsibility.
• If they publicly oppose a cabinet decision, they must resign.
- This principle ensures cabinet can be held responsible as a collective to the House
of Commons.
- Judiciary and Separation of Powers
• Unlike the U.S., there is no separation of powers between the executive and
legislature, but there is between the judiciary and the parliament.
• Adhere to the principle of judicial independence: judges are to make decisions free
of interference by other branches of government.
- This is based on conditional convention and statute law, rather than stemming from
enumerated powers.
Constitutional Change
- Amending the Constitution, pre-1982
• One of the most important features of any constitution are the rules they lay down for
constitution amendments.
• The original British North America Act had no mechanism to alter the division of
powers between the federal government and the provinces.
• Canada could make a request to the UK to amend the BNA act, but it was unclear
who would need to agree for this to occur.
• Was our constitution frozen in time? NO!
• Constitutions are dynamic and can change as a result of evolving norms or changing
court decisions.
- Example 1: powers of disallowance and reservation
- Example 2: the role of the Governor General
- Example 3: the judicial decisions of the Judicial Committee of the Privy Council
- Amending the Constitution, post-1982
• The Supreme Court laid the groundwork for constitutional partition in a 1981
reference decision.
• SCC ruled it was a constitutional convention (i.e., not binding by the courts) for
Ottawa to request an amendment to the BNA Act with substantial consent of the
• Trudeau secured support of 9 out of 10 of the premiers.
• Patriation transformed Canada’s constitution (Constitution Act, 1982):
- BNA Act —> constitution act, 1867
- Recognition of the rights of Indigenous peoples
- Charter of Rights and Freedoms
- Equalization
- Revised Division of Powers
- No longer subject to change by the British Parliament
• Constitution Act of 1982 includes 4 amending formulas:
Resolution passed in House and
Senate and 2/3 of provinces
that comprise of at least 50%
of the population.
Division of powers
Representation in the House
Supreme Court (except composition)
Extension and creation of provinces
Resolution passed in House and
Senate and all provincial
Ottawa and one or
more provinces
Resolution passed in the House
and Senate and relevant
provincial legislatures
- Alternation of provincial boundaries.
- Use of French and English in a set of
Resolution passed in House and
Senate or provincial legislature.
- Operation of the federal or provincial
Ottawa or a province
acting along
The Crown
Seats >= senate Allotment
Composition of the Supreme Court
Amending Procedures
- Provincial constitution
- Meech Lake
• Efforts to secure the sign off from Quebec began with the Meech Lake Accord.
- 5 demands:
1. Recognition of Quebec as a distinct society
2. Control over immigration
3. Power to nominate justices
4. Opt-out of shared cost programs and reimbursement
5. Changes to the amending formula
• A lot of criticism was levelled at the accord:
- Too much for Quebec.
- Too little for other groups (eg. Indigenous, women, minorities)
- Created in a secretive and undemocratic manner
• Ultimately, the Accord failed because it was not rati ed in Newfoundland and
Manitoba - required unanimous consent.
- Charlottetown Accord
• Failure of Meech Lake Accord led to a renewed push for more expansive
amendments to the Constitution.
• Two years of government-organized public hearings and public forums hosted by
academics, activists, and interest groups.
1. A Canada clause listing characteristics of Canadian society
2. Aboriginal self-government
3. Elected senate with equal representation by province, seats for the indigenous.
4. Francophone veto in Senate for bills related to French language or culture.
5. Guarantee to Quebec for 25% representation in the House.
6. Recognition of exclusive provincial jurisdiction and decentralization in immigration
and labor policy.
• Failure
- The Accord was so expansive, there was something in it to annoy pretty much
- Put to a referendum (through not required by the Constitution) and failed to reach
50% in 6 provinces, including Quebec.
- Opposition was particularly strong in the West, owing to opposition of the budding
Reform Party under Preston Manning
• Consequences
- Failure of constitution negotiations reenergized separatist movement in Quebec.
• Led to the 1995 referendum on Quebec separation: no side narrowly prevail
• 1998 Supreme Court reference case: separation was compatible with
constitution if a “clear majority” voted yes to an “ambiguous question” on
• Led to Clarity Act, which enshrined this ruling in law.
• Unresolved Issues:
- Role of indigenous communities in the constitutional order?
- Place of Quebec in the Canadian Confederation? Asymmetrical federalism?
- Balance between centralization and decentralization
- Role of the public in constitution change: are referenda necessary?