Canadian
Constitutional
Law
Confederation 1867
All added in 1982
What is a Constitution?
• Defines the framework for a country’s (or any
organization’s) system of government and
judicial system.
• “The rules that must be followed when making
laws or running government” (Najam)
There are 3 “parts” to the Constitution of
Canada:
1)
The written documents
(Constitution Act 1867 a.k.a. British North America Act)
(Constitution Act 1982 a.k.a. Canada Act (Charter))
2) The unwritten conventions and ways of
government (legally strong traditions)
3) The written court rulings regarding the constitution
that help us interpret the written part.
Constitution
Unwritten Portion
Constitution Act 1867
‘Canada would be federally united
with a constitution similar in
principle to that of the UK.’
-Prime minister, Cabinet...
-defined the roles & Responsibilities
of the levels of government
and the structure of the government
Constitution Act 1982
Court Decisions
Contains the
-What exactly do certain sections mean?
Canadian Charter Of Rights and Freedoms
-How do we interpret certain sections or words?
and the Amending formula and …more
-What would happen in a case like this?...
-JCPC has rendered over 120 decisions
regarding constitutional powers.
Canada’s Constitution
Very hard
to change
(very rare)
Federal and Provincial laws:
Firearms Act
Landlord -Tenant Act
Funeral, burial and cremation Act
Safe Drinking Water Act
Fuel Tax Act
Canada Elections Act
Controlled Drugs and Substances Act
Often change
Funding of religious private
schools
• Constitution Act 1867 guarantees government
funding to Catholic schools (or Protestants if that is
the minority group), to the exclusion of any other
groups.
• Ontario, Alberta, Saskatchewan, NWT.
• http://www.cbc.ca/news/story/1999/11/05/schools9
91105.html`
• http://www.cbc.ca/ontariovotes2007/features/feat
ures-faith.html
The Municipal Level Of
Government in the Constitution
• In 1867, 75% of Canadians
lived in rural areas.
• Today, over 75% live in
cities.
Toronto + Montreal + Vancouver = 35% of population
• Cities do not have constitutional rights.
• BNA assigned the responsibility of cities
to the Province.
• Provinces enacted municipal acts, which:
-allowed municipalities to have jurisdiction over
certain services.
-levy (impose) taxes and service charges.
- The ability of a city to pass a by-law (strictly
limited by the provincial legislation.)
Statute of Westminster 1931
• After WW1, Imperial conferences were held, where
leaders of Imperial nations would meet and discuss
issues of common concern.
• Statute of Westminster 1931 was passed by British
Parliament.
– It declared Canada, South Africa, New Zealand and Australia
as independent in legislative authority and foreign policy.
• Newfoundland remained a British dominion until it
joined Canada in 1949.
• Also in 1949, we stopped appealing to the JCPC and
the Supreme Court of Canada became the final court of
appeal.
• The Supreme Court Act is an Act passed by the Parliament of
Canada which established the Supreme Court of Canada. It was
originally passed in 1875 as the Supreme and Exchequer Courts Act.
At the time, the Supreme Court was not the supreme authority on
Canadian law, as Supreme Court cases could still be appealed to the
Judicial Committee of the Privy Council.
• The Supreme Court Act is not a part of the Constitution of Canada
but rather was merely within Parliament's ability to pass by virtue of
section 101 of the Constitution Act, 1867. The Supreme Court Act
also was not named as part of the Constitution during patriation in
1982, although the Court itself is mentioned in the amending formula.
As the Court is defined in a regular statute, in theory, the Court could
be abolished by an act of the federal government. However, in
practice, the Court is so well entrenched into the fabric of the
government that jurists see the abolition of the Court to be extremely
unlikely.
Patriation of the Constitution
• The build up…
• Until 1982, our constitution was still a
British statute and changes to it had to be
approved by British Parliament.
• Canada had become independent in many
ways, including legislative power (BNA Act
1867), foreign policy (Statute of
Westminster, but…
Why did the constitution remain
in British control for over 100
years?
• We left it with Britain because An
amending formula (a process for making
changes to the constitution once it came
to Canada) could not be agreed on by the
provinces.
• Pierre Trudeau, elected in 1968, wanted to reform
Canadian politics, and the constitution in
particular.
• In 1971, the Victoria Charter was drafted by
Trudeau (and some other important people.)
• The Victoria charter was a (failed) attempt at
constitutional reform and included a mini bill of
rights (like a Charter)
• It was initially accepted by all provinces… but
was then rejected by Quebec at the last minute.
Separatism
• Throughout these times of
constitutional reform, the flame of
separation -that never really dies
in Quebec- was rising once again.
A little Quebec Politics
Quebec political
party at Federal
level.
Quebec Political
party at
Provincial level.
• In 1976, Parti Quebecois came into power in the
province of Quebec. The Parti Quebecois is a political
party like the Liberals, Conservatives or the NDP.
• The priority of the Parti Quebecois (and the Bloc
Quebecois) is Independence for Quebec.
Federal Government (only 1, Ottawa)
Green Party
NDP
Liberals
Bloc Quebecois
Marijuana Party
Conservatives
Independents
Provincial Governments (10, provincial capitals)
NDP
Liberals
Conservatives
Parti Quebecois
(only in Quebec)
Independents
• In May 1980, Pierre Trudeau and
his Majority Government, led
the fight against the PQ
referendum on:
Sovereignty Association:
Quebec would be a sovereign
(An independent nation in all
aspects of law making) but
would still be part of Canada
on an economic level.
...sounds good…
Referendum Results
• Under the strong
leadership of Pierre
Trudeau, the “NO”
side won the
referendum by
almost 2-1. (67%)
• This is impressive because sovereignty
association is easy to agree to because you
would still be part of Canada. Like having your
cake and eating it too,
• yet the ‘No’ side still won which meant
Quebecers really wanted to be part of Canada
under Trudeau’s leadership.
• In his speeches leading up to the
referendum, Trudeau promised a
‘renewed federalism’
(what is federalism?)
• Keep track, we’re in 1980 now…
• The fight to patriate the constitution
and entrench a ‘Bill of Rights’ is still
going.
• Months of debate about politics and the
Canadian public followed.
• Finally in November 1981, the Feds and
9/10 provinces agreed to an amending
formula and a Charter of Rights and
Freedoms.
• 1 of 10 provinces was not pleased.
• Quebec felt left out of the talks and felt
that its’ concerns/priorities were ignored
and didn’t want to sign.
However, 9/10 was enough …
• On April 17, 1982, over 115 years
after being passed in British
Parliament, the constitution was
patriated.
• Included:
-CCRF
-Amending formula
• Canada was now fully independent in
all areas of law.
Amending the Constitution
• Before 1982, modifying the Constitution meant
amending the British North America Act, 1867. Unlike
most constitutions, however, this Act had no
amending formula; changes were enacted through
acts of the Parliament of the United Kingdom.
• To make an amendment, the federal government of
Canada would issue an address to the UK
government requesting an amendment
• These in turn, always passed with minimal debate
from British politicians.
Amending Formula
• Most kinds of amendment can be passed only if
adopted by the House of Commons, the Senate, and a
two-thirds majority of the provincial legislative
assemblies representing at least 50% of the national
population.
• This formula, which is outlined in section 38 of the
Constitution Act, 1982, is sometimes referred to as the
"general amendment procedure" and is known more
colloquially as the "7/50 formula."
Pierre Trudeau and the Queen
1982
just 1 year later…
1983
• In 1983, Conservative leader Brian Mulroney
became the new Prime Minister of Canada.
• Part of his agenda was to
appease Quebec since many
people felt the whole
Constitutional situation was
flawed since Quebec didn’t sign.
1987
• The Meech Lake Accord (named after
Meech lake near Ottawa) was a package of
Constitutional amendments designed to get
Quebec on board.
• Included was a designation of ‘Distinct
Society’ for Quebec.
• All the provinces agreed to the ML accord, but...
Concerns?
• Trudeau, although no longer PM, still was a
voice, and harshly criticized the ML accord. He
believed that granting Quebec a ‘distinct
society status’ was unnecessary and dangerous.
• Aboriginal groups felt their needs and
concerns were being ignored. Again.
• Remember video clip? “Aboriginal rights
dropped”
Meech lake failed…but why?
• When something like this is proposed, it has
to be ratified
in a certain time frame.
Meech lake had 3 years…
• According to the laws of the province of
Manitoba, before the province could give its
vote to a proposal like this, Public Hearings
had to be held.
• The public hearings could be waived IF:
All members of the Manitoba assembly agreed to waive them.
• Elijah Harper, an aboriginal member of the
Manitoba assembly did not agree to waive the
public hearings.
• Manitoba could not give its vote in the allotted
time frame time and the Meech Lake accord
failed to be ratified in time.
(Newfoundland also had some timing issues.)
• Aboriginals voting for Harper, served?
1992
The Charlottetown Accord
• Named after the Place where talks were held
(Charlottetown, PEI)
• Mulroney didn’t give up and tried again.
• Included abolishment of the longstanding:
Power of disallowance:
The feds could strike down a piece of legislation
passed by a provincial Gov. within one year of its
passing. (last used in 1943)
• Aboriginal concerns were addressed,
including some Aboriginal self-governing.
• Included giving more power to provinces in
the appointment of senators.
• Charlottetown Accord failed, defeated in 6
provinces.
1995
Quebec Referendum II
• 2nd referendum in 15 years.
• Quebec was getting really frustrated at the
constant failures of meeting their needs.
• This referendum was for full out sovereignty.
Quebec would be completely independent
• This is a huge step (risk). Do you expect
more, or less people to vote for seperation
this time, over the less risky option in
1980?
The No side won with 50.56% of the
vote.
Who Controls Tobacco Advertising?
• Ultra vires of federal jurisdiction
• Violation of Charter (freedom of
expression) which includes the right to say
nothing.
• RJR MacDonald & Imperial Tobacco
• Tobacco advertising in Canada
“Who Can Make Laws About
Guns?”
• Reference to Firearms Act (Can.), 2000 SCC 31
2 Separate Issues? …
-Jurisdiction
-Purpose
Are the 2 issues related?...does one determine the other?
• Figuring out the
•
-Purpose (what will this law accomplish?)
• This really helps decide the issue of Jurisdiction!
•
depending on what the law does, it might be classified
as criminal law or as property law …
• Does the law deserve to be classified as
criminal law? Does it reduce crime?
• Should the law be property law since it basically
regulates property ownership
(and maybe statistically doesn’t achieve any criminal law
purpose)
• Gun Politics in Canada
Pith and substance:
The main purpose of the law as opposed to
its incidental effects.
(What the law is truly set out to do, not what
it happens to accomplish on the side.)
If, after thorough analysis it is decided that
the law is, in pith and substance, to be say
criminal law or for the good governing of the
country, it would be decided that it is federal
Jurisdiction.
If, after thorough analysis it is decided that
the law is, in pith and substance, to be civil
law or regulation of property, it would be
decided that it is provincial jurisdiction.
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Amend / Amendments
“Separate Schools”
Patriate
British North America Act
Statute of Westminster
Imperial conferences
Separatism
Sovereignty
Victoria Charter
Entrenchment
Meech Lake Accord
Ratify
By-law
Referendum
JCPC