History of
Constitutional Law
in Canada
Development of Canadian
Constitution
Constitution Act 1982
1. Canada given an amending formula – ability
to change our own constitution = complete
independence from Britain
2. Canadian Charter of Rights and Freedoms
Our road to
independence
Supreme Court of Canada – 1949
•Established and becomes Canada’s highest court
Statute of Westminster – 1931
•British Statute – Giving Canada control over its foreign affairs
BNA Act - 1867
(British North American Act) – British Statute
•Dominion of Canada formed
•British Privy Council – Canada’s highest court
•Little control of our affairs (foreign)
Defined areas of federal
and provincial jurisdiction
(federal more powerful) – only 2
BNA Act - 1867
• British North American
Act – 1867
• Outlined the powers of
the Canadian government
to make laws and
establish the levels of
government for making
law (federal / provincial)
British North America Act
• Each level (federal and provincial) has exclusive control over
their responsibilities, but the federal government could
overrule a provincial law if in best interests of all Canadians
• Also, residual power goes to federal government
• Included:
• UK parliament
• Monarch (Queen/King of Britain) of head of state
• Principle of Rule of Law
Patriating the Constitution
• Statute of Westminster (1931) – legislation passed in UK
amending (changing) BNA Act that extended Canada’s law
making powers so that they could make laws independently,
even if they contradicted UK law & allowed Canada to make
agreements with other countries
• Problem – as long as BNA Act in UK, Canada had to ask UK to
add laws to constitution
• Another problem – confusion with division of powers &
resulting disputes
Bringing Home the
Constitution - 1982
• Canada could not change the BNA Act, 1867
since it lacked an amending formula –
(being a British Statute)
• The Constitution Act – In addition to the
amending formula, the Canadian Charter
of Rights and Freedoms makes up the
Constitution Act, 1982.
• Pierre Trudeau re-patriated (brought home)
the Constitution without support of all
provinces
• all except Quebec agreed in 1982
http://www.cbc.ca/archives/categories/politi
cs/prime-ministers/pierre-elliott-trudeauphilosopher-and-prime-minister/bringinghome-the-constitution.html
The Constitution
• A written document that sets down all the important rules for how a
country operates
The Canadian Charter of Rights and
Freedoms
• Guarantees rights to
all Canadians (since
1982)
• Citizens can make a
case that their rights
are being denied
• Rights vs. privileges
• Driving is a privilege,
earned, and can be
revoked
Amending Formula Today
Amendment
Who must agree
Changing
The federal government and
all ten provinces
the roles of the Queen, GG, L-G
Changing the use of English or French
nationally
Changing the Supreme Court
Changing the amending formula
Changing
the borders between provinces
The federal government and
Changing the use, provincially, of English or the affected provinces
French

Changing the Senate or the H of C
The federal government

All other changes
The federal government and
seven of the ten provinces
representing at least 50% of
the population
Federal Powers
Constitution Act
– 1867 (Section 91)
• POGG
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Gave federal government power to enact laws that were needed to maintain POGG
2 main powers:
• any genuinely new power not set out in the BNA act
• veto provincial powers in national emergency
Criminal Law
Unemployment insurance
Banking, currency, and coinage
Federal penitentiaries
Marriage and divorce
Postal services
Aboriginal peoples and their land
Provincial Powers
(Section 92) – Constitution Act - 1867
•
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Property and civil rights
Marriage ceremonies
Police forces and provincial courts
Highways and roads
Provincial jails
hospitals
Municipalities
• Not outlined in the Constitution Act, 1982
• Creations of the province – subject to provincial law/rule
• Sewage and garbage disposal
• Roads, sidewalks, snow removal
• Street lighting, parks
• Libraries, public transportation, pools and arenas
• Local police and firefighting
Government Bills / Statutes – Federal
The process through which an idea becomes a law
First Reading
An Idea
•Awareness that
something needs
to change
•May begin with
Any MP
Second Reading
•Bill is read
To the House
Of Commons
•MPs may
question and
debate new bill
•No discussion
•Vote
•No debate
•This is a bill
•Studied clause
by clause by a
standing
committee of MPs
from all parties
•Public and expert
input
•No Vote
•Draft up a new
Policy which is
Checked by
Lawyers
Committee
Report Stage
Royal Assent
•Signed by the
GG or Queen
– turns bill into
an ‘act’ which
turns it into law
•Vote and make
changes
Third Reading
•More
discussion and
debate in the
House of
commons
VOTE
In H of C
Senate
•Federal level
only
•Follows same
process (3
readings) - vote
•Any changes –
sent back to the
H of C
Government Bills - Provincial
•Similar process to federal process
•Occurs in the Provincial Legislative Assembly (Ontario –
Queen’s Park)
•Involves MPPs (3 readings)
•Does not involve the Senate (0 readings)
•Must be signed by the Crown (Lieutenant-governor)
Government Bills / Bylaws Municipal
• Similar process to that of a federal bill
• Occurs at a City Hall
• City councilors (Elected City Council)
• Signed by the mayor
Recap
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How did the British North American Act lay down the structure for the
Canadian Constitution?
Discuss the importance of the Statute of Westminster.
Why did it take so long for Canada to get control of its own constitution?
Distinguish between the Constitution Act, ,1867, and the Constitution Act,
1982.
Distinguish between sections 91 and 92 of the Constitution Act, 1867 by
discussing the constitutional division of power
What is the third level of government in Canada? What types of laws does it
pass?
Why is the House of Commons the most powerful part of Parliament?
What are the responsibilities of Cabinet ministers?
Compare the passage of federal legislation with that of provincial legislation.
How are they similar? How are they different?
Think of a change you would like to see in the law. Describe the process by
which this idea could become a reality. Clearly identify the steps needed to
pass a bill into a law.