Government and Statute Law
Chapter 3
Laws have to……….
Meet legal challenges and approval of
citizens.
They must be enforceable.
Should present a balance between
competing interests.
Must be constitutional!
Should do what they are intended to do.
Be within the jurisdiction of the authority
making the law.
Canada’s Constitution
The British North America Act was passed by the
British parliament in 1867 and was proclaimed
into law on July 1st, Canada’s birthday!
It established Canada as a country with John A.
Macdonald as its first Prime Minister.
While the BNA act recognized Canada as a
separate political entity, it still couldn’t make
changes without Britain’s approval.
Federal System
While deciding what system to use in Canada,
the Federal system seemed the best choice.
Under a Federal System, the responsibilities for
governing were divided between two levels of
government, the central government and the
provincial government.
Each government had their own jurisdictions but
the Feds could override a provincial law if it was
seen as not in the best interest of all Canadians.
Because it came from the BNA act, it includes
the monarch as the head of state and the
principle of the rule of law.
Section 91 of the BNA act outlined the
federal government’s powers, usually
matters that applied to everyone, such as
postal service or currency.
Section 92 outlined the provincial
governments powers, such as education.
Provinces delegated their responsibilities
to municipal governments for local
matters.
Federal and Provincial
Banking
Foreign affairs
Criminal Law
Public debt
Defence
Trade and commerce
Postal service
Penitentiaries
Education
Health care
Labor and Trade
unions
Property and civil
rights
Compensation to
injured workers
Marriage
Doctrine of Ultra Vires
Government may make laws only in its
own jurisdiction.
Called Intra Vires, within the power of
government to pass laws.
If a government attempts to pass laws out
of its jurisdiction it would be said to be
Ultra Vires, beyond the power of
government to pass laws.
Patriating the Constitution
As you know, the BNA act was Canada’s constitution,
but it had problems, the biggest of which was Canada’s
independence from Britain.
In 1931, the Statute of Westminster was passed,
greatly extending Canada’s law-making power. Now
Canada could make its own laws and they could not be
overruled by Britain.
The BNA act limited Canada’s independence, did not
make mention of a Prime Minister’s office, was unclear
regarding jurisdiction over resources and did not allow
for responsibilities that did not exist in 1867.
The federal and provincial governments agreed to share
the cost of areas not identified in the act.
For all these reasons, and the fact that the act did not
protect civil liberties, the constitution had to be brought
home!
Prime Minister Pierre Elliot Trudeau wanted to Patriate or
bring home the constitution. After several attempts to get
the provinces to agree, finally, without the approval of
Quebec, the Constitutional Act of 1982 was born. It
included the BNA act but had four new key elements…..
1. A principle regarding the equalizing of services across
Canada.
2. A clearer interpretation of who was responsible for
control and management of natural resources.
3. A formula indicating what terms would be necessary to
make future amendments to the constitution.
4. Canadian charter of rights and freedoms was
included, guaranteeing individual rights and freedoms.
It also made provisions for the Principle of
Equalization, which provides for equal access to
essential services for all Canadians.
Finally, an amending formula was agreed upon which
required the approval of Parliament plus two-thirds of the
provinces representing 50% of the population.
Government and Lawmaking
The executive branch of government is
responsible for carrying out the government’s
plans and policies.
It consists of the prime Minister, the Cabinet and
the public or civil service.
Members of cabinet are elected representatives
appointed by the Prime Minister to positions of
responsibility.
The executive branch at the provincial level
works much the same way.
The Legislative Branch
Refers to the branch of government that has the
power to make, change and repeal laws.
Federally, this is the House of Commons and the
Senate.
Provincially, it the Legislative assembly.
The Governor General, Michaelle Jean and the
Lieutenant Governor, Mayann E. Francis, are
appointed to represent the Queen.
The Judiciary
The branch of government responsible for
presiding over Canada’s court system.
It is independent of the other two branches.
Made up of judges who adjudicate disputes,
interpret the law and decide on punishments.
Apolitical and independent!
Highest court is the Supreme Court of Canada.
From A Bill To A Statute
Only the government can pass laws! The laws
must be constitutional and should reflect public
concerns and government policies. A proposed
piece of legislation is called a Bill.
Royal commissions, advisory boards, interest
groups and Ministers’ initiatives all can have an
influence on proposed legislation.
Here are the steps involved in passing a Bill into
law……..
A bill introduced by a Cabinet Minister is called a
government or public bill.
A bill may also be introduced by an elected
representative who does not hold a Cabinet
post. Then it’s called a Private Members Bill.
Government bills almost always pass if the
government has a majority in the house. It’s
much more difficult for a private members’ bill
because it may not have government support.
Here are the steps involved………
1. Draft legislation is put together by the
government department involved.
2. First reading in the house, where the bill is
introduced and its purpose is discussed. The bill
is printed and distributed.
3. Second reading, where the principle of the bill is
debated, each member has a chance to comment and
then the bill may be referred to committee for revision
and further examination.
4. Third reading, debate is restricted to the contents of
the bill.
5. The bill goes to the Senate where the same steps take
place. The Senate also checks that the bill does what is
intended, is not redundant and is constitutional.
6. Bill is returned to the house for a vote.
7. If the bill passes it goes to the governor general for
Royal assent and proclamation.
8. The bill is now a statute or act of parliament, and of
course, a law!
9. Provincial laws follow the same process, but with no
Senate, once its passed it goes directly to the Lieutenant
Governor.
Lobby Groups
Lobby groups, people who try to influence legislators in
favor of their cause, can be very influential in getting
laws changed or new laws passed.
MADD, and The Coalition for Gun Control, are two good
examples of groups who have influenced government to
change laws.
Sometimes specific national problems may require a
government investigation. Often this involves a Royal
Commission, which is appointed by the federal Cabinet
to conduct impartial investigations. An example would be
the Royal Commission on Canada’s blood supply.
A report from a royal commission is referred to as a
white paper.