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British North America Act, 1867

British North America Act, 1867. Ordinary Act of UK Parliament Defined institutions of government, e.g., Senate, Governor General, House of Commons, Provincial Legislatures Distribution of powers and establishment of jurisdiction – e.g. provinces & education No bill of rights

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British North America Act, 1867

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  1. British North America Act, 1867 • Ordinary Act of UK Parliament • Defined institutions of government, e.g., Senate, Governor General, House of Commons, Provincial Legislatures • Distribution of powers and establishment of jurisdiction – e.g. provinces & education • No bill of rights • Most constitutional questions re: jurisdiction

  2. Some Charter History • Much opposition to idea of adopting a Charter • Revolutionary idea: Westminster model and parliamentary supremacy replaced with constitutional democracy and judicial review • Constitutional legality of Trudeau govt’s plan to implement Charter challenged in “Patriation Case”

  3. Reference Re Resolution to Amend the Constitution of Canada (1981) Claim: Patriation unconstitutional owing to lack of consent of all parties whose power affected – provincial & federal govt’s

  4. British North America Act, 1867 BNA Act • No amending formula • Ordinary act of UK Parliament • Thus, no means available to Canada to amend/alter except to make request to UK Parliament to make desired changes • Colonial legacy

  5. Questions • (1) Was it unconstitutional for Trudeau government to request the UK parliament to “patriate” the Constitution of Canada without provincial assent? • (2) If provincial assent required, was unanimous assent required?

  6. Answers • Yes, according to constitutional convention, but not constitutional law. • (2) Unanimous assent not required, but “a substantial measure” of provincial assent required

  7. Reasons for Judgment • The Constitution of Canada = Constitutional Law & Constitutional Conventions (Dicey) • Constitutional Law = Statutory & Common Law rules

  8. Constitutional Conventions • unwritten social rules • based on non-judicialcustom and precedent • regulate activities of parts of the state: e.g. executive, legislative and judicial branches • sometimes reduced to written word

  9. Constitutional Conventions, cont’d • not enforceable by Courts • no formal legal sanctions for breach • usually political sanction (e.g. removal of GG from office) • generally circumscribe “wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all.”

  10. Reasons for Judgment, cont’d • Convention existed requiring assent of provincial govt’s on matter affecting provincial powers • Adding Charter significantly affected provincial powers • Therefore “substantial measure” of provincial assent required

  11. Reasons for Judgment, cont’d • SCC did not define “substantial” • Trudeau government assumption: assent of all provinces except one satisfied criterion of substantial assent

  12. Reasons for Judgment, cont’d • Quebec later challenged assumption, but point was moot • Charter already “patriated”

  13. Pre-Enactment Concerns Re: Charter of Rights • Substituting Parliamentary supremacy with entrenched rights against gov’t • Judicial review by unelected judges • Unsettles too much settled law • Compromise: Sec 1 & 33

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