History of Constitutional Law in Canada

1. History of Constitutional Law in Canada

2. Development of Canadian Constitution • Constitution Act 1982 • Canada given an amending formula – ability • to change our own constitution = complete • independence from Britain • 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

3. 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)

4. 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

5. 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

6. 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/politics/prime-ministers/pierre-elliott-trudeau-philosopher-and-prime-minister/bringing-home-the-constitution.html

7. A written document that sets down all the important rules for how a country operates The Constitution

8. 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

9. Amending Formula Today

10. POGG 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 Federal PowersConstitution Act – 1867 (Section 91)

11. Property and civil rights Marriage ceremonies Police forces and provincial courts Highways and roads Provincial jails hospitals Provincial Powers(Section 92) – Constitution Act - 1867

12. 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 Municipalities

13. Government Bills / Statutes – FederalThe process through which an idea becomes a law First Reading Second Reading Committee Report Stage Third Reading • More discussion and debate in the House of commons • Bill is read • To the House • Of Commons • No discussion • No debate • No Vote • MPs may question and debate new bill • Vote • An Idea • Awareness that • something needs • to change • May begin with • Any MP • Draft up a new • Policy which is • Checked by • Lawyers • This is a bill • Studied clause by clause by a standing committee of MPs from all parties • Public and expert input • Vote and make changes VOTE In H of C Senate • Federal level only • Follows same process (3 readings) - vote • Any changes – sent back to the H of C Royal Assent • Signed by the GG or Queen – turns bill into an ‘act’ which turns it into law

14. 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)

15. 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

16. Recap • 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.