The Canadian Constitution

1. The Canadian Constitution

2. Constitutions

3. What is a constitution? • It is a list of rules which govern the actions of any organization/country. • Your student council has a constitution which stipulates the accepted rules of practice. • Nations have more complex constitutions but the purpose is the same.

4. Characteristics of a Good Constitution • It is easily understood by those to whom it applies. • It is not ignored by those who are elected to power. • It can be changed easily but not too easily.

5. Changing the Rules • A constitution written one hundred years ago cannot always meet modern needs. • Amending formulas must be written into a good constitution. • Amendments must meet the needs of most people in an organization or nation.

6. National Constitutions • These are often complex and lengthy legal documents. • They may, however, be very simple. • Great Britain has an unwritten constitution. • Canada’s constitution is both written and unwritten.

7. The History of Canada’s Constitution

8. SOURCES OF THE CANADIAN CONSTITUTION

9. The 3 main sources of the Canadian Constitution Canada's constitution is based on the British model; the principles governing Canada are not codified in one single document, but can be found in: • Conventions; • Constitutional documents • Common/case law

10. Conventions • Much of Canada’s constitution was unwritten and consisted of British parliamentary traditions and practices. • These were called conventions: unwritten rules followed primarily for reasons of tradition. • Provide the details of how our government operates • i.e. there is no formal written principle of responsible government which states that a non-confidence vote in Parliament must result in calling an election, but it is a CONVENTIONAL rule of parliamentary democracy to do so. • What does this mean? Look at the 2011 budget. • With the opposition parties prevent the federal government’s budget from passing through parliament, PM Harper was compelled, by convention, to ask the Governor General to dissolve Parliament and call a federal election. He was not required to do so.

11. Common Law • Judge-made or case law; • When clarification is required over a constitutional dispute, the courts clarify and interpret what the language of the Constitution means. • Allows the Constitution to adapt and reflect more recent views within Canada, because common law is not written in one document – it is flexible.

12. Constitutional Documents • There are several early Canadian constitutional documents including The Proclamation of 1763 The Act of Union 1840 The British North America Act, 1867 The Quebec Act 1774 The Constitutional Act 1791 The Constitution Act, 1982

13. Royal Proclamation 1763 • Made the common law of England applicable to all British-controlled territory in North America. • Established that the government (Crown) owned all non-privately held land and outlined the relationship between the Crown and Aboriginals – the Crown would control the land, the Aboriginals were allowed to use and occupy the it.

14. Quebec Act of 1774 • Emphasize that English criminal law would be emphasized but allowed the use of the French Civil Code to regulate private matters, which is still in use in Quebec (instead of English common law) • French speakers could hold positions in public office • Impact: 3/9 Supreme Court Justices are appointed from Quebec because of their expertise and experience with the Quebec Civil Code.

15. Constitutional Act 1791 • Divided Quebec into two parts, Upper and Lower Canada • Lower Canada = English Criminal Law and French Civil code • Upper Canada = English Criminal Law and English Common Law

16. Constitutional Act cont’d… • All colonies of North America granted representative government • Only male property owners could vote • Frustration grew over the lack of power the elected officials had • One of major causes of rebellions of 1837 and 1838

17. Act of Union 1840 • recommended that the two Canadas be united as one. • Under unification, both would be represented equally in the Senate and elected assembly • French was widely used in proceedings • Responsible government established – the executive was accountable to an elected legislature • Foundation for the current political model in Canada, with representation by population to be added later.

18. Responsible Government • Executive branch of government is answerable to and must act on the decisions of the legislative branch.

19. The British North America Act, 1867 • One of the most important early Canadian constitutional documents was the British North America Act 1867. • By this act the colonies of Canada (Ontario and Quebec) were united with the colonies of Nova Scotia and New Brunswick. • Created the federation of Canada; • Main document in Canada's Constitution. • Stipulated that Canada would operate as a parliamentary democracy.

20. BNA Act continued…. Made up of 147 sections divided into eight categories: 1.) Terms of Union 2.) Executive Power 3.) Legislative Power 4.) Judicial Power 5.) Revenue and Taxation 6.) Provincial Institutions 7.) Distribution of Legislative Power 8.) Admission of other colonies into Confederation

21. The BNA Act did NOT… • Detail the roles of the Prime Minister and his Cabinet; • include an amending formula.

22. The British North America Act 1867 • This act described the union and set out the rules by which it was to be governed. • The Fathers of Confederation who wrote this document were influenced by many factors including the American Civil War of 1860-1865. • They decided that a strong federal union was best for Canada. John A. MacDonald

23. A Federal Union • This type of union provides for a sharing of power between a central government and the separate governments of individual provinces or states. • A strong federal union places more power in the hands of the central government than it grants to the provinces or states. • A legislative union which did not divide power was rejected as impractical. POWER

24. A Federal Union One Central Government Ten Provincial Governments 8 1 9 10 7 2 6 3 4 5

25. Legislative Unions • Legislative unions do not divide power between a central government and the provinces or states • Great Britain was established as a legislative union of England, Scotland, Wales and Northern Ireland.

26. Why a federal union for Canada? • Our closest neighbor, the United States, had a federal union. • Canada was a large nation with the potential to be much larger. • Canada had two founding peoples with two languages and two cultures. • A legislative union would not have been acceptable to the existing colonies.

27. A Federal Union for Canada in 1867 Canada in 1867 Quebec Ontario Central Government (Ottawa) Nova Scotia New Brunswick

28. Components of the Constitution

29. 1. Jurisdictional Powers (Division of Powers) • Two sections of the BNA act listed the powers of the central government and the provinces. • Section 91 - listed the powers of the central or federal government. • Section 92 and 93 - listed the powers of the provinces. • Each level of government has supreme authority in the area of law over which it has jurisdiction – they are exclusive of one another.

30. Section 91 • The powers of the federal government included National Defense Fisheries Currency Postal System National Issues

31. Section 92 and 93 • This section listed the powers of the provinces including Hospitals Justice Public Lands Education (Sect. 93) Municipal Institutions

32. Residual Powers • The strength of the federal union was indicated in section 91 which gave all left over power, or any item not specifically granted to any level of government, to the federal government. • This covered all matters concerning “… the Peace, Order and Good Government of Canada.” Residual Power

33. The Struggle for Power • Since 1867 the provinces have struggled to take power away from the central government. • This struggle continues today and is often a source of considerable friction between the two levels of government.

34. Intra Viresand Ultra Vires • Sometimes there is disagreement over an area of law that is claimed by both levels of government as their jurisdiction. • When this happens, it is up to the courts to decide which legislature has jurisdiction. • If a legislature is acting within its jurisdiction, the legislature has acted intra viresits authority. • If a legislature is acting outside its jurisdiction, then it has acted ultra viresits authority.

35. Pith and Substance • Most issues dealing with the question of legislative authority fall under both sections 91 and 92. • To determine which level of government has authority in these situations, the courts use the PITH AND SUBSTANCE doctrine. • This doctrine requires the court to look at the overriding purpose or intent of the law in question. • They must determine what the most dominant or important characteristic of the law in question is.

36. The Pith and Substance Doctrine at Work:Reference re Firearms Act (Can) [2000] 1 S.C.R. 783 • In 1995, the Federal government enacted the Firearms Act, which changed the classification of some firearms and required all owners to obtain licences and register their firearms. • The issue: Criminal law falls under the authority of the federal government, while regulating property and licensing is a power given to the provinces under section 92. • The Alberta government challenged the federal legislation in the Alberta Court of Appeal because it believed that the Federal Law (the Firearms Act) was regulating property, which is not considered criminal law. • The case was appealed to the Supreme Court, who ruled that in pith and substance, the Firearms Act was concerned with public safety, which traditionally falls under the scope of criminal law. • Even though the law did affect regulation and licensing of property, a provincial responsibility, the purpose of the Act was to address the misuse of firearms and their potential risk to public safety. • DECISION: the law was upheld.

37. 2. Parliamentary Democracy • The fundamental principles of our Constitution are upheld by federal and provincial governments that are responsible and accountable to the people; • General features: • General election every 5 years; • The party with the most seats forms the government; • The leader of the winning party becomes the Prime Minister; • The opposition is there to hold the government accountable • The Prime Minister appoints a Cabinet from elected party members; • Bills are presented by the government to Parliament • The Head of State is the British Monarch (the Queen) who is represented by the Governor-General (whose role is primarily ceremonial).

38. 3. The 3 Branches of Government • The Executive • The Prime Minister and his/her Cabinet Ministers • The Governor-General is the symbolic head; • Responsible for the day-to-day management and operation of the government.

39. Judicial Branch • An independent 3rd party to settle disputes or clarify the law; • Non-interference from 2 other branches (allows for the rule of law, which is a safeguard against the exercise of arbitrary government action) • If government officials could interfere or pressure court officials, the public would have no guarantee that the law was being applied fairly and evenly. • Once appointed, judges cannot be removed by the government.

40. Legislative Branch • Responsible for making our laws; • Only a democratically elected parliament can shape our public policy. • Consists of: • Members of Parliament (MPs) who are elected and Senators, who are appointed and not based on representation by population (providing a regional counterbalance to the dominance of the provinces with a higher population). • Problem: the Senate is UNELECTED, and has the power to veto the will of the elected House, which conflicts with the principles of democracy.

41. Legislative Supremacy • The ultimate authority to make and unmake law in Canada resides with the federal or provincial parliament under whose jurisdiction the law falls. • If citizens feel that a law is wrong, then it is there right to lobby the government to amend that law.

42. Constitutional Patriation

43. Amending the BNA Act of 1867 • The British North America Act was a British law enacted by the British government. • This meant it could only be changed by the British Parliament. • This was a complex process and resulted in few significant amendments.

44. The Statute of Westminster 1931 • By this British law Canada became a self governing dominion. • This meant that laws passed by the Canadian government could not be overturned by Britain. • It also meant that British law no longer applied in Canada.

45. The Winds of Change • It was unusual for a sovereign and independent nation like Canada to have a foreign constitution. • The growth of nationalism in Quebec was a catalyst to change this situation. • The Liberal government of Pierre Trudeau finally undertook this difficult task and achieved patriation in 1982.

46. Constitutional Patriation 1982 • To patriate means to bring home. • The process required that the British government revoke the BNA Act of 1867. • It further required that Canada enact its own written constitution.

47. What problems were faced by the Trudeau government? • The patriation discussions evolved around: • an amending formula so Canada could change its own Constitution; • Federal-Provincial agreement in Canada • Growing concerns over Quebec nationalism and their desire to separate • The commitment of Prime Minister Trudeau to protect human rights with the entrenching of the Canadian Charter of Rights and Freedoms to ensure their protection. • To date, the Charter has had the GREATEST impact on Canadian law, Pierre Trudeau

48. Federal-Provincial Disagreement • The provinces and the central government had difficulty finding any common ground to achieve Mr. Trudeau’s goal of a patriated constitution. • The political leaders of each province wanted to ensure that new constitutional arrangements were advantageous to them.

49. Quebec Separation • Quebec politicians believed the federal structure was too controlling over Quebec culture and interests, and believed that separation was the only way these issues could be solved. • Trudeau promised that if the Separation referendum was defeated in 1980, he would work to meet Quebec's concerns

50. The Amending Formula Amending Formula • It was necessary to have an effective way by which the constitution could be changed. • Both the provinces and the central government wanted to ensure that the wording of the amending formula protected their respective interests.