Canadian Constitutional Law

Amending Formula 7/50% Confederation 1867 All added in 1982

What is a Constitution? Defines the framework for a country’s (or any organization’s) system of government and judicial system. “The rules that must be followed when making laws or running government” (Najam)

There are 3 “parts” to the Constitution of Canada: 1) The written documents (Constitution Act 1867 a.k.a. British North America Act ) (Constitution Act 1982 a.k.a. Canada Act (Charter) ) 2)The unwritten conventions and ways of government (legally strong traditions) 3) The written court rulings regarding the constitution that help us interpret the written part.

Constitution Constitution Act defined the roles & Responsibilities of the levels of government and the structure of the government Constitution Act 1982 Contains the Canadian Charter Of Rights and Freedoms and the Amending formula and …more Unwritten Portion ‘Canada would be federally united with a constitution similar in principle to that of the UK.’ -Prime minister, Cabinet... Court Decisions -What exactly do certain sections mean? -How do we interpret certain sections or words? -What would happen in a case like this?... -JCPC has rendered over 120 decisions regarding constitutional powers.

Firearms Act Safe Drinking Water Act Fuel Tax Act Landlord -Tenant Act Funeral, burial and cremation Act Controlled Drugs and Substances Act Canada’s Constitution Often change Very hard to change (very rare) Federal and Provincial laws: Canada Elections Act

Funding of religious private schools Constitution Act 1867 guarantees government funding to Catholic schools (or Protestants if that is the minority group), to the exclusion of any other groups. Ontario, Alberta, Saskatchewan, NWT html` html ures-faith.htmlhttp:// ures-faith.html

The Municipal Level Of Government in the Constitution In 1867, 75% of Canadians lived in rural areas. Today, over 75% live in cities. Toronto + Montreal + Vancouver = 35% of population

Cities do not have constitutional rights. BNA assigned the responsibility of cities to the Province.

Provinces enacted municipal acts, which: -allowed municipalities to have jurisdiction over certain services. -levy (impose) taxes and service charges. - The ability of a city to pass a by-law (strictly limited by the provincial legislation.)

Statute of Westminster 1931 After WW1, Imperial conferences were held, where leaders of Imperial nations would meet and discuss issues of common concern. Statute of Westminster 1931 was passed by British Parliament. –It declared Canada, South Africa, New Zealand and Australia as independent in legislative authority and foreign policy. Newfoundland remained a British dominion until it joined Canada in Also in 1949, we stopped appealing to the JCPC and the Supreme Court of Canada became the final court of appeal.

The Supreme Court Act is an Act passed by the Parliament of Canada which established the Supreme Court of Canada. It was originally passed in 1875 as the Supreme and Exchequer Courts Act. At the time, the Supreme Court was not the supreme authority on Canadian law, as Supreme Court cases could still be appealed to the Judicial Committee of the Privy Council. The Supreme Court Act is not a part of the Constitution of Canada but rather was merely within Parliament's ability to pass by virtue of section 101 of the Constitution Act, The Supreme Court Act also was not named as part of the Constitution during patriation in 1982, although the Court itself is mentioned in the amending formula. As the Court is defined in a regular statute, in theory, the Court could be abolished by an act of the federal government. However, in practice, the Court is so well entrenched into the fabric of the government that jurists see the abolition of the Court to be extremely unlikely.

Patriation of the Constitution

The build up… Until 1982, our constitution was still a British statute and changes to it had to be approved by British Parliament. Canada had become independent in many ways, including legislative power (BNA Act 1867), foreign policy (Statute of Westminster, but…

Why did the constitution remain in British control for over 100 years? We left it with Britain because An amending formula (a process for making changes to the constitution once it came to Canada) could not be agreed on by the provinces.

Pierre Trudeau, elected in 1968, wanted to reform Canadian politics, and the constitution in particular. In 1971, the Victoria Charter was drafted by Trudeau (and some other important people.) The Victoria charter was a (failed) attempt at constitutional reform and included a mini bill of rights (like a Charter) It was initially accepted by all provinces… but was then rejected by Quebec at the last minute.

Separatism Throughout these times of constitutional reform, the flame of separation -that never really dies in Quebec- was rising once again.

Quebec political party at Federal level. Quebec Political party at Provincial level. A little Quebec Politics

In 1976, Parti Quebecois came into power in the province of Quebec. The Parti Quebecois is a political party like the Liberals, Conservatives or the NDP. The priority of the Parti Quebecois (and the Bloc Quebecois) is Independence for Quebec.

Provincial Governments (10, provincial capitals) Liberals Conservatives Parti Quebecois (only in Quebec) NDP Independents Liberals Conservatives NDP Bloc Quebecois Green Party Federal Government (only 1, Ottawa) Marijuana Party Independents

In May 1980, Pierre Trudeau and his Majority Government, led the fight against the PQ referendum on: Sovereignty Association: Quebec would be a sovereign (An independent nation in all aspects of law making) but would still be part of Canada on an economic level....sounds good…

Referendum Results Under the strong leadership of Pierre Trudeau, the “NO” side won the referendum by almost 2-1. (67%)

This is impressive because sovereignty association is easy to agree to because you would still be part of Canada. Like having your cake and eating it too, yet the ‘No’ side still won which meant Quebecers really wanted to be part of Canada under Trudeau’s leadership.

In his speeches leading up to the referendum, Trudeau promised a ‘renewed federalism’ (what is federalism?) Keep track, we’re in 1980 now… The fight to patriate the constitution and entrench a ‘Bill of Rights’ is still going.

Months of debate about politics and the Canadian public followed. Finally in November 1981, the Feds and 9/10 provinces agreed to an amending formula and a Charter of Rights and Freedoms. 1 of 10 provinces was not pleased.

Quebec felt left out of the talks and felt that its’ concerns/priorities were ignored and didn’t want to sign. However, 9/10 was enough …

On April 17, 1982, over 115 years after being passed in British Parliament, the constitution was patriated. Included: -CCRF -Amending formula Canada was now fully independent in all areas of law.

Amending the Constitution Before 1982, modifying the Constitution meant amending the British North America Act, Unlike most constitutions, however, this Act had no amending formula; changes were enacted through acts of the Parliament of the United Kingdom. To make an amendment, the federal government of Canada would issue an address to the UK government requesting an amendment These in turn, always passed with minimal debate from British politicians.

Amending Formula Most kinds of amendment can be passed only if adopted by the House of Commons, the Senate, and a two-thirds majority of the provincial legislative assemblies representing at least 50% of the national population. This formula, which is outlined in section 38 of the Constitution Act, 1982, is sometimes referred to as the "general amendment procedure" and is known more colloquially as the "7/50 formula."

Pierre Trudeau and the Queen 1982

just 1 year later…

In 1983, Conservative leader Brian Mulroney became the new Prime Minister of Canada. Part of his agenda was to appease Quebec since many people felt the whole Constitutional situation was flawed since Quebec didn’t sign. 1983

The Meech Lake Accord (named after Meech lake near Ottawa) was a package of Constitutional amendments designed to get Quebec on board. Included was a designation of ‘Distinct Society’ for Quebec. All the provinces agreed to the ML accord, but

Trudeau, although no longer PM, still was a voice, and harshly criticized the ML accord. He believed that granting Quebec a ‘distinct society status’ was unnecessary and dangerous. Aboriginal groups felt their needs and concerns were being ignored. Again. Remember video clip? “Aboriginal rights dropped” Concerns?

Meech lake failed…but why? When something like this is proposed, it has to be ratified in a certain time frame. Meech lake had 3 years… According to the laws of the province of Manitoba, before the province could give its vote to a proposal like this, Public Hearings had to be held. The public hearings could be waived IF : All members of the Manitoba assembly agreed to waive them.

Elijah Harper, an aboriginal member of the Manitoba assembly did not agree to waive the public hearings. Manitoba could not give its vote in the allotted time frame time and the Meech Lake accord failed to be ratified in time. (Newfoundland also had some timing issues.) Aboriginals voting for Harper, served?

1992 The Charlottetown Accord Named after the Place where talks were held (Charlottetown, PEI) Mulroney didn’t give up and tried again. Included abolishment of the longstanding: Power of disallowance: The feds could strike down a piece of legislation passed by a provincial Gov. within one year of its passing. (last used in 1943)

Aboriginal concerns were addressed, including some Aboriginal self-governing. Included giving more power to provinces in the appointment of senators. Charlottetown Accord failed, defeated in 6 provinces.

1995 Quebec Referendum II 2 nd referendum in 15 years. Quebec was getting really frustrated at the constant failures of meeting their needs. This referendum was for full out sovereignty. Quebec would be completely independent

This is a huge step (risk). Do you expect more, or less people to vote for seperation this time, over the less risky option in 1980? The No side won with 50.56% of the vote.

Who Controls Tobacco Advertising? Ultra vires of federal jurisdiction Violation of Charter (freedom of expression) which includes the right to say nothing. RJR MacDonald & Imperial Tobacco

Tobacco advertising in Canada

“Who Can Make Laws About Guns?” Reference to Firearms Act (Can.), 2000 SCC 31 2 Separate Issues? … -Jurisdiction -Purpose Are the 2 issues related?...does one determine the other?

Figuring out the -Purpose (what will this law accomplish?) This really helps decide the issue of Jurisdiction! depending on what the law does, it might be classified as criminal law or as property law …

Does the law deserve to be classified as criminal law? Does it reduce crime? Should the law be property law since it basically regulates property ownership ( and maybe statistically doesn’t achieve any criminal law purpose )

Gun Politics in Canada

Pith and substance: The main purpose of the law as opposed to its incidental effects. (What the law is truly set out to do, not what it happens to accomplish on the side.)

If, after thorough analysis it is decided that the law is, in pith and substance, to be say criminal law or for the good governing of the country, it would be decided that it is federal Jurisdiction. If, after thorough analysis it is decided that the law is, in pith and substance, to be civil law or regulation of property, it would be decided that it is provincial jurisdiction.

Amend / Amendments “Separate Schools” Patriate British North America Act Statute of Westminster Imperial conferences Separatism Sovereignty Victoria Charter Entrenchment Meech Lake Accord Ratify By-law Referendum JCPC