1. THE CANADIAN FEDERALISM

2. BRITISH NORT AMERICA ACT 1867
a British statute creates the federal dominion of Canada
Canada is a British colony subordinate to the UK in international affairs and subject to imperial limitations in local affairs:
Imperial Parliament can approve statutes having legal effects in Canada
British Government has the power to disallowance and reservation
The Queen appoints the Governor General

3. BRITISH NORT AMERICA ACT 1867
does not codify all the constitutional rules of the dominion
no amending clause
no bill of rights
the parliamentary government is regulated by constitutional conventions* and not by written rules

4. CANADA ACT 1982
A British statute that made some important “repairs” to the Canadian constitutional law
introduces an amending formula
introduces a (constitutional) bill of rights (Charter of rights and freedoms)
ends the authority over Canada of the UK

5. sect. 52 of the constitution Act
The constitution of Canada includes
The Canada Act 1982
The acts and orders referred to in the Schedule [among them the BNA 1867]
“The constitution of Canada is the supreme law of Canada and any law inconsistent with the provisions of the Constitution is of no force or effect” [supremacy clause]
Amendments to the constitution of Canada shall be made only in accordance with the amending formula [entrenchment clause]

6. the federal parliamentary government
parliamentary government > the Government is responsible to the elective Assembly [confidence rule]
Prime Minister > Leader of the majority party
Head of state > Queen represented by the Governor General

7. constitutional conventions
rules of the constitution
rules that are not enforced by the courts (> not legal rules), but that the courts can recognize
rules considered obligatory by the officials to whom they apply
can develop from
usage
an agreement between all the relevant officials

8. the executive branch Prime Minister > Leader of the majority party
Ministers > Individual responsibility
accountability
responsibility
Cabinet
confidence rule
unanimity rule
confidentiality rule

9. the legislative branch
Parliament
Queen
Senate
House of Commons

10. house of commons 307 members > first past the post electoral system
strict party discipline
the terms of the House of Commons:
election at least every 5 years (BNA 1867)
the Governor General can dissolve the chamber in advance
fixed term parliament (statute) > election every 4 years the third monday in October

11. senate
not elected Chamber > members are appointed by the Governor General
every senator stays in office until the age 75 > continuous Chamber
24 representatives for every area (Ontario, Quebec, Maritime and West provinces) + 3 for the Territories
not effective representation of the provincial interests

12. limitations of the senate composition
some provinces are overrepresented, other are underrepresented
very weak link between senators and provinces (residence)
the Government has the power to appoint 8 additional senators

13. governor general
BNA 1867 > the Queen has the executive power > Governor General
no written rules about his appointment > Queen (advice Canadian Cabinet now)
important powers exercised on the advice of the Canadian Government
to give the royal assent to the bills approved by the Chambers
to appoint senators
to appoint ministers

14. governor general Personal prerogatives (no advice)
the appointment of the Prime Minister
the dismissal of the Prime Minister
the dissolution of the House od Commons

15. CANADA IS A QUASI-FEDERALISM (WHEARE)
The technique used to distribute the legislative power between federation and provinces ***
The federal Government has the power to levy indirect and direct taxes
The federal Government has the power to appoint the Lieutenant Governor of each province
The federal Government has the power to disallow (invalidate) provincial statutes
The federal Government has the power to appoint judges of the superior courts of each province

16. PROVINCIAL CONSTITUTIONS
BNA 1867
title [parliamentary government = separation of powers > Lieutenant Governor]
sect. 92(1) > provinces could amend their federal constitutions [today sect. 45 CA 1982] but
not the Lieutenant Governor > colonial dominion
no special procedure > flexible constitutions
limitations from case law (OPSEU v. Ontario) > federal principle, bilingualism, responsible government

17. CANADA IS A FEDERAL STATE
Federal fiscal dominance > since II WW power back to the provinces
Disallowance power is not already used
The Lieutenant Governors act on the advice of the provincial Cabinets
The tradition of judicial independence is strong

18. THE DISTRIBUTION OF LEGISLATIVE POWERS
double list of matters (not one) both falling within the exclusive competence of one level of government
the residual clause is in favor of the federal Parliament
some important topics are allocated to the federal Parliament (trade and commerce, banking, marriage, divorce, criminal law, jails)

19. WHY A QUASI-FEDERALISM?
America federalism was a counter-model
Civil war > too many state powers
Different solution to the problem of sovereignty
Strong federal government is the answer

20. FEDERAL COMPETENCES Unity of the federal state Army and defense
Economy
Infrastructure and communication
NO treaty making and implementing power

21. THE SEPARATION OF LEGISLATIVE POWER IN THE COURTS
Federalism (entails)
written constitution > separation of powers
a rigid constitution
a judge who resolves conflicts of competence between the two levels of government

22. THE SEPARATION OF LEGISLATIVE POWER IN THE COURTS
Neither the American nor the Canadian constitution expressly provide for a judge
USA > Marbury v. Madison (1803) > Judicial review of legislation
Canada > Colonial Validity Act > JCPC and provincial judges had the power to review the coherence of legislation passed by the Canadian legislative assemblies with the Imperial statutes > after 1982 Canadian legislation has to respect the constitution

23. THE SEPARATION OF LEGISLATIVE POWER IN THE COURTS
[JCPC] > a narrow interpretation of the federal powers and a wide interpretation of the provincial powers
1949-today [Supreme Court] > growth of the federal powers along with the transition from dual to cooperative federalism [/ U.S., because of the importance of agreements between the 2 levels of government]

24. THE POGG CLAUSE IN THE JCPC INTERPRETATION
matters not included among the federal and provincial competences + Canadian unquestionable interest
extraordinary circumstances or danger of the whole country > this clause could not justify the derogation from the division of legislative powers during the economic crisis (1934/35 > // U.S.)

25. THE POGG CLAUSE IN THE SUPREME COURT INTERPRETATION
Residual power branch > when a matter is not connected with the matters referred to in sect. 91 and 92
Emergency branch > when there is an emergency to deal with (e.g. the inflation during the oil crisis in 1973)
National concern branch > when a matter of national interest should be regulated

26. SUPREME COURT 9 Judges appointed by the Governor General [Cabinet]
3 from Quebec [law > civil law]
3 from Ontario [practice > = Quebec]
2 from the Western provinces
1 from the Atlantic provinces
the last Court of Appeal for civil, criminal and constitutional cases
reference jurisdiction

27. SUPREME COURT > reference jurisdiction
“The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning:
(a) the interpretation of the Constitution Acts;
(b) the constitutionality or interpretation of any federal or provincial legislation;
....
(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised”

28. SUPREME COURT > REFERENCE JURISDICTION
Governor General > Cabinet
Always used for constitutional cases
Not a traditional judicial function, because it lacks the adversarial and concrete character of a controversy
An advisory opinion has no legal effects and is not binding on the parties to reference

29. CONSTITUTION AMENDMENT
BNA 1867 contained no general provision for its own amendment > Imperial statute > Westminster Parliament
Statute of Westminster 1931 > Canada has the power to repeal or amend some Imperial statutes, but not the BNA 1867 [Opposition of the provinces]
Imperial conference of 1930 > The UK Parliament can pass a statute applying to a dominion only with the consent of dominion [practice] > for every amendment involving provincial powers the unanimous provincial power was obtained

30. PATRIATION REFERENCE (1981)
1981 Trudeau wants the patriation of the Canadian constitution, also without the provincial consent
Supreme Court
Is the provincial consent foreseen by the law? No
Is the provincial consent foreseen by a constitutional convention? Yes
Must be unanimous the provincial consent? No, so Quebec had not a veto power
> Agreement with 9 provinces (Quebec dissenting) > Canada Act 1982

31. CANADA ACT 1982
A British statute that made some important “repairs” to the Canadian constitutional law
Introduces an amending formula
Introduces a (constitutional) bill of rights (Charter of rights and freedoms)
Ends the authority over Canada of the UK

32. AMENDING FORMULA General amending procedure (38) [once]
Unanimity procedure (41)
“Some but not all provinces” procedure (43) > for amend provisions not applying to all provinces [seven]
Federal Parliament alone procedure (44) > for amend provisions relating to the federal executive and to both houses of Parliament [twice]
Provincial legislature alone procedure (45) *** > provincial constitutions

33. general amending procedure
For amendments not otherwise provided for
Requires the assent of federal Parliament and 2/3 (7/10) of the provinces representing at least 50% of the population
No single province has a veto power > but there is an opting out right***
The 50% of population means at least the consent of 1 of the 2 most populous provinces [Ontario or Quebec]

34. UNANIMITY PROCEDURE
Requires the assent of the Canadian Parliament and of all provinces
For 5 subjects:
the office of the Queen, the Governor General and the Lieutenant Governor of a province
the right of a province to have a number of representatives in the House of Commons not less than the number of senators by which the province is represented within the Senate
the use of French and English language
the composition of the Supreme Court of Canada
the amending formula

35. PATRIATION WITHOUT QUEBEC
The Canada Act is binding to all provinces, but Quebec refuses to participate in constitutional changes involving the use of the new amending formula >
Opting Out Right***
Override Clause***

36. OPTING OUT RIGHT
When an amendment “derogates from the legislative powers, the property rights or any other rights or privileges of the legislature or government of a province” the legislative assembly of a province can pass a resolution of dissent and therefore the amendment shall not have effect in that province (sect. 38,3)
No veto power > no legal effects of an amendmennt within the dissenting province
A resolution of assent can be passed at any times

37. OVERRIDE CLAUSE
(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
...
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under limitation 33.

38. OVERRIDE CLAUSE
The result of a compromise during the patriation process
The effects of the declaration last 5 years and can be renewed only once
The legislature must declare expressly the use of the override clause
Some charter rights can be overriden
fundamental freedoms
legal rights
equality rights

39. OVERRIDE CLAUSE: AN EVALUATION
Practice
Few used outside Quebec
Used by Quebec as instrument of political opposition
Parliamentary sovereignty v. Constitution sovereignty
Parliament v. Judges > problem of legitimacy of the judicial review of legislation > dialogue between the Court and the Legislature / weak judicial review of legislation

40. PATRIATION WITHOUT QUEBEC
Meech Lake Agreement (1984)*** > no unanimity of provinces
Charlottetown Agreement (1992)*** > referendum defeated
Parti Québécois (1994) > referendum on sovereignty defeated [50,6% / 49,4%] (1995) > Secession Reference (1998)
The federal Parliament passes
a motion defining Quebec a distinct society***
the Regional veto Act (1996)***

41. THE CONTENTS OF THE TWO AGREEMENTS
The recognition of Quebec as a distinct society
A greater power of Quebec in the migration policy
A provincial role in the appointment of the Canadian Supreme Court
Some limitations on the federal spending power
A veto power for Quebec on some constitutional amendments

42. SECESSION REFERENCE
Could Quebec secede unilaterally from Canada? No under the constitutional law > a secession would require a constitutional amendment (it is no clear what the procedure is to use) and the agreement between the federal Government and the other provinces
A referendum in Quebec that yielded a clear majority on a clear question in favour of secession can not accomplish a secession, but would confer legitimacy on demands for secession and would give rise a reciprocal obligation on all parties to negotiate a constitutional change

43. CLARITY ACT 2000
The House of Commons has the power to decide if a a referendum question on secession is clear > if the question is not clear, the federal Government cannot negotiate the secession
The House of Commons has the power to decide if the majority in favour of a secession is clear by evaluating the size of majority, the turnout and any other matters or circumstances it consider to be relevant
Under the constitution of Canada there is no right of unilateral secession > an amendment of the constitution would be required for a province to secede from Canada

44. QUEBEC IS A DISTINCT SOCIETY
Expression born in the political debate to highlight the uniqueness of the Canadian province within the federation
The majority of the Canadian french-speakers live in Quebec > in Canada french-speaker are a minority
The majority of the catholics live in Quebec > In Canada catholics are a minority
Civil law tradition due to the French colony that UK obtained with the Treaty of Paris

45. QUEBEC HISTORY
Treaty of Paris (1763) New France was ceded to U.K. by France
The Quebec Act 1774 restored the civil law system abolished by the royal proclamation of 1773
The Constitutional Act 1791 Upper Canada (English) and Lower Canada (French) > the law of the former province of Quebec remains in force until modified by the Assemblies of both provinces. > Upper Canada modifies it, Lower Canada no.
The Union Act 1840 created a unique province (Canada) and confirmed the co-existence of two legal systems
The BNA 1867 divided the former province of Canada into 2 new provinces Ontario (former Canada West and Upper Canada) and Quebec (former Canada Est and Lower Canada) > every province manteins its body of law.

47. REGIONAL VETO ACT
Ministers of Government cannot submit resolutions on constitutional amendments without the consent of:
Ontario
Quebec
British Columbia
2 of the Atlantic Provinces
2 of the Western Provinces
Is it a constitutional statute? maybe not, because it is an ordinary statute that indirectly “modify” the amending formula
Nevertheless it is a statute able to influence the Government decisions concerning the constitutional amendments

48. ABORIGINAL PEOPLE
Sect. 91(24) > Federal Parliament makes laws in relation to “Indians and lands reserved for the Indians” > why?
The level of government able to respect the Indian reserves, the treaties with Indians and the Indians rights
One national policy in this matter
Indians = aboriginal people who had been living there long before European contact > Indians + Métis + Inuit (sect. 35 Charter)

49. ABORIGINAL PEOPLE
Three territories - created by law - where the majority of the aboriginal people live
Elective and legislative Assemblies > separation of legislative power similar to that in force between Federation and Provinces
North West (1875)
Yukon (1989)
Nunavut (1994)