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Lecture 3

PSCI 2003 Lecture Notes - Lecture 3: Clarity Act, Kewatinook, Phil Fontaine


Department
Political Science
Course Code
PSCI 2003
Professor
J Malloy
Lecture
3

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27 Sept 2016
PSCI 2003 Lecture 3
The Constitution and Constitutional Reform
Constitutions and Amending Formulas
The 20th Century Constitutional Odyssey
Constitutional Abeyances
Constitutions The underlying rules of a political system
o Written: United States
o Unwritten: United Kingdom
o Partly written: Canada
Two approaches to constitution-making (Peter Russell, Constitutional Odyssey)
Canada is between the two:
-Responsible government (1848) = Burkean
-British North America Act (aka Constitution Act,  = Lokea ut…
Caada’s th Century Problem
o British North America Act = act of the British Parliament
o Can only be amended by the same body
o No amending formula
Patriation and Amendment
o Gradual legal equality with Britain (P.34)
1926 Balfour Declaration, 1931 Statute of Westminster
Established Canada (and Australia, NZ, etc. as equal with Britain)
o But… still o Caadia aedig foula p.
Do all provinces have to agree to any changes?
A majority of provinces?
Any provinces?
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USA Amending Formula
o 2/3 of House and Senate and ¾ of state legislatures
o 27 amendments since 1789
o Notable failure: The Equal Rights Amendment (1970s)
a proposed amendment to the United States Constitution designed to
guarantee equal rights for women.
Middle-class women generally were supportive. Those speaking for the working
class were strongly opposed, arguing that employed women needed special
protections regarding working conditions and hours.
Received 35 of the required 38 State ratifications.
Australian Amending Formula
o Parliament + Referendum
o Double majority requirement
o 44 Proposals + national song plebiscite
Canadian Temporary Solution
o Until there is agreement on a formula, constitutional changes to the British North
America Act will be made by Britain where the Act was passed; and if affecting
provincial powers, only after unanimous fed-prov agreement.
o Once we agreed on an amending formula, the Act could become a Canadian law and be
patiated ak to Caada.
o Temporary solution lasts 115 years
o Notable amendments: Unemployment insurance (1940); pensions and survivor benefits
(1964).
Constitutional Odyssey
o Temporary solution in Canada
o Many discussions, especially in 1960s and 1970s
o Crucial push: Quebec separatism and 1980 referendum led PM Pierre Trudeau to
proise eeed fedealis
Patriation (to transfer legislation to the authority of an autonomous country from its previous
mother country)
o 1980-81 negotiations
PM and premiers negotiate behind closed doors; little progress
October 1980; PM Trudeau theates to go oe peies’ heads ith a atioal
referendum
Provinces take this to court
Final Summit November 1981; key meeting in kitchen
Final agreement
o Patriation reference
Can the federal government unilaterally change the constitution?
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Answer: Supreme Court rules that while no written law requires provincial
agreement, convention requires it (p. 404)
Trudeau goes back to the premiers
o Formula:
2/3 or provinces with >50% of the population
Sometimes other formulas: (p. 400)
Agreement also included the Charter of Rights and Freedoms
Enacted as Constitution Act, 1982
o PQ Quebec government under René Lévesque refused to sign the 1981 deal
o Quee staed i the ak?
o Indigenous rights also largely left out
Constitution without Quebec
o Is this a problem?
Pierre Trudeau: NO
PQ Separatists would never agree anyway
Non-agreement is purely symbolic; Quebec abides by the deal in
practice; Burkean solution
Brian Mulroney: YES
We have to go back in the closed rooms and make a new deal with
honour and enthusiasm
Let’s aspie to a Lokea ageeet
Meech Lake Accord (1987)
o April 1987 all premiers meet at Meech Lake and reach a preliminary agreement
o June 1987 Meeting in Langevin Block in downtown Ottawa for final agreement
o All discussions behind closed doors
o All premiers sign on and promise to get their legislatures to ratify the deal with no
changes
o Deadline for ratification: June 23, 1990
o Included:
All Quee oditios, iludig eogitio as a Distit soiety
Partial Senate reform
Vetoes for all provinces
More provincial powers
o Criticisms:
Too much/too little for Quebec
Too decentralizing; weakens federal government
Favours provincial identities over others
Nothing for indigenous peoples
Poess: Elee hite e i suits ehid losed doos
o Meech Lake falls apart
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