POLI 212 Lecture Notes - Lecture 6: Statues (Game), Constitution Act, 1982, Patriation Reference
17 May 2018
School
Department
Course
Professor
January 25th, 2018
Lecture 6: Nationalism and Federalism in Canada (Part II)
Constitutional Amendment
●1887 BNA Act amenable by British Parliament
○No formal or de jure domestic formula
○Ruled by convention (UK will amend BNA upon formal resolution of the HOC
and Senate)
●1927-1980s Canadians can’t decided on a formal rule
●1981 Supreme Court: Patriation Reference (Red Light, Green Light)
○The Supreme Court is not supposed to answer convention questions
●1982: Patriation
●Part I of the Constitution Act is the Charter of Rights and Freedoms
●Part II: Aboriginal Rights
●Part III: Equalization
●Part IV: Legislation Power
●Part V: The Formal Amending Rules (how you change the rules)
●Part V of the Constitution Act, 1982
○Section 38: General Amendment Formula (“7/50” rule, colloquial, you need 7/10
provinces representing at least 50% of the population according to the last census)
the default rule, the federal government is the only official veto, support for an
amendment needs good geographic distribution, Quebec does not have a distinct
veo
○Section 41 Unanimity: there are some things that cannot be amended with
unanimity, there needs to be at least 10 provinces and the federal government
○Section 43 “one or more but not all”: the feds and the legislatures of those
provinces are needed to vote on something if one or more but not all provinces are
included, this is also known as the bilateral rule
○Section 44 Parliament alone: says there is scope for the federal government,
another section says that there is scope for the provinces only
From Part II: under s.35.1 Aboriginal peoples to be consulted on constitutional
amendments pertaining to them (there is a whole argument on the constitutionality of this
section)
●Territories do not have independent constitutional status and do not sign on, on anything
7/50 Rule (2006 census)
●Enter ON or QC have to be part of the provincial coalition. Meaning QC does not have a
general veto, but QC can only be thwarted if the opposing camp includes ON (Quebec
finds this unfavourable)
Document Summary
Lecture 6: nationalism and federalism in canada (part ii) 1887 bna act amenable by british parliament. No formal or de jure domestic formula. Ruled by convention (uk will amend bna upon formal resolution of the hoc. 1927-1980s canadians can"t decided on a formal rule. 1981 supreme court: patriation reference (red light, green light) The supreme court is not supposed to answer convention questions. Part i of the constitution act is the charter of rights and freedoms. Part v: the formal amending rules (how you change the rules) Part v of the constitution act, 1982. Section 41 unanimity: there are some things that cannot be amended with unanimity, there needs to be at least 10 provinces and the federal government. Section 44 parliament alone: says there is scope for the federal government, another section says that there is scope for the provinces only.
