Canada's Constitution: September 11, 2012
- The Canadian Constitution is made up of a host of documents, conventions that are constitutionally
o Constitution Act, 1867 (BNA Act, 1867).
o Canadian Charter of Rights and Freedoms.
- Any law or action found in violation of these documents is considered invalid (S. 52).
- However, these documents (and the power derived from S. 52) are not the whole story.
o The Royal Proclamation, 1763.
o The Quebec Act, 1774.
o Constitutional Act, 1791.
o Union Act, 1840.
- None of these are actually referred to in S. 52, nor is the SCC Act, the Canadian Bill of Rights, the
Canadian Elections Act, the Indian Act, signed treaties with First Nations’ peoples or conventions.
- Yet, all have constitutional implications.
- Key characteristics:
o Canada is a federal state.
One of the most important dynamics of Canada’s pre-Charter constitution.
Political power is divided between different levels of government.
In fact, sovereignty is divided between two orders of government with each level
restricted to specific areas of responsibility.
Constitution Act, 1867 (BNA Act, 1867).
S. 91 (specific federal powers)
S. 92 (specific provincial powers)
- Why federalism?
o Federalism derives from Canada’s political, economic and social history.
o Before 1982, the main focus of judicial review in Canada had to do with federalism.
o The origins of Canada’s specific version of federalism arrives from its “founding peoples.”
o This is, of course, controversial because the “peoples” that are most dominant in Canadian
federalism and French and English speakers.
o Canadian federalism does not reflect other equally important founding peoples, including
- Understanding Canadian Federalism:
1. Compact theory.
2. Asymmetrical federalism: dualism and multiculturalism.
3. Nationalizing federalism.
4. Rights-based federalism
- Canadian federalism is constructed around:
5. Political community and political identity.
6. Geography and region.
7. Political economy.
8. Language and religion.
9. State power and public welfare.
10. Public safety and security.
11. Rights and democracy.
The Compact Theory
- Compact Defined:
“Canada is the creation of the Provinces.”
- A bunch of separate, political and social colonies got together to create a
Equality of the Provinces.
- Equality between the founders.
- Each level of government is recognized as sovereign.
Jurisdictional powers can act independently.
- Actions of the federal government.
Legitimate if power is given by the constitution.
- Confederation is a “contract.”
Right to levy taxes
Right to spend
- Still resonates today.
Limited federal involvement in provincial jurisdiction.
Equality of provinces.
All provinces are equal.
Reform Movement (Western Alienation)
Canada in the British Empire
- Many historians suggest that Canadian confederation is n important stage
in the continuity of the British Empire
- No shift in sovereignty from Britain to Canada.
- Confederation lacked the formal and informal attributes of nationality.
- English Canada dominates.