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PSCI 363 (2)


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University of Waterloo
Political Science
PSCI 363
Emmett Mac Farlane

th Week two: January 13 , 2014 Canada’s Constitutional Development Constitutional Law Constitutional law is the body of law which defines the relationship of different entities within a State, namely, theexecutive, the legislature, and the judiciary. - Often in these historical plays, we down play the already existing governments - We had informal and formal practices o Not written constitutions o Transactions were oral o Indigenous groups were judged less advanced (to euro people) - Charter rights and freedom – this is the new part of the constitution -The Canadian  Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such  reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. - Rules that government and actors must follow in the course of a governing a state o To do this they outline the separation of powers  Which outline executive, legislative, and judicial function o In federal countries, there is the division of powers o Rights (more common in modern constitutions - There are many written and unwritten laws - “the law prescribing the exercise of power by the organs of a state” - Usually includes: o Separation of powers (outlining executive, legislative, and judicial functions) o In federal countries, the division of powers (federal and provincial/state powers) o Rights (more common in modern constitutions) o What areas of jurisdiction has control over this area o Doesn’t really outline the laws of municipalities and cities - USA – is the oldest western democratic model—the courts are powered to do stuff o Not common until UN declaration - Some countries have many important and unfeatured stuff in their constitution o Just like Canada  Following the UK and everything  Many different written documents Historical Development - How Canada developed itself - Canadian constitution is older than 1786 - Copied key features of UK What is the Canadian Constitution? Royal Proclamation of 1763 royal proclomation 1763, framework for native treaties, abolished quebec civil code, tried to assimilate Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War, in which it forbade settlers from settling past a line drawn along the Appalachian Mountains. The proclamation created a boundary line (often called the proclamation line) between the British colonies on the Atlantic coast and American Indian lands (called theIndian Reserve) west of the Appalachian Mountains. The proclamation line was not intended to be a permanent boundary between white and Aboriginal lands, but rather a temporary boundary which could be extended further west in an orderly, lawful manner The proclamation forms the basis of land claims of Indigenous peoples in Canada – First Nations, Inuit, and Métis. The Royal Proclamation of 1763 is thus mentioned in section 25 of the Canadian Charter of Rights and Freedoms. Royal Proclamation of 1783 - Provided for the government of Quebec - Established treaty system with indigenous people - Issued in part to just address that - They imposed English law in all the colonies – excluding the pre-existing French civil law - It was various slimulation - Indian lands and hunting shit would be protected o The crown operates as a key authority for the sovereign power of North America Paris (1783), Treaty of, concluded the AMERICAN REVOLUTION.  On 20 Sept 1783 Britain acknowledged American independence and  recognized a boundary along the centre of the 4 northerly Great Lakes  and from Lake of the Woods "due west" to the imagined location of  the Mississippi's headwaters, then S along the Mississippi R. This  gave the US Niagara, Detroit and Michilimackinac, and valuable lands  reserved to Indians by the ROYAL PROCLAMATION OF 1763.  The Royal Proclamation is a document that set out guidelines for European settlement of Aboriginal territories in what is now North America. Quebec act of 1774 - French civil law in quebec - Guaranteed religious freedom for French Catholics - Served as a model - Local indian population gave up land for goods, and education o Provided by reserved lands o was an act of theParliament of Great Britain (citation 14 Geo. III c. 83) setting procedures of governance in the Province of Quebec. The principal components of the act were: - The province's territory was expanded to take over part of the Indian Reserve 1982 – entrenched aboriginal and treaty rights Constitutional act 1791 - Separated English and French by dividing quebec into upper and lower Canada o Aim was to alleviate the tension between French and English population o Reduce linguistic tensions o Provided for elected assembly in each province “representative government” The Constitutional Act of 1791 was a British law which changed the government of the province of Quebec to accommodate the many English-speaking settlers, known as the United Empire Loyalists, who had arrived from the United States following the American Revolution. Quebec was divided in two. The western half became Upper Canada (now southern Ontario) and the eastern half Lower Canada (now southern Quebec). Upper Canada received English law and institutions, while Lower Canada retained French law and institutions, including seigneurial land tenure, and the privileges accorded to the Roman Catholic church Durham Report 1839 - Represented government in the colonies was only partial o British government did not need to heed legislative assembles - Tensions led to 1837 rebellions to both upper and lower Canada - Elected legislation did have authority to legislate this was the lower scale impulses - Durham proposals: - Britain want first reaction o Unification of upper and lower Canada o Responsible government - People were mad, because the people who were elected did not represent - More English speakers than French – this goal of assimilation he is still vial - Need to pay attention to elected authorities - to make sure that the executive counsels do what they are told Durham believed the triumph of capitalism would bring harmony and  tranquility, if there were also political reforms. In Upper Canada he  saw a defective constitutional system, where power was monopolized  by "a petty, corrupt, insolent Tory clique." This Family  Compactblocked economic and social development in a potentially  wealthy colony, thereby causing the discontent which led to the  rebellion. Durham's solution was a system in which colonial  governments, at least in domestic matters, were made responsible to  the electorate rather than to the governor and the Crown. This would  be possible if the executive (or in modern terms, the Cabinet) was  drawn from and held the support of the majority in the elected  assembly. Such a reform would reduce the power of the Family  Compact, stimulate colonial development, strengthen the imperial  connection with Britain, and minimize American influences in the  colony. The Act of Union (1840) --- First recommendation of Durham – commonly known as BNA act It abolished the legislatures of Lower Canada and Upper Canada and established a new political entity, the Province of Canada to replace them. This act effected the political union of the Province of Canada, o United Upper and Lower Canada into the Province of Canada o Former provinces became “Canada West” and “Canada East” o Goal of assimilating the French - The union was also proposed to solve pressing financial issues in Upper Canada, which had become [3] increasingly indebted under the previous regime dominated by the Family Compact. These debts stemmed mostly from poor investments in canals[4connecting Upper Canada to the port of Montreal in Lower Canada via the Great Lakes and St-Lawrence river. Due to Upper Canada's considerable debt and chronic budget shortfalls, it was hoped that its finances could be salvaged by merging it with the then-solvent Lower Canada. - They now have equal number of seats for upper and lower Canada o To make sure that the French did not control English –  English side had less seats since population was growing o Goal to assilmate the French – because they model a clear determination to maintain their culture  turned bilingual by their practice – declared that they have equal status  Operating as a quasi-fed principles o The union was also proposed to solve pressing financial issues in Upper Canada, which had [3] become increasingly indebted under the previous regime dominated by the Family Compact. These debts stemmed mostly from poor investments in canals [4connecting Upper Canada to the port of Montreal in Lower Canada via the Great Lakes and St-Lawrence river. Due to Upper Canada's considerable debt and chronic budget shortfalls, it was hoped that its finances could be salvaged by merging it with the then-solvent Lower Canada. o However, despite the amalgamation, the distinct legal systems of the two colonies was retained with Upper Canada becoming referred to as Canada West (with English common law) and Lower Canada as Canada East(with French civil law). In Upper Canada, there was opposition to unionization from the Family Compact, while in Lower Canada political and religious leaders reacted against Upper Canada's anti-French measures - Durhams second recommendation was signed by great Britain - reforms in 1848 (principally the effective transfer of control over patronage from the governor to the elected ministry). These reforms resulted in the appointment of the second Baldwin-Lafontaine government that quickly removed many of the disabilities on French-Canadian political participation in the colony. - No longer to appoint their friends o This was established in 1848 (Nova Scotia) - Fusion of power only act as long it maintains the confidence of the legislature - Overturn the power of the executives Responsible government Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability, the foundation of the Westminster system of parliamentary democracy. Governments (the equivalent of the executive branch) in Westminster democracies are responsible to parliament rather than to the monarch, or, in a colonial context, to the imperial government.  U.S. system is a “separation of powers” model of government: legislative, executive and judicial branches of government – each independent  Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The normal division of branches is into a legislature, an executive, and a judiciary.  Parliamentary system: responsible government – the executive is legally invested in the Crown, and can only act on advice (direction) of the ministers who have support of the legislature  A system of government in which the power to make and execute laws is held by a parliament. Brita in hasa parliamentary system of government, one of the oldest in the world. The United States doe s not; itslegislature, the Congress, passes the laws, and a separate part of government, the executi ve branch,carries them out.
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