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PSCI 363 (2)

Week three PSCI 363

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University of Waterloo
Political Science
PSCI 363
Emmett Mac Farlane

Week 3 Patriation Amendments and Conventions  Early attempts at new amending formula  had made attempts to domesticize the amending formula, but could not obtain agreement with the provincial governments as to how such a formula would work. Thus, even after the Statute of Westminstergranted Canada and other Commonwealth nations full legislative independence in 1931, Canada requested that the British North America Act, 1867, be excluded from the laws that were now within Canada's complete control to amend; until 1949, the constitution could only be changed by a further act at Westminster. TheBritish North America (No.2) Act, 1949, granted the Parliament of Canada limited power to amend the constitution in many areas of its own jurisdiction, without involvement of the United Kingdom. The constitution was amended in this manner five times: in 1952, 1965, 1974, and twice in 1975.  This, however, did not stop continued negotiations between federal and provincial governments on the development of a new amending formula in which the United Kingdom would have no part. In the 1960s, efforts by the governments of Prime Ministers John Diefenbaker and Lester Pear[3], including the Confederation of Tomorrow conference in Canada's centennial year, culminated in the Fulton–Favreau formula, but without Quebec's endorsement, the patriation attempt failed. In 1968, Pearson was succeeded by Pierre Trudeau, who also advocated patriation. He made several attempts, including the Victoria Charter in 1971 and more proposed amendments in 1978.  Patriation (1982)  Patriation is a colloquial term used in Canada to describe the process leading to a specific constitutional change in 1982. Until that date, Canada was governed by aconstitution composed of British laws that could be changed only by acts of the British parliament, albeit only with the consent of the Canadian government. Patriation resulted in the constitution being amendable by Canada only and according to the Canadian amending formula, with no role for the Parliament of the United Kingdom. Hence, patriation is associated with the acquisition of full sovereignty.  Reference  The court ruled (for the first time, on live television) that the federal government had the right, by letter of the law, to proceed with the unilateral patriation of the constitution (the decision seven to two in favour). However, by a different six-to-three majority, the court said that the constitution was made up as much of convention as written law and ruled that a unilateral patriation was not in accordance with constitutional convention. Although the courts enforce laws, not constitutional conventions, the message was [5]ar: agreement by a "substantial" number of premiers would be required. This number was not defined and commentators later criticised the court's failure to rule that the approval of all provinces was required.][7][8]  The Amending Formula  Constitutional Conventions  The Crown  Royal Prerogative Powers Fulton-Favearu Formula 1964  the Fulton–Favreau formula was a proposed formula of amendment of the Constitution of Canada  Under the formula, all provinces would have to approve amendments that would be relevant to provincial jurisdiction including the use of the French and English languages, but only the relevant provinces would be needed to approve amendments concerned with a particular region of Canada. Two-thirds of the provinces representing half of the population, as well as the federal Parliament, would be needed for amendments regarding education.  Changes involving federal division of powers would require unanimous consent  Most other amendments would use the “7/50 rule” › Consent of federal government plus at least two-thirds of the provinces (7) representing at least 50% of the population - Federal power changes would be vital by province - Close to meeting an agreement, but quebec pulls out - During the negotiations, a number of controversies arose over the Fulton–Favreau accord, including that the unanimity constituted a "strait jacket" that would make the Constitution too difficult to amend. o The quiet revolution (1960s) - intense change in Quebec, Canada, characterized by the effective secularization of society, the creation of a welfare state (état-providence), and realignment of politics into federalist and sovereignist factions. - The provincial government took over the fields of health care and education, which had been in the hands of the Roman Catholic Church. It created ministries of Health and Education, expanded the public service, and made massive investments in the public education system and provincial infrastructure. The government allowed unionization of the civil service. It took measures to increase Québécois control over the province's economy and nationalized electricity production and distribution.  o A period of rapid expansion of the state in Quebec in the 1960s o Modernization, industrialization and growth o Secularization – withdrawal of the Catholic Church from social program delivery o Growth of nationalism – change from preservation to expansion o Some see arguing to FF as a “straight picket” Mega-constitutional politics - Stemmed from response to the Quiet Revolution by Pierre Trudeau - Pitted vision of an autonomous provincial homeland for Quebec against vision of a Canada-wide community of individuals - Pearson government: “Federalism for the Future” - Bill of rights, stronger central institutions - After charelottown; very trial of quebec and reform - Initial response was to quebecs new nationalism o Trudeau opposed homogenous ethnic quebec state o Pearson: bill of rights, catering central institutions - 1968-1971 – constitution main agenda of federal government Major Talks  Negotiations led to a limited constitutional package › A bill of rights › Commitment to addressing regional disparities › Constitutional recognition of Supreme Court  Struggle between quebec-nationalism and federal desire to unite country  1971-; limited constitutional package  Municipal?? Provincial central over social policy The Victoria Charter (1971) - A “mini” version of the Charter of Rights - A section on the Supreme Court of Canada - This document represented a failed attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add rights and freedoms to it and entrench English and French as Canada's official languages; he later succeeded in all these objectives in 1982 with the enactment of the Canada Act 1982. - Abolish of reservation and disallowance o Disallowance and reservation are historical constitutional powers that were instituted in several territories throughout the British Empire as a mechanism to delay or overrule legislation. Originally created to preserve the Crown's au
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