POL 2107 Lecture Notes - Lecture 17: Constitution Act, 1982, Patriation Reference, Provincial Rights Party
14 Dec 2016
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INTRODUCCIÓ A SA POLÍTICA CANADENCA
Professor: Joseph Román
Lesson 2.0
Canadian CONSTITUTION
The Charter of rights shall be treated separately.
“oues of Caadas Costitutio
- BNA Act (1867)
- Formal amendments
- British statutes and orders in council, e.g. the Statute of Westminster (1931) (Constitutional
Bloc)
- Ogai Caadia statutes that fudaetall alteed Caadas politial istitutios.
(Constitutional Bloc).
- Constitution Act, 1982.
- Jurisprudence. At any level until it is challenged (in practice, SC is the most important).
- Conventions. Unwritten. Part of political practice. (eg. Ottawa has to ask the provinces to
ammend the Constitution).
COMPACT THEORY AND CONFEDERATION.
- Autonomous communities enter into a Union.
- The provinces as founders, with right to alter the original terms of Union.
- English and French Canadian politicians did come together to discuss forming a new country.
- Province of Canada and Maritimes followed.
This is not the case of confederation.
- The provinces never had sovereign powers.
- A popular consensus for Confederation did not exist. (Even Sir John A. Was against). 1st province
that tried to secede was NS
- The poies ee ee osulted o hages to the BNA At that affeted Ottaas poes.
BNA ACT.
- Caadas st Costitutio.
- Caada ill hae a Costitutio siila i Piiple to that of the UK Peale.
- Canada as a Constitutional monarchy
- Parliamentary government
- Division of powers. Sections 91, 92 and 93 enumerated the powers of Ottawa and the provinces.
o 91: Federal government. Powers that were central to nation building. Ottawa could
ake las fo the Peae, Ode ad good Goeet of Caada POGG lause.
Euse to legislate i EVE‘YTHING the at. Ottaas poes of eseatio ad
disallowance (allows to strike down any provincial law). Reservation allows lieutenant
Governors to refer provincial bills to the Gov. Gen., for the consideration of the federal
government. Residual powers -> Fell to Ottawa.
find more resources at oneclass.com
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o 92: Provinces. Unimportant for that time. Local concern. Times of laissez-faire. Social
services...
o 3: Eduatio poies ad deoiatioal shools. Wast that ipotat.
- Group rights. (We need to understand we were a conservative, Burkeian country in comparison
with the US and Locke).
- Individual rights: consacred by convention for the moment. NO IN ARTICLES.
- Section 133: French and English in courts, House and Senate.
- Section 93: Denominational schools as religious measure of protection. (The Globe: protestant;
The Star: catholic).
John A Macdonald wanted a centralized federation.
PROVINCIAL RIGHTS MOVEMENT.
- Provincial rights movement was spearheaded by Ontario and Québec.
- Ontario resented federal encroachment on economic policy. Hey, do not touch our money, eh?
Lets defed ou iteests.
- Québec: preservation of French language and the Roman Catholic religion.
- “o, lets go to the outs!. Ottaas Tade ad Coee s poies Popet ad Ciil ights.
- JCPC (that thing in London) tended to ruled in the favor of the provinces.
- Citizend Insurance Company of Canada v. Parsons aoed the sope of Ottaas Tade
ad Coee poe to itepoiial affais ad sigifiatl ideed the sope of poies
regulation of civil and property rights.
- Russell v. The Queen (1882) narrowed th scope of the POGG clause to emergency moments.
Key changes to BNA Act.
- Costitutio At , Ottaa to sestalish e poies as a esult of puhase of ‘upets
Land (call it Manitoba).
- S. 91 (2A) Ottawa: powers over unemployment insurance in 1940.
- S. 94 A. Ottawa: old age pensions.
CONSTITUTION ACT, 1982.
Mega-constitutional Politics: Towards Patriation.
- Quées Quiet ‘eolutio istigated suessie ouds of ostitutioal talks. Quée i
was as Spain in 1960 (rural, catholic, conservative, controlled by English...).
- Nation-building -> Modernization project in Québec. Québecois identity appears. The province
wants more powers. Linguistic and religious tensions were on the rage.
- With the exception of areas that only concerned the fed. Go., Ottaa euied Lodos
approval to amend the BNA act.
- No amending formula existed. Ottawa and the provinces could NOT agree on one.
- P. Tudeaus ie of the plae of Feh i Caada, Quééois atioalists, ights ad Ottaas
role in national life. This guy wanted repatriation. He was seen as a Canadian nationalist as well
as a French-Canadian nationalist. He was one of the intellectual authors of the Quiet revolution.
Anglophones excluded Francophones from political institutions. French speakers shall feel like in
find more resources at oneclass.com
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home in any part Canada (yes, even Winnipeg). He was a damn liberal and individualist. He was
a centralizor, so felt that Canada was balkanized.
- Fulton-Favreau Formula. 1st attempt to patriation.
o Québec felt that it lacked the necessary powers for province and nation building.
o Eleets of this Foula spoke to Quées setiets aout ostitutioal hage,
namely that altering provincial powes and the status of French and English. We need for
that unanimity amongst the provinces. So any province has veto power
o 7/50 rules. Other areas need to be agreed with 7 provinces with 50% of population (with
requires at least Ontario or Québec.
o Québec withdrew its consent. 2 reasons explain this
▪ Patriating the BNA act was a nation building project by English Canada.
▪ The igid aedig foula theateed Quées atio uildig aspiatio i
so far as obtaining future powers were concerned. Modernization is an
instrument, not an end in itself, so this formula was to difficult to use.
- Victoria Charter of 1971
o Confederation of Tomorro Conference of 1967, instigated by J. Robarts. Interprovincial
level. What does Québec want? Accomodate soft nationalists in order to avoid the end
of Canada, even with the reject of Trudeau. Trudeau want to do this by patriating the
constitution.
o 6 dispositions.
▪ Ammending formula.
▪ Consult the provinces for SC appoinments.
▪ Bill of rights
▪ Equalization payments: service for regional equalization.
▪ New language rights (again!)
▪ Transformed powers from Fed and Prov legislatures.
o Problems with the BoR. Provinces wanted not to have this constraint to their freedom to
legislate.
o Ottawa: We forget aboot reservation and disallowance but you permit my BoR.
o Québec agreed for the moment (BOURASSA). Nationalist didnt want this. WE WANT
MORE. Social policy is far tooooooo important to be left to these Ottawa folks.
MOLGAT-MACGUIGAN Committee.
Joint committee (1972). Public consultation is permitted. BTW, Canada wants a new constitution.
Courts force to recognize Aboriginals as part of the political landscape.
Political events in Western Canada (NO LIBERALS elected!) and Québec created a sense of urgency in
Ottawa. 1976 LEBECQ elected. PQ to power.
QUÉBEC ‘EFE‘ENDUM . NO is. “o, Tudeau ats to aasio ostitutioal hage.
Foget aoot Quées deads of a distit soiet ad asetial fedealis.
Constitutional talks routinely broke down.
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Document Summary
The charter of rights shall be treated separately. British statutes and orders in council, e. g. the statute of westminster (1931) (constitutional. O(cid:396)ga(cid:374)i(cid:272) ca(cid:374)adia(cid:374) statutes that fu(cid:374)da(cid:373)e(cid:374)tall(cid:455) alte(cid:396)ed ca(cid:374)ada(cid:859)s politi(cid:272)al i(cid:374)stitutio(cid:374)s. (constitutional bloc). Part of political practice. (eg. ottawa has to ask the provinces to. At any level until it is challenged (in practice, sc is the most important). ammend the constitution). The provinces as founders, with right to alter the original terms of union. English and french canadian politicians did come together to discuss forming a new country. A popular consensus for confederation did not exist. (even sir john a. 1st province that tried to secede was ns. The p(cid:396)o(cid:448)i(cid:374)(cid:272)es (cid:449)e(cid:396)e (cid:374)e(cid:448)e(cid:396) (cid:272)o(cid:374)sulted o(cid:374) (cid:272)ha(cid:374)ges to the bna a(cid:272)t that affe(cid:272)ted otta(cid:449)a(cid:859)s po(cid:449)e(cid:396)s. Ca(cid:374)ada (cid:449)ill ha(cid:448)e (cid:862)a co(cid:374)stitutio(cid:374) si(cid:373)ila(cid:396) i(cid:374) p(cid:396)i(cid:374)(cid:272)iple to that of the uk(cid:863) (cid:894)p(cid:396)ea(cid:373)(cid:271)le(cid:895). Sections 91, 92 and 93 enumerated the powers of ottawa and the provinces.
