4 Constitutional Engineering.doc

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15 Apr 2012
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4. CONSTITUTIONAL ENGINEERING
Constitutional engineering seeks to solve the problems of a federal system of
government through the establishment or alteration of constitutional structures.
Formation of the BNA Act:
- problems prior to 1867; Union Act of 1840; trade; American expansionism
- consultation between colonies through direct conferences
- preference for a legislative union; federation with centralistic
characteristics (residual powers, lieutenant-governors, disallowance and
reservation, declaratory power)
Constitution of Canada, as set out in the BNA Act / Constitution Act of 1867
- 5 fundamentals of the Confederation settlement: 1) division of powers 2)
division of financial resources 3) federal controls on provinces
4) provincial representation in federal institutions (intrastate federalism)
5) cultural guarantees
- enumerated (sections 91 and 92), concurrent and residual powers
- education, treaty powers, language rights
Amendments to the BNA Act – pre-1982
No amending clause included in the Act. Until 1982, amendments approved by
the British Parliament.
- natural resources, Statute of Westminster, unemployment insurance, Old
Age pensions
- conventions of constitutional amendments
Judicial Review of the Constitution
- Peace, order and good government; trade and commerce; treaty powers
vs property and civil rights
- Judicial Committee of the Privy Council (JCPC)
- Supreme Court of Canada
Quiet Revolution and separatism in Quebec, bilingualism and biculturalism, FLQ,
War Measures Act, sovereignty-association, referendums in 1980 and 1995
1982 Amendments
Canada Act or Constitution Act, 1982 included:
- patriation of the constitution
- Charter of Rights and Freedoms;
- guarantee of Aboriginal and treaty rights
- commitment to elimination of regional economic disparities (equalization)
- amending formula for the constitution, 5 categories of amendments
(including Section 38 amendments)
- guarantee of provincial control of natural resources.
Meech Lake and the Charlottetown Accord referendum as follow up.
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