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Chapter 2

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University of Toronto Mississauga
Political Science
Erin Tolley

POL214 Week 1; Chaps 1,2 Intro & Foundations Chapter 2 - Institutional Foundations and The Evolution of the State Early Institutional Developments  4 years after the conquest, Britain issued the Royal Proclamation of 1763 which created the British colony of Quebec from what was then called New France.  It was the 1 distinctively Canadian constitutional document, a document that laid down the rules for governing the British North American colonies that comprised the territory of what would later become Canada.  The Royal Proclamation of 1763 resisted the ideal of imposing the English lang & the Protestant religion on such a homogenous French-Catholic population. Instead it stipulated that the French & Roman catholic legacy of Quebec would be preserved rather than assimilated into the English & Protestant cultures of the other BNA colonies.  The 1774 Quebec Act, for ex established a council to advise the governor in the colony of Quebec. This Council was initially appointed rather than elected, but, imp for the time, the governor was able to choose French-speakers as well as English-speakers, and Catholics as well as Protestants.  Then, in response to pressure from those Loyalists who moved into what is now Ontario, and who were already accustomed to operating with an elected assembly, Britain passed the 1791 Constitutional Act.  The act divided the colony in 2-Upper and Lower Canada-each w/ a governor, an executive council, an appointed legislative council, and a locally elected assembly.  In the case of Lower Canada, the appointed councils were primarily composed of Anglophones, and the assembly, of francophones. In Upper Canada, which was almost exclusively English, the Constitutional Act provided for British, rather than French, civil law.  The executive council gradually evolved into the Cabinet, while the legislative council was the forerunner of the Senate. Thus, by 1791, all the colonies had achieved representative govt- that is, a set of political institutions that included an elected legislative assembly.  Although these govts were representative in the sense of having elected assemblies, they weren't democratic because the govt- where real power lay-was not obligated to follow the demands of the elected assembly.  That assembly represented and articulated the views of the people, but had no real power over the governor and appointed councils. Reformers demanded responsible govt, in which advisers to the governor would both be chosen from and reflect the views of the elected assembly.  The 1839 Durham report provided a blueprint for solving the problems of assembly-executive relations, recommending that the principle of responsible govt be implemented with respect to local affairs so that the exec branch would govern only as long as it retained the confidence of the elected assembly.  In other words, all these pre-Confederation British colonies now operated on the basis that the Governor chose the Cabinet or executive council from the assembly & it had to resign if it lost the confidence of the elected members. Responsible govt a form of govt in which the political executive Page 1 of 7 POL214 Week 1; Chaps 1,2 Intro & Foundations must retain the confidence of the elected legislature and must resign or call an election if and when it is defeated on a vote of nonconfidence.  The colonies were amalgamated by the 1840 Act of Union(which came into effect in 1841), but English did not remain the sole language of govt operations for long. The Road to Confederation  Shortly after achieving responsible govt, the individual BNA colonies began to think of uniting. The colonies were driven to consider such a union because of eco, pol, and military factors. The colonies hoped to establish a new free trade area among themselves.  The colony of Canada had experienced pol deadlock between its 2 parts, then called Canada East (Quebec) & Canada West(Ontario), as well as b/w the French & Eng component groups. Confederation would allow greater autonomy to the 2 parts b/c while a central govt would deal w/ problems that all colonies had in common, provincial govts would handle distinctive internal matters on their own.  The individual colonies also felt vulnerable militarily. By joining together, the colonies would make American military aggression more difficult and provide a stronger force to resist its appetite for the “Canadian” West.  Confederation was thus precipitated by economic, pol and military problems and seemed most colonial leaders to be a means of solving them.  In the 1860’s Nova Scotia, New Brunswick and Prince Edward Island began to consider forming a Maritime union, and they called the Charlottetown Conference for this purpose in 1864.  Nova Scotia, New Brunswick and the colony of Canada-now divided between Ontario and Quebec- were officially united on July 1,1867, by the British North America Act, later renamed the Constitution Act, 1867. The British Parliamentary System compared w/ the American Congressional system:  The central govt in Canada(called the “federal govt”), and the govts in each of the provinces (called the provincial govts), would be based on the parliamentary system of govt, to which there are 2 parts. The legislative part in Canada, Britain and other jurisdictions is composed of an elected lower house, the House of Commons, & an unelected Upper House.  The 2 part of the Parliamentary system is the monarch or the crown, a position which is embodied by the Queen in Great Britain, and by the Queen and her representative, the GG in Canada. Approval of both parts of the parliamentary system is necessary for the passage of legislation and certain other authoritative decisions.  In the Constitution Act, 1867 the most imp powers in Canadian parliamentary govt appear to be vested in the governor general, acting by and w/ the advice of his or her “advisors”.  In the British parlia system, then, the PM and cabinet ministers, who have seats in Parliament, are given the power to introduce most legislation & the right to control most of the time of the legislature.  They also have the exclusive power to introduce control most of the time of the legislation. They also have the exclusive power to introduce legislation of a financial nature- laws either to raise or spend money. Page 2 of 7 POL214 Week 1; Chaps 1,2 Intro & Foundations  The parlia system is executive dominated, and because the British Parliament operates in the Palace of Westminster, this system is sometimes called the Westminster model. Other members of Parliament(MPs) may criticize and propose amendments, the monarch(or governor general) may advise or warn, but the PM & Cabinet almost always get their way.  This is b/c a majority of the members of Parliament normally belong to the same pol party as the PM & Cabinet, and together they constitute a majority govt.  The British parliamentary system also incorporates the principle of judicial independence. The whole judicial system is then expected to operate independently of the executive and legislative branches of govt.  In the case of Britain itself, the judges have considerable discretion in interpreting laws but lack the power of judicial review-that is, the power to declare laws invalid. The Canadian judiciary soon appropriated to itself the power to invalidate laws that violated the federal provincial division of powers but were otherwise quite restrained.  The British parliamentary system is distinct in many ways from the U.S presidential-congressional system. There, the president and the 2 houses of the legislature( Congress) are independently elected, & no one is permitted to sit in more than one branch of govt.  The “separation of powers” means that executive, legislative and judicial powers are distributed to 3 separate branches of govt: the President, Congress, and the courts, respectively. Moreover, the U.S system is also characterized by “checks and balances” designed to ensure that the actions of any one branch of govt are subject to veto by another.  Individual members of the House of Representatives and the Senate have much more legislative power than their counterparts in the British parliamentary system both in terms of initiating bills and amending or vetoing those emanating from the executive. Canadian and American Federalism  Macdonald preferred a unitary state or legislative union in which the new central govt would have almost all the powers, & the provinces would be little more than municipalities. But Quebec & the Maritimes were not prepared to join such a system.  Quebec in particular demanded an autonomous provincial govt so that its linguistic and cultural concerns, such as education and civil law, would be placed in the hands of a French-speaking majority.  The logical compromise was a system that contained a central govt to deal with common purposes, and provincial govts to look after local concerns.  Federalism can be defined as a division of powers b/w central & regional govts such that neither is subordinate to the other. It can be contrasted, on the one hand, w/ a unitary govt or a legislative union, where all final authority resides with a central govt, & on the other hand, w/ a confederal govt, where all final authority resides with constituent govts. Canada had a quasi-federal system in 1867.  In the U.S federal system, for ex, the central govt was given only certain delegated powers, while the residual powers remained at the level of the states. Macdonald was determined to reverse this pattern, he essentially gave the provinces 16 enumerated powers and left the residual powers at the centre. Page 3 of 7 POL214 Week 1; Chaps 1,2 Intro & Foundations  Constitutional architects in both Canada & the U.S had to decide how the provinces or states would be represented at the national level. The Canadian compromise was to base the Senate on the principle of equal regional representation rather than equal provincial representation.  It is largely b/c the British system is designed to facilitate govt action & b/c the American system is designed to inhibit it that the fusion of the 2 systems in Canadian Confederation was such a distinctive phenomenon.  1 of
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