Chapter 17.docx

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University of Toronto Scarborough
Political Science
Jennifer Levine

Chapter 17: the Canadian constitution and constitutional change  We can define a constitution as the whole body of fundamental rules and principles according to which a state is governed  The constitution provides a basic framework for the operation of the whole political system Components of the Canadian Constitution  Unlike the united states and many other countries, Canada does not have a single document called “the constitution”, instead some parts of it are written and other parts are unwritten.  The principal components of the Canadian constitution are as follows: o The constitution act, 1867 o Formal amendments to the constitution act, 1867 o British statutes and orders in council o Organic Canadian statutes o The constitution act, 1982 o Judicial decisions o Constitutional conventions The constitution act, 1867  Originally named the British North America (BNA) act, in 1867, which was renamed in 1982, the Constitution Act, 1867  This was the law passed by the British parliament that joined Nova scotia, new Brunswick, Ontario, and quebec together as the new dominion of Canada  However the constitution act was very brief on the executive and judicial branches of government, and it included virtually nothing about limiting the powers of government in relation to the people  The act also lacked any mention of the means to amend the act, but since it was a statute of the British parliament, most formal changes have been made by the British Parliament at Canadian request Amendments to the constitution act, 1867  This is indeed the second ingredient of the Canadian constitution  Schedule 1 to the constitution act, 1982, lists 17 amendments to the 1867 act made by the british parliament and another eight made by the Canadian parliament  The most important of the 17 British amendments to the 1867 act are as follows o Constitution act, 1907: established a new regime of federal-provincial grants o Constitution act, 1915: established a new distribution of Senate seats o Constitution act, 1930: transferred ownership of natural resources to western provinces o Constitution act, 1940: added unemployment insurance to the list of federal powers o Newfoundland act, 1949: joined that province to Canada o Constitution act, 1951: allowed Ottawa to legislate with respect to old age pensions o Constitution act, 1960: made it mandatory for provincial superior court judges to retire at age 75 o Constitution act, 1964: extended federal power in the concurrent field of old age pensions British statutes and orders in council  The third major component of the Canadian constitution is a collection of british statutes and orders in council  Chief among these is the statute of westminister, 1931, which declared Canada to be totally independent of Britain  Then there were four main british orders in council – that is, decisions of the British Cabinet- that added the northwest territories, British Columbia, and PEI to Canada.  These along with the 1949 amendment that incorporated Newfoundland and Labrador, completed the territorial dimensions of what we now know as Canada, and are included in the constitution for that reason Organic Canadian Statutes  “organic” Canadian statutes are laws passed by the Parliament of Canada that are of special or quasi-constitutional status Constitution Act, 1982  This was in a sense the last amendment to the 1867 constitution act to be passed by the british parliament  The Canada act passed by the British parliament, finally terminated all british authority over Canada  The second main aspect of the constitution act, 1982 was the Charter of rights and freedoms  The charter guaranteed fundamental, democratic, legal, egalitarian, and linguistic rights and freedoms against government intrusion.  In other words, the charter of rights and freedoms imposed formal new limitations on the government in interaction with its citizens  As far as division of powers was concerned, a new section, 92A, was added that clarified and extended provincial powers over natural resources Judicial decisions  The definition of the constitution must also include judicial decisions that have clarified or altered provisions of the 1867 act or other parts of the constitution  The largest body of such decisions consists of the judgements of the Judicial Committee of the Privy Council (JCPC), canada’s final court of appeal until 1949, which significantly addected the division of powers between the federal and provincial governments Constitutional conventions  These are defined as unwritten rules of constitutional behaviour that are considered to be binding by and on those who operate the constitution but that are not enforceable by the courts  Conventions develop from traditions and through constant recognition and observance become as established, rigid as if they were written down  Many of these informal rules have been inherited from Britain, some have been modified in the Canadian environment, and others are unique to Canada The quest for constitutional change A domestic constitutional amending formula  A constitution should not be too easy to amend but neither should it be impossible  Attempts to find a domestic constitutional amending formula began in 1927  A domestic constitutional amending formula was finally adopted as part of the constitution act, 1982, pat V of the act actually provided for five such formulas, depending on the subject matter of amendment: o Unanimous consent of federal and provincial legislatures o Consent of parliament and seven provincial legislatures represing at least 50% of the population o Consent of parliament and one or more provinces affected o Consent of parliament alone o Consent of provincial legislature alone A constitutional charter of rights  John Diefenbaker had a Bill of rights passed in 1960 when he became prime minister  The bill had many constitutional weaknesses however, and this lead many observers to recommend constitutionalizing the bill The quiet revolution in Quebec  Doesn’t say much in the book but i’m sure we should know it The Victoria charter  Many
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