Constitutional Constitutional GovernmentGovernment

Chapter 5Chapter 5

What does a constitution do?What does a constitution do?

1.1. Constitutes a regimeConstitutes a regime

2.2. Limits the powers of Limits the powers of governmentgovernment

3.3. Provides the ground Provides the ground rules for how rules for how government government operates.operates.

British North America Act, March 29, 1867Since 1982, this act is known as the Constitutional Act, 1867.National Archives of Canada

What makes up a constitution?What makes up a constitution?

1.1. preamblepreamble

2.2. organizational chartorganizational chart

3.3. amending clauseamending clause

4.4. bill of rightsbill of rightsConstitution Act, 1982This act allowed for the patriation of the Constitution and was passed after a political dispute that divided the Canadian provinces. It gave Canada a Charter of Rights and Freedoms and a general amendment formula, which allows Canadians the opportunity to make changes to the Constitution.National Archives of Canada

What makes up the Canadian What makes up the Canadian Constitution?Constitution?

1.1. The Canadian The Canadian Constitution is not a Constitution is not a single document, but a single document, but a series of documents.series of documents.

2.2. The first document is The first document is the BNA Act.the BNA Act.

3.3. Then there is the …Then there is the …

Manitoba Act, 1870Manitoba Act, 1870 Ruperts Land and NWT Ruperts Land and NWT

orderorder BC Terms of UnionBC Terms of Union Constitution Act, 1871Constitution Act, 1871 PEI Terms of UnionPEI Terms of Union Parliament of Canada Parliament of Canada

Act, 1875….Act, 1875…. There are 30 different There are 30 different

acts and amendments acts and amendments that make up the 1982 that make up the 1982 Constitution.Constitution.

The main Constitutional ComponentsThe main Constitutional Components

1.1. The Constitution Act, 1867The Constitution Act, 1867 British North America ActBritish North America Act

2.2. Amendments to the Constitution Act, Amendments to the Constitution Act, 18671867

1907-19641907-1964

3.3. British Statutes and Orders-in-CouncilBritish Statutes and Orders-in-Council Statute of Westminster, 1931 declared Statute of Westminster, 1931 declared

Canada to be independent of Britain.Canada to be independent of Britain.

4.4. Organic Canadian StatuesOrganic Canadian Statues Creation of Manitoba, AlbertaCreation of Manitoba, Alberta

5.5. Constitution Act 1982Constitution Act 1982

How was Canada constituted?How was Canada constituted?

1.1. As a parliamentary As a parliamentary democracydemocracy

2.2. As a federal As a federal government, where government, where the federal the federal government was government was highly centralizedhighly centralized

How did the Federal Division of Power How did the Federal Division of Power favour the federal government?favour the federal government?

1.1. Section 91 gave the federal government Section 91 gave the federal government 29 classes of jurisdiction.29 classes of jurisdiction.

2.2. Some of the big ticket items were:Some of the big ticket items were: regulation of trade and commerceregulation of trade and commerce any mode or system of taxationany mode or system of taxation military and defencemilitary and defence currency and coinage.currency and coinage. public debt, property, credit, postal servicepublic debt, property, credit, postal service

What did the provinces get?What did the provinces get?

1.1. At the time of federation the provinces At the time of federation the provinces got the minor areas including:got the minor areas including:

local or private matters in the provincelocal or private matters in the province borrowing money on behalf of the provinceborrowing money on behalf of the province licenses to raise provincial revenuelicenses to raise provincial revenue justice in the province.justice in the province.

2.2. In section 92 the province received In section 92 the province received classes of subjects that were not classes of subjects that were not considered important at the time.considered important at the time.

Section 92: what the provinces gotSection 92: what the provinces got

1.1. control of public control of public landslands

2.2. property and civil property and civil rightsrights

3.3. municipal municipal institutionsinstitutions

4.4. health and welfarehealth and welfare

What is a supremacy clause?What is a supremacy clause?

1.1. Because the constitution delineates both Because the constitution delineates both the separation of powers as well as what the separation of powers as well as what powers the two governments share, the powers the two governments share, the constitution also establishes which side constitution also establishes which side has more power in cases of has more power in cases of disagreement.disagreement.

2.2. The supremacy clause gives residual The supremacy clause gives residual power to the federal government (POGG power to the federal government (POGG clause).clause).

More ways the federal government More ways the federal government can control the provincescan control the provinces

1.1. disallowance: the federal government disallowance: the federal government rules a provincial law null and void within rules a provincial law null and void within one year of its passage (this has been one year of its passage (this has been used 110 times, the last in 1943).used 110 times, the last in 1943).

2.2. reservation: the bill has passed the reservation: the bill has passed the provincial legislature but is not passed by provincial legislature but is not passed by the lieutenant governor.the lieutenant governor.

Ways to settle disputesWays to settle disputes

1.1. Because Canada is based on a Because Canada is based on a parliamentary democracy there were few parliamentary democracy there were few ways to settle disputes: the federal ways to settle disputes: the federal government usually took control.government usually took control.

2.2. The judiciary was used in limited cases The judiciary was used in limited cases and in the early days these went to the and in the early days these went to the Judicial Committee of the British Privy Judicial Committee of the British Privy Council (JCPC).Council (JCPC).

How can the Canadian constitution How can the Canadian constitution be amended?be amended?

1.1. With great difficulty.With great difficulty.2.2. The 1982 The 1982

Constitution Act set Constitution Act set up the formula for up the formula for future amendmentsfuture amendments

3.3. Need resolutions in Need resolutions in the HoC and Senate the HoC and Senate as well as the 2/3 of as well as the 2/3 of legislative legislative assemblies with assemblies with 50% of population.50% of population.

Constitutional ChangeConstitutional Change

1.1. Initial change was the territorial borders of Initial change was the territorial borders of the provinces and the territories.the provinces and the territories.

2.2. Second was achieving autonomy from Second was achieving autonomy from Britain, and the abolition of court of Britain, and the abolition of court of appeals for the Judicial Committee of the appeals for the Judicial Committee of the Privy Council.Privy Council.

3.3. Third was achieving a formula by which Third was achieving a formula by which Canada could patriate the constitution.Canada could patriate the constitution.

4.4. Fourth was integrating civil liberties into Fourth was integrating civil liberties into constitutional protection.constitutional protection.

Failed Constitutional Change post Failed Constitutional Change post 19821982

Meech Lake accordMeech Lake accord Main theme was distinct societyMain theme was distinct society Enlarged group rightsEnlarged group rights Left out a number of groups, women, natives.Left out a number of groups, women, natives. Called the Quebec round of constitutional talksCalled the Quebec round of constitutional talks

Charlottetown AccordCharlottetown Accord Canada Clause Canada Clause Triple- E senateTriple- E senate Aboriginal Self-governmentAboriginal Self-government Division of PowersDivision of Powers

Why do we have a bill of rights?Why do we have a bill of rights?

1.1. The British do not have a bill of rights.The British do not have a bill of rights.

2.2. One reason is the nature of how a One reason is the nature of how a parliament in constructed.parliament in constructed.

3.3. Parliament is supremeParliament is supreme

4.4. The Americans rejected parliamentary The Americans rejected parliamentary sovereignty and all it entailed.sovereignty and all it entailed.

5.5. ““We the people” acknowledges that the We the people” acknowledges that the people give the power to the governmentpeople give the power to the government

A bill of rights embedded in the constitution A bill of rights embedded in the constitution doesn’t make sense in a parliamentary doesn’t make sense in a parliamentary

system.system.

1.1. It’s counterintuitive to have parliament It’s counterintuitive to have parliament supremacy and the notion of rights.supremacy and the notion of rights.

2.2. To have the courts adjudicate disputes To have the courts adjudicate disputes between citizens and governments takes between citizens and governments takes power away from parliament.power away from parliament.

3.3. The notwithstanding clause, section 33 The notwithstanding clause, section 33 gives all parliaments in Canada the right gives all parliaments in Canada the right to veto a court decision.to veto a court decision.

So why do we have a bill of rights?So why do we have a bill of rights?

1.1. Because it is part of Because it is part of a global rights a global rights movement.movement.

2.2. Trudeau envisioned Trudeau envisioned a “just society” and a “just society” and the bill of rights the bill of rights would make Canada would make Canada part of the global part of the global movement.movement.

What exactly does the Charter do?What exactly does the Charter do?

1.1. It protects the citizens from government.It protects the citizens from government.2.2. Constitutions in effect limit the power of Constitutions in effect limit the power of

government in the traditional sense.government in the traditional sense.3.3. These rights are known as negative These rights are known as negative

rights.rights.4.4. They are the right to be free from They are the right to be free from

government.government.5.5. Canada has both positive and negative Canada has both positive and negative

rightsrights

What a charter does not doWhat a charter does not do

1.1. It does not deal with private matters.It does not deal with private matters.

2.2. The constitution protects us from The constitution protects us from government, but is not intended to government, but is not intended to protect us from each other.protect us from each other.

3.3. This does not mean that people do not This does not mean that people do not try to use the constitution to that end.try to use the constitution to that end.

How the British have a How the British have a “Constitution” similar to Canada“Constitution” similar to Canada

The British do have some The British do have some constitutional documents in constitutional documents in the sense that the have the sense that the have documents that “constitute” documents that “constitute” the regime.the regime.

The Magna Carta, Petition of The Magna Carta, Petition of Rights, Parliament Acts, etc all Rights, Parliament Acts, etc all act to “constitute” the regime.act to “constitute” the regime.

These are not combined as These are not combined as Canada did into one Canada did into one constitutional document.constitutional document.

How the British Constitution differs How the British Constitution differs The British do not have the separation of power The British do not have the separation of power

documents such as secs. 91 and 92 of the BNA documents such as secs. 91 and 92 of the BNA ActAct

Why?Why? Because they are a unitary state and do not Because they are a unitary state and do not

need to divide the powers between levels of need to divide the powers between levels of government.government.

Over time, they have devolved power to Over time, they have devolved power to subordinate units of government.subordinate units of government.

But these are not constitutional and therefore But these are not constitutional and therefore can easily be rescinded by acts of parliament.can easily be rescinded by acts of parliament.

The British do not have a constitutionally The British do not have a constitutionally entrenched Bill of Rightsentrenched Bill of Rights

Do people in Britain lack basic rights?Do people in Britain lack basic rights? No, they have rights established through No, they have rights established through

both the legislature and common law both the legislature and common law experience.experience.

The rule of law provided the British people The rule of law provided the British people with the protection of rights varying from with the protection of rights varying from private property to freedom of speech.private property to freedom of speech.

Not having a constitution has benefits as Not having a constitution has benefits as well.well.

The American ConstitutionThe American Constitution

Based on a revolutionary Based on a revolutionary traditiontradition

Power is derived from the Power is derived from the governed.governed.

Government must be Government must be limitedlimited

If angels were to govern If angels were to govern men, neither external nor men, neither external nor internal controls on internal controls on government would be government would be necessary.necessary.Fourth President

1809-1817

How the Americans limited How the Americans limited governmentgovernment

1.1. separation of powersseparation of powers

2.2. checks and balanceschecks and balances

3.3. federalismfederalism

4.4. bill of rightsbill of rights