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Chapter 3
Chapter 3
Canada’s Constitution
After a Royal Proclamationin 1763 all of British North America became subject to English Law and governed by Great Britain.
From 1763 to the mid 1860’s the colonies of Ontario, Quebec, Nova Scotia, New Brunswick, Newfoundlandand Prince Edward Island were content to remain colonies of Great Britain.
Canada’s Constitution
In 1864 a group of 36
politicians met in
Charlottetown, Prince
Edward Island to discuss the
idea of a national union of
the colonies into one nation.
Three years later on July 1st
1867 The British government
passed the British North
America Act proclaiming
Canada as a country
The British North America Act or BNA Act was
Passed by the British Government
making Canada a country.
British North America Act, 1867
The BNA Act set out the
rules of how Canada
should be governed.
It did not allow for
Canada to make its own
laws or enter
international agreements
without the consent of
Great Britain.
A Federal System
After considering different systems of government, a Federal System in which the powers of government were divided between a central government (Ottawa) and provincial governments, was decided upon.
The head of state would remain the ruling monarch of Great Britain and Rule of Law was adopted into the new legal system.
Division of Powers
The BNA Act outlined the responsibilities
of each level of government. It was
determined that the federal government
would have power over matters that
applied uniformly over each province.
Provincial governments would have
powers over local matters which in turn
delegated issues to a third level or
municipal government.
Conflict of Power
Any residual or
remaining categories
were to be given to the
Federal Government.
Any new authority is to
be given to the Federal
Government such as air
travel and
telecommunications.
Doctrine of Ultra Vires
Each government has the power to
make laws only within its jurisdiction
known as intra vires.
If either the Federal Government or
Provincial government makes a law
outside of their jurisdiction it will be
considered ultra vires or beyond their
power and struck down.
Questions:
1. When was all of British North America brought under English Law?
2. Where was the first conference on a national union held? When?
3. When was the nation of Canada created and how?
4. What system of government does Canada have? What does Great Britain have? How are they different?
5. Give one example of a Federal power and one Provincial Power.
6. What level of government has residual power?
7. What is ultra vires and intra vires? Give an example of each.
Patriating The Constitution
In 1931 Great Britainpassed the Statute of Westminster giving Canada the power to create its own laws and enter into international agreements without British consent.
Canada still could not change its own constitution without approval of Great Britain. The Statute of Westminster (1931)
gave Canada the right to make its
own laws but not to change its
constitution.
Problems with the BNA Act
The BNA Act was a piece of British legislation and as long as it remained in Britain, Canada could not enjoy total independence.
Each time the Canadian government wanted to add laws to the Constitution it had to ask permission from the British Parliament.
The reason Canada was taking so long to patriate or bring home the constitution was that the Federal and Provincial governments could not agree on procedures to amend the constitution when it was brought home.
Problems with the BNA Act
The second problem with Patriatingthe constitution was the Federal and Provincial governments could not agree on the sale and management of natural resources.
Even though the BNA Act gave control of the fisheries and residual power to the Federal Government, the provinces objected.
The provinces argued that since the BNA Act gave them control of timberthat new resources such as natural gas, uranium, and oil should be under their control.
Problems with the BNA Act
In some cases where both sides claimed ownership of powers or programs the Federal Government agreed to share the cost. The Provinceswere to spend the money according to Federal guidelines.
These agreements became known as shared cost agreements and include things like healthcare.
Problems with the BNA Act
There was concern in
Canada as well that the
BNA Act did not contain
any civil liberties within it.
By bringing the
Constitution home it could
be changed to incorporate
basic civil rights, such as
freedom of speech.
The Constitution Act, 1982
In 1982 the Canadian Prime Minister, Pierre Elliot Trudeau gathered the Premiers of each province in an effort to patriate the Constitution.
After four days of debate an agreement was made (without Quebec), and the Constitution Act, 1982, which included the British North America Act, 1867, allowed for the patriation of the Canadian Constitution.
The Constitution Act, 1982
The Canadian Constitution Act, 1982 added four key elements: A principle regarding the equalizing of service
across Canada.
A clearer interpretation of who was responsible for control and management of natural resources.
A formula indicating what terms would be necessary to make future amendments to the Constitution.
A Charter guaranteeing individual rights and freedoms.
Principle of Equalization
Services such as healthcare, education,
and access to social services are to be
made equally available to all Canadians
this is known as the Principle of
Equalization.
In order for this to happen tax money
from wealthier provinces are dispersed
to smaller provinces to ensure the
equality of all Canadians.
Natural Resources
The new Constitution granted the Provincespowers over natural resources such as oiland natural gas.
Provinces cannotcharge higher prices or limit the supply when exporting non-renewable resources to another part of Canada.
Amending Formula
The new Constitution incorporated a formula to be followed if it ever was to be change in the future.
The new amending formula, requires the consent of Parliament and seven of the ten provinces representing 50% of the population.
If the issue is just with one province only, all that is needed is an agreement between that province and the Federal Government.
Constitutional Conflict
In 1987 in an effort to entice Quebec to sign the Constitution Act the Premiers reached an agreement called the Meech Lake Accord.
Opposition to the Accord grew across the country before it could be ratified, or passed into law.
People were upset with four issues with the Accord: Aboriginal rights were not addressed.
Political opposition from the Reform Party of Canada.
Canadians objected to giving Quebec “special status”.
It gave too much power to the Provinces and weakened the Federal Government.
Constitutional Conflict
A second attempt at Constitutional Reform was undertaken in Charlottetown, Prince Edward Island in 1992.
Once again there were disagreements on issues as: Aboriginal self-government
Special Status of Quebec
On October 29th, 54% of Canadians voted “no” in a national referendum and the Charlottetown Accord was dead.
Quebec has not signed the Constitution Act, 1982 but is still subject to the Constitution, and the citizens of Quebec are protected by the Charter of Rights and Freedoms, according to the Supreme Court of Canada.
Government & Law Making
The Federal and Provincial governments
are made up of three distinct branches:
The Executive Branch
The Legislative Branch
The Judicial Branch
Each branch has a part to play making,
interpreting and enforcing laws in
Canada.
Government & Law Making:
The Executive Branch (Federal) The Executive branch of the Federal
government consists of: The Prime Minister
The Cabinet
The Civil Service
The Prime Minister is the leader of the political party who wins the most seats in the House of Commons during an election.
The Cabinet are Members of Parliament (MP’s) who have been elected and appointed by the Prime Minister to a position of responsibility such as the Minister of Defense.
The Civil Service are people who work for the government in offices such as the Department of Agriculture or Department of Defense. They handle the everyday running of the country.
Parliament Hill in Ottawa, the home
to the Federal Government of
Canada.
The Federal Government
The Queen
Governor General
Prime Minister
Cabinet
Civil Service
Government & Law Making:
The Executive Branch (Provincial) The Executive branch at the Provincial
level works similar to the Federal level. It consists of: The Premier of the Province
The Cabinet
The provincial civil service
The Premier is the leader of the political party who wins the most seats in the Provincial Legislature.
The Cabinet is made up of Members of the Legislative Assembly (MLA’s) who have been elected and given a position of authority such as the Minister of Education.
The provincial civil service work in provincial departments handling the everyday running of the province, such as the Department of Transportation.
The Legislative Assembly in
Charlottetown,
Prince Edward Island.
The Provincial Government
The Queen
Lieutenant-Governor
Premier
Cabinet
Civil Service
Government & Law Making: The
Legislative Branch The Federal Legislative
Branch of government consists of the House of Commons and the Senate.
The House of Commons creates bills that will become laws or statutes.
The Senate reviews these laws or statutes and can ask to have them revised if necessary.
The House of Commons
The Senate
Government & Law Making: The
Legislative Branch
On the provincial
level the legislative
branch is called
the Legislature or
Legislative
Assembly.
The provinces do
not have Senates.The Provincial Legislature in
Charlottetown,
Prince Edward Island
Government & Law Making: The
Judiciary The judiciary is part of
government but separate from the other branches.
The judiciary is made up of justices, or judges that settle disputes, interpret the law and decide on punishments in Canada’s court system.
In Canada the nations highest court is the Supreme Court followed by the Provincial Court of Appeal, the Superior Court, and the Provincial Court.
The Supreme Court of Canada
Levels of the Court System
Supreme Court of Canada
Provincial Court of Appeal
Superior Court
Provincial Court
Government & Law Making:
Enacting a Statute
A bill is introduced in
the House of Commons
by the Minister and is
called a public or
government bill.
A private member, who
does not hold a Cabinet
post, may introduce a
bill called a private
member’s bill.
Enacting a Statute:
Idea
Draft Legislation
First Reading
Second Reading
Third Reading
Vote Held
Federal System
Steps Repeated in the Senate
Governor General Signs and the bill becomes law.
Government & Law Making: Lobby
Groups & Royal Commissions
Organizations that push for changes to Canadian laws and policies are known as lobby groups.
Royal Commissions are appointed by the Federal Cabinet to investigate national problems and report to Parliament. Their findings can cause the government to change laws and policy if necessary.
Questions:
1. What does the Federal Executive branch consist of?
2. What is a provincial Parliament called?
3. How do Senators get their job? How long do they have it for?
4. Why is it important that the justices be apolitical and the judiciary be separate from the other two branches of government?
5. Why has the judiciary gained more importance after 1982?
6. Why do private members bill’s not usually pass in the House of Commons?
7. What happens to a bill after it is passed in the Provincial system?
