Government and statue law
Canada’s constitution
What is a constitution?
It is a document the creates the framework or blueprint for how a country should be run and what type of country it should be.
Created in 1867 as an act of the British Parliament
Some provinces were content with living under the British laws but historical events changed their view
During the civil war 36 men met in P.E.I to create a framework that would make Canada an independent country while still preserving their relationship with Britain.
British North America act of 1867
John A. McDonald was made the first prime minister
The British North America act was passed and established the dominion of Canada an independent country rather than a colony of Britain.
This act still plays a significant role in Canada’s constitution. It had rules of how Canada should be governed and what kind of country it should be.
It was still a constitution made for a colony rather than an independent country.
Canada was not allowed to enter international trade agreements without the approval of Britain.
It couldn’t add on or make adjustments to the constitution without permission from the British parliament
On March 29 1867, the act decided to recognize Canada as it’s own political entity in the British Empire
Federal system
At first Canada thought about using the unitary system of Britain but it was not practical for a country as big and as diverse as Canada.
As a compromise they suggested using the federal system
In the federal system the governing responsibilities are split between 2 levels of government: the central government and the provincial government
Central government overrules the provincial government if doing so is in the best interest of Canada
Contains the unwritten conventions the British parliamentary system like having the monarch as head of state
Division of powers
To avoid situations like the American civil war the constitution would assign roles that affected the whole country like defence and currency
Section 93 of the act assigned the responsibility of education to the provinces
In order to protect catholic minority in Ontario and the Protestant minority in Québec so they can have their own school systems
Problems with the act
- Whenever Canada wanted to make changes or amend the constitution they had to ask Britain for permission
- There was confusion when it came to the division of powers like who was responsible for natural resources
- People were concerned that nothing in the constitution specifically granted civil liberties.
Patriating the constitution
Both the provincial and federal governments tried many times to bring the Constitution to Canada but since both sides refused to compromise their efforts failed.
After Pierre Trudeau was elected one of his mandates was to patriate (bring home) the Constitution.
After many attempts he threatened to bring back the constitution without their provincial approval
it would be an unconstitutional move so he took his case to the Supreme Court and won but there would be consequences in his future actions if he wished to proceed
He was told that it would be an unwise move and it would go against the BNA act (British North American)
In 1981in a last attempt to come to an agreement Pierre Trudeau called a meeting with the premiers
The aboriginal people managed to amend the proposed bill to reinstate certain clauses protecting their rights
The province of Québec consistently fought to have more economic and cultural powers.
The 9 premiers without the presence of Québec premier René Levesque agreed on a compromise bill.
Lévesque was furious and efused to sign the bill, but the the proposed bill still came into being
The new Constitution act came into play on April 17, 1982 after it was signed by Queen Elizabeth the second and Trudeau
The new constitution included 4 key elements
A principal of equalization
A clarification of responsibility for natural ressources
An amending formula for future changes to the constitution
A charter guaranteeing individual rights and freedom
The rights of aboriginal people
Their rights were recognized and affirmed
Depending on who it will affect amendments will need either both the parliament and 2/3 of the provinces agreement or the agreement of just the federal government
Parliament has control over ressources like Alberta’s natural gas and Newfoundland and Labrador’s oil
But provinces cannot charge higher prices and limit non renewable resources in other parts of Canada
Made essential services like education, healthcare, and social services available to all Canadian residents
Any law or government action violating the charter will be struck down and considered invalid
Constitutional conflict
Québec is subject to the constitution and we’re protected by the charter of rights and freedom even thought they didn’t sign the constitution act of 1982
Their lack of consent was still a problem
Québec appealed to the Supreme Court to separate from Canada without Canada’s agreement
The federal government submitted three questions to the Supreme Court
- Under the constitution of Canada can the National Assembly, legislature, or government of Québec declare unilateral independence?
- Does international law give Québec the right to withdraw unilaterally?
- If Canadian and international law conflict on the right of a unilateral Declaration of Independence which takes precedence?
Their appeal was denied
Government and law making
The federal and provincial governments are made up of 3 distinct branches
Executive branch
Legislative branch
Judiciary
Their role is to set policy, present budgets to the legislature, propose legislation, and implement laws passed by the legislature.
Composed of the Prime minister and members of cabinet
Governor General is the symbolic head of the federal executive branch
Provincial level executive branch works in the same way with the premier and their cabinet form the executive branch with the Lieutenant as the symbolic head.
The role of the legislative branch is to make laws
Federal legislative branch is made up of elected members of the parliament who sit in the House of Commons and senators who are appointed and sit in the senate.
The senate checks on laws passed by the MPs in the House of Commons
They have the power to defeat and send back bills for revision that were passed in the House of Commons
Is to act as an independent third party in legal disputes to clarify the law
Made up of judges that determine disputes, interpret the law, and decide on punishments in Canada’s court system
The Supreme Court is Canada’s highest level of court appeal
There are three levels of provincial courts
The provincial court of appeal
The superior court
The provincial court
Passing a law
Passing laws lies in the hands of the government
Steps to passing a law or bill
- An idea comes from the royal commissions, advisory boards, ministers initiative, or individual or group interest
- Draft legislation
- The first reading
Bill is introduced
Minister might discuss the purpose of the bill
Background information is given
The bill is printed
- Second reading
Principal of the bill is debated
Minister may make a speech to pen the debate
Bill may be referred to committee for revision and further examination
- Third reading
Statue of Westminister
The BNA act was amended as statues were added, deleted, or rephrased
The Statue of Westminister that was passed in 1931 brought in 2 important constitutional changes
- It gave Canada the independence to make its own laws without Great Britain
- It granted Canada the independence to make agreements including trade agreements with other countries
Debate is restricted
No amendments can be moved
- Vote is held
Federal system
Steps are repeated in the senate
Governor general
Royal assent and proclamation
Provincial system
Lieutenant governor
Royal assent and proclamation
The role of individuals and interest group
Suggestions to make new laws or amendments can be made by individuals, legal experts, or lobby groups
Lobby groups
Organizations or lobby groups like mothers against drunk driving and coalition for gun control have managed to change the law
They changed the law regarding drunk driving and fire arms registration
They also changed the public’s opinion on these issues
Legal education action changed the law on matters concerning sexual assault and pay equity
And environmental lobby groups have convinced the legislatures to pass laws the protect the environment
The free Willy bill was also created by a lobby group to end whale captivity in Canada
To voice their opinions to the public they use methods like protests, rallies and petitions
Royal commissions
They also influence changes in the law
They are appointed by th federal cabinet
They conduct impartial investigations of specific national problems
Municipal powers
Aboriginal self government
Residual powers
Docterine of ultra vires and infra vires
Section 92 of the BNA act gave the provinces authority over municipal services
The provinces gave the responsibility of local matters to the third level of government (municipalities and townships)
Gave them more control over local issues
Federal governments have responsibility over Indian affairs and Inuit affairs
Indian bands under the Indian act have the power to may act like local governments and make bylaws for their reserve lands
According to the BNA act area that aren’t specifically assigned to provincial jurisdiction fall under federal jurisdiction
These are called residual powers
Infra vires means within the power of the government to pass laws
Ultra vires means beyond the power of government to pass laws
This is brought in when both governments claim jurisdiction and attempt to make a law