1

Constitutional Law in Canada

Law 12Mr. Laberee

2

What is the constitution?

3

What is the constitution other than a piece of paper with a stain on it?

The constitution establishes government jurisdiction in Canada Ottawa is responsible for establishing health

benchmarks Victoria (or Edmonton, Winnipeg, Toronto…) is

responsible for health delivery The British parliament passed out first

Constitution: British North America Act (July 1st 1867) 4 provinces made up the country: Ontario,

Québec, New Brunswick, and Nova Scotia

4

Our constitution… a work in progress (just like us )

1867 BNA Act created Dominion of Canada, but not as a fully independent country Britain still controlled Canada’s foreign policy Canada’s highest court was the Judicial

Committee of the Privy Council (JCPC) in Britain▪ They could over turn decisions made by Canadian

courts Throughout the 20th century, increasing

Canada’s independence was a priority for our governments

5

Steps Toward True Independence

1931 Statute of Westminster: gave Canada control over its own foreign affairs

1949: Supreme Court of Canada became Canada’s highest court Note: both these changes required the consent

of the British government BUT… the BNA Act was a British Act

(statute) from their parliament, so Canada still didn’t control its own constitution▪ Only the government who makes a law can change it,

so only the British government could change the BNA Act

6

Repatriation Repatriation: The process of bringing the

BNA Act under the legal control of the Canadian parliament

From about 1950 on, Britain was willing to give Canada control over its constitution, but the federal and provincial governments feared having their powers reduced, and so they couldn’t agree on how to repatriate the BNA Act An important principle of politics: no level of

government wants to have their powers reduced or give up powers to another level of government

7

1981: PM Trudeau comes to an agreement with the provinces on how the Constitution should be written. He enters into negotiation with United Kingdom

The British parliament passes the Canada Act, 1982 repatriating the BNA Act, 1867, to Canada

Trudeau passed the Constitution Act, 1982 amending the act according to his agreement with the provinces The BNA Act, 1867 was renamed the Constitution Act,

1867 and formed a large part of the new 1982 Act, along with the addition of the Charter of Rights and Freedoms

To this day, Quebec says he betrayed them, as they did not approve the final draft

8

Formula for Constitutional Change

Called the “amending formula” any change to the Constitution requires:

consent of the Canadian parliament (MPs and Senators)

consent of at least 2/3 of the provincial legislatures (MLAs), who must represent 50% or more of the Canadian population

in practice, this makes change virtually impossible without the consent of Ontario and Quebec because they have most the population…

no changes have been made since 1982, as requirements of this formula haven’t been met

9

The queen proclaims the constitution