RIGHTS AND FREEDOMS

Constitutional Law Part 2

Evolution of Canada’s Constitution• Enacted by the British Parliament (BNA Act 1867)

• Any amendments had to be passed by Britain (then how were we a country again?)

• Foreign Policy was dominated by Britain- if they go to war so do we (and we did)

• Due to our immense influence in WW1, changes were needed

The Statute of Westminster• 1926 Balfour report declared that Canada, Australia, New

Zealand and South Africa should no longer be subservient to Britain

• 1931 Statute of Westminster- Britain could no longer make laws for Canada

• Our laws could in a sense contradict Britain’s

• Example- Canada declared war on Germany on September 10, 1939- a week after Great Britain

Patriation of the Constitution• Oddly enough, our constitution was still in Britain

• No agreement could be reached on how to repatriate it

• Trudeau (PM) wished very much for a strong federal government

• Trudeau did some shady work but was able to include a new constitutional act, the Charter and an amending formula and get the Queen to bring the constitution to Canada

• Quebec fought hard against it and in the end didn’t sign it

Continued…• The Charter became entrenched in the constitution, which

means no laws passed by the government can violate the rights and freedoms set out in it

• April 17 1982- BNA Act was renamed- Constitution Act 1867 and Constitution Act 1982 was added:

• It included: Amending Formula and the Charter

• Canada is now fully independent and is connected to Britain though custom and symbolism

WHAT WE INHERITED FROM BRITAIN

BNA ACT• Outlined jurisdictional powers…who does what- who

doesn’t do what…what?

LEGISLATIVE SUPREMACY• The legislative branch of government is the highest legal and

political body of the land• Why is this important??

The Charter- An Aside• The Charter empowered the Courts (namely the Supreme

Court of Canada)

• Before the Charter, the courts would only rule laws invalid if they were ultra vires that government’s authority

• After the Charter, the courts could declare laws invalid and illegal if they infringed the Charter (What’s the formula called for all you Grade 11 Law kids?)

• Therefore the Charter could in effect overrule the elected body of people which contradicts Legislative Supremacy

Amending FormulaAmendment Who must agreeChanging the roles of the Queen, GG, L-GChanging the use of English or French nationallyChanging the Supreme CourtChanging the amending formula

The federal government and all ten provinces

Changing the borders between provincesChanging the use, provincially, of English or French

The federal government and the affected provinces

Changing the Senate or the H of C The federal government *Alberta has defied this

All other changes The federal government and seven of the ten provinces representing at least 50% of the population

The Meech Lake Accord• 1984- PM Brian Mulroney

• 1st attempt to bring Quebec into the Constitutional fold

• “distinct society” proposed and all provinces would get more power

• Trudeau saw giving Quebec special recognition would be unnecessary and potentially dangerous

• If Quebec has special status so too should Aboriginals (Elijah Harper)

• Meech Lake failed

Elijah Harper

Charlottetown Accord• 1992 Mulroney gave it another go

• Tried to eliminate “power of disallowance”- federal level could overpower the provincial level

• Aboriginal concerns were addressed

• Supreme Court’s purpose would become entrenched

• Senate would be changed to an elected body!!!

• Was defeated in 6 provinces and 1 territory

Quebec• 1995 Quebec Referendum

• Yes or No to separation- the question however was unclear

• Vote- 50.56% for NO- a very narrow victory for Canada

1995 Referendum• “Do you agree that Quebec should become sovereign

after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?”

Results

Yes or no Votes Percentage

 Yes 2,308,360 49.42%

 No 2,362,648 50.58%

Valid votes 4,671,008 98.18%

Invalid or blank votes 86,501 1.82%

Total votes 4,757,509 100.00%

Voter turnout 93.52%

Electorate 5,087,009

How about Guns• Pages 125- 126