British North America Act, British North America Act, 18671867

Ordinary Act of UK ParliamentOrdinary Act of UK Parliament Defined institutions of government, e.g., Defined institutions of government, e.g.,

Senate, Governor General, House of Senate, Governor General, House of Commons, Provincial LegislaturesCommons, Provincial Legislatures

Distribution of powers and establishment of Distribution of powers and establishment of jurisdiction – e.g. provinces & educationjurisdiction – e.g. provinces & education

No bill of rightsNo bill of rights Most constitutional questions re: jurisdictionMost constitutional questions re: jurisdiction

04/22/2304/22/23 11

04/22/2304/22/23 22

Some Charter HistorySome Charter History Much opposition to idea of adopting a Much opposition to idea of adopting a

CharterCharter Revolutionary idea: Westminster model Revolutionary idea: Westminster model

and parliamentary supremacy replaced and parliamentary supremacy replaced with constitutional democracy and judicial with constitutional democracy and judicial reviewreview

Constitutional legality of Trudeau govt’s Constitutional legality of Trudeau govt’s plan to implement Charter challenged in plan to implement Charter challenged in “Patriation Case”“Patriation Case”

04/22/2304/22/23 33

Reference Re Resolution Reference Re Resolution to Amend the to Amend the

Constitution of Canada Constitution of Canada (1981)(1981)

Claim: Patriation unconstitutional owing to Claim: Patriation unconstitutional owing to lack of consent of all parties whose power lack of consent of all parties whose power affected – provincial & federal govt’saffected – provincial & federal govt’s

04/22/2304/22/23 44

British North America Act, 1867 British North America Act, 1867 BNA ActBNA Act

No amending formulaNo amending formula Ordinary act of UK ParliamentOrdinary act of UK Parliament Thus, no means available to Canada to Thus, no means available to Canada to

amend/alter amend/alter except except to make request to UK to make request to UK Parliament to make desired changesParliament to make desired changes

Colonial legacyColonial legacy

04/22/2304/22/23 55

QuestionsQuestions

(1) Was it unconstitutional for Trudeau (1) Was it unconstitutional for Trudeau government to request the UK parliament government to request the UK parliament to to “patriate”“patriate” the Constitution of Canada the Constitution of Canada without provincial assent?without provincial assent?

(2) If provincial assent required, was (2) If provincial assent required, was unanimousunanimous assent required? assent required?

04/22/2304/22/23 66

AnswersAnswers Yes, according to Yes, according to constitutional constitutional

conventionconvention, but , but notnot constitutional law constitutional law..

(2) Unanimous assent not required, but (2) Unanimous assent not required, but “a “a substantial measure”substantial measure” of provincial of provincial assent requiredassent required

04/22/2304/22/23 77

Reasons for JudgmentReasons for Judgment The Constitution of CanadaThe Constitution of Canada = =

Constitutional Constitutional LawLaw & Constitutional & Constitutional ConventionsConventions (Dicey) (Dicey)

Constitutional LawConstitutional Law = Statutory & = Statutory & Common Law rulesCommon Law rules

04/22/2304/22/23 88

Constitutional ConventionsConstitutional Conventions unwritten social rulesunwritten social rules based on based on non-judicialnon-judicial custom and custom and

precedent precedent regulate activities of parts of the state: regulate activities of parts of the state:

e.g. executive, legislative and judicial e.g. executive, legislative and judicial branchesbranches

sometimes reduced to written wordsometimes reduced to written word

04/22/2304/22/23 99

Constitutional Conventions, Constitutional Conventions, cont’dcont’d

not enforceablenot enforceable by Courts by Courts no formal legal sanctions for breachno formal legal sanctions for breach usually usually politicalpolitical sanction (e.g. removal of sanction (e.g. removal of GG from office)GG from office) generally circumscribe “wide powers, generally circumscribe “wide powers,

discretions and rights which conventions discretions and rights which conventions prescribe should be exercised only in a prescribe should be exercised only in a certain limited manner, if at all.” certain limited manner, if at all.”

04/22/2304/22/23 1010

Reasons for Judgment, cont’dReasons for Judgment, cont’d Convention existed requiring assent of Convention existed requiring assent of

provincial govt’s on matter affecting provincial govt’s on matter affecting provincial powersprovincial powers

Adding Charter Adding Charter significantly significantly affected affected provincial powersprovincial powers

Therefore Therefore “substantial measure”“substantial measure” of of provincial assent requiredprovincial assent required

04/22/2304/22/23 1111

Reasons for Judgment, cont’dReasons for Judgment, cont’d

SCC did not define “substantial”SCC did not define “substantial”

Trudeau government assumption: assent Trudeau government assumption: assent of all provinces except one satisfied of all provinces except one satisfied criterion of substantial assentcriterion of substantial assent

04/22/2304/22/23 1212

Reasons for Judgment, cont’dReasons for Judgment, cont’d

Quebec later challenged assumption, but Quebec later challenged assumption, but point was mootpoint was moot

Charter already “patriated”Charter already “patriated”

04/22/2304/22/23 1313

Pre-Enactment Concerns Re: Pre-Enactment Concerns Re: Charter of RightsCharter of Rights

Substituting Parliamentary supremacy with Substituting Parliamentary supremacy with entrenched rights against gov’tentrenched rights against gov’t

Judicial review by unelected judges Judicial review by unelected judges Unsettles too much settled lawUnsettles too much settled law

Compromise: Sec 1 & 33Compromise: Sec 1 & 33