History of Constitutional Law

in Canada

Development of Canadian Constitution

BNA Act - 1867(British North American Act) – British Statute•Dominion of Canada formed•British Privy Council – Canada’s highest court•Little control of our affairs (foreign)

Statute of Westminster – 1931•British Statute – Giving Canada control over its foreign affairs

Supreme Court of Canada – 1949•Established and becomes Canada’s highest court

Constitution Act 19821. Canada given an amending formula – ability to change our own constitution = complete independence from Britain2. Canadian Charter of Rights and Freedoms

Our road to independence

Defined areas of federal and provincial jurisdiction (federal more powerful) – only 2

BNA Act - 1867

• British North American Act – 1867

• Outlined the powers of the Canadian government to make laws and establish the levels of government for making law (federal / provincial)

British North America Act

•Each level (federal and provincial) has exclusive control over their responsibilities, but the federal government could overrule a provincial law if in best interests of all Canadians

•Also, residual power goes to federal government

•Included:• UK parliament • Monarch (Queen/King of Britain) of head of state • Principle of Rule of Law

Patriating the Constitution• Statute of Westminster (1931) – legislation passed in UK

amending (changing) BNA Act that extended Canada’s law making powers so that they could make laws independently, even if they contradicted UK law & allowed Canada to make agreements with other countries

• Problem – as long as BNA Act in UK, Canada had to ask UK to add laws to constitution

• Another problem – confusion with division of powers & resulting disputes

Bringing Home the Constitution - 1982• Canada could not change the BNA Act, 1867

since it lacked an amending formula – (being a British Statute)

• The Constitution Act – In addition to the amending formula, the Canadian Charter of Rights and Freedoms makes up the Constitution Act, 1982.

• Pierre Trudeau re-patriated (brought home) the Constitution without support of all provinces • all except Quebec agreed in 1982

http://www.cbc.ca/archives/categories/politics/prime-ministers/pierre-elliott-trudeau-philosopher-and-prime-minister/bringing-home-the-constitution.html

The Constitution

• A written document that sets down all the important rules for how a country operates

The Canadian Charter of Rights and Freedoms

• Guarantees rights to all Canadians (since 1982)

• Citizens can make a case that their rights are being denied

• Rights vs. privileges• Driving is a privilege,

earned, and can be revoked

Amending Formula Today

Amendment Who must agree

Changing 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

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

Federal PowersConstitution Act – 1867 (Section 91)

• POGG• Gave federal government power to enact laws that were needed to maintain POGG• 2 main powers:

• any genuinely new power not set out in the BNA act• veto provincial powers in national emergency

• Criminal Law• Unemployment insurance• Banking, currency, and coinage• Federal penitentiaries• Marriage and divorce• Postal services• Aboriginal peoples and their land

Provincial Powers(Section 92) – Constitution Act - 1867

• Property and civil rights• Marriage ceremonies• Police forces and provincial courts• Highways and roads• Provincial jails• hospitals

Municipalities• Not outlined in the Constitution Act, 1982• Creations of the province – subject to provincial law/rule

• Sewage and garbage disposal• Roads, sidewalks, snow removal• Street lighting, parks• Libraries, public transportation, pools and arenas

• Local police and firefighting

Government Bills / Statutes – Federal The process through which an idea becomes a law

An Idea•Awareness that something needs to change

•May begin withAny MP

•Draft up a new Policy which is Checked by Lawyers

•This is a bill

First Reading Second Reading

•Bill is readTo the HouseOf Commons

•No discussion

•No debate

•No Vote

•MPs may question and debate new bill

•Vote

CommitteeReport Stage

•Studied clause by clause by a standing committee of MPs from all parties

•Public and expert input

•Vote and make changes

Third Reading

•More discussion and debate in the House of commons

VOTEIn H of C

Senate

•Federal level only

•Follows same process (3 readings) - vote

•Any changes – sent back to the H of C

Royal Assent

•Signed by the GG or Queen – turns bill into an ‘act’ which turns it into law

Government Bills - Provincial

•Similar process to federal process

•Occurs in the Provincial Legislative Assembly (Ontario – Queen’s Park)

•Involves MPPs (3 readings)

•Does not involve the Senate (0 readings)

•Must be signed by the Crown (Lieutenant-governor)

Government Bills / Bylaws - Municipal• Similar process to that of a federal bill

• Occurs at a City Hall

• City councilors (Elected City Council)

• Signed by the mayor

Recap1. How did the British North American Act lay down the structure for the

Canadian Constitution?2. Discuss the importance of the Statute of Westminster.3. Why did it take so long for Canada to get control of its own constitution?4. Distinguish between the Constitution Act, ,1867, and the Constitution Act,

1982.5. Distinguish between sections 91 and 92 of the Constitution Act, 1867 by

discussing the constitutional division of power6. What is the third level of government in Canada? What types of laws does it

pass?7. Why is the House of Commons the most powerful part of Parliament?8. What are the responsibilities of Cabinet ministers?9. Compare the passage of federal legislation with that of provincial legislation.

How are they similar? How are they different?10. Think of a change you would like to see in the law. Describe the process by

which this idea could become a reality. Clearly identify the steps needed to pass a bill into a law.