Dec. 2: The Political Dynamics of Constitutional Reform 1981-Present. Senate Reference [Kit, p. 316] A. Cairns, “Constitutional Change…” [Kit, p. 138] R. Gibbons, “Shifting Sands…” [Kit, p. 163] Patriation Reference [Kit, p. 318] Meech Lake and Charlottetown Accord [Kit, pgs. 375 and 378]
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Balfour declaration: 1926 1981-Present
Statute of Westminster: 1931
Quiet Revolution: 1960 +
Trudeau becomes PM, 1968
Victoria Charter: 1971
Senate reference: 1979
Quebec referendum: 1980
Negotiations re patriation & Charter, 1980-81
Unilateral attempt to patriate by Trudeau, 1981
Patriation reference, 1981
Agreement of Nov. 5, 1981 (Que not inc’d)
Canada Act signed, April 1982
Quebec veto ref, 1982
Meech Lake Acc, 1987-1990
Charlottetown Accord, 1992
Quebec referendum: 1995Main Events surrounding Patriation controversy
Act respecting constitutional amendment, and resolution to recognize Quebec as a “distinct society.” (1996)
Calgary Declaration (1997)
Quebec secession reference (1998)
Social Union Framework Agreement (1999)
Clarity Act (2000)Main events (2)
Is there a convention of provincial consultation?
Yes: Martland, Ritchie, Dickson, Beetz, Chouinard & Lamer (substantial, not unanimous)
No: Laskin, Estey & McIntyre: No
Has the convention hardened into constitutional law?
No: Laskin, Dickson, Beetz, Estey, McIntyre, Chouinard & Lamer
Yes: Martland & RitchiePatriation reference (1981)
Debate over assymetrical federalism
Charter: a constraint on federalism
Charter’s popularity in QuebecAlan Cairns: three equalities [Kit, 138]
Meech Lake Accord: (unanimous)
“distinct society” clause
“constitutionalize” immigration agreements
Provinces submit names for vacancies to SCC
Any province can opt out of a shared cost program in areas of prov. jurisdiction & receive compensation if the province operates a similar program that meets “national standards.”
Compensation provided for any province opting out of any constitional amenendment under 7-50 formula that transfers prov powers to Ottawa.
Senate reform: prov’s nominate Senators to begin with
First ministers conf on economy annually
Annual constitutional conferences to discuss Senate reform, fisheries and other matters.Meech Lake Accord
Everything in Meech Lake plus: (unanimous)
Aboriginal rights strengthened, including right to negotiate self-government
Non-justiciable social charter
Measures to strengthen s. 121
Senate reform: 6 elected senators from each province, and 1 from each Territory, plus Aboriginal representation
SCC appointments: feds can appoint if provinces don’t nominate.
Guarantee of 25% of seats in H of C for Quebec
Prov. authority in areas of prov. Jurisdiction strengthened.
Fed powers of disallowance and reservation repealed
Fed declaratory power limited; require prov. consent.Charlottetown Accord
All Canadians are equal (unanimous)
Needs must be met everywhere
Social programs should be adequate and sustainable
Promote mobility within Canada
Public accountability and transparency
Evaluate results of programs
Fed-prov consultation, not unilateral actionSocial Union Framework Agreement (1999)
Stéphane Dion (unanimous)
Critical of “yes” side in 1995 referendum
Asked by PM to become Min of Intergovernmental Affairs in 1996 & context by-election
Proponent of “Plan B:” fed gov’t should be active in opposing Québec separatism.
Guy Bertrand (a former sovereignist leader in Québec turned federalist)
began a litigation process in which challenged the Québec government’s attempts to institute sovereignty on Charter of Rights grounds.
Québec government tried to block Bertrand’s challenge, so fed gov’t continued the litigation through the reference (part of “Plan B”)Québec Secession Reference (1998)
Argued in Feb, 1998 (unanimous)
Québec gov’t wouldn’t participate, so SCC appointed André Joli-Cœur as amicus curiae.
Amicus argued that reference jurisdiction of SCC is ultra vires.
Can an appeal court be given original jurisdiction? Yes.
Can an appeal court advise? In Canada, yes (despite rule about no specific mention).
Canada does not have as strict a separation of powers as U.S.
Advisory opinion different from a litigated case.Québec Secession Reference (2)
1. Under Can Const, can Québec secede unilaterally, without a constitutional amendment?
2. Under Int law, can Québec secede unilaterally?
3. If conflict between (1) and (2), which takes precedence?
Why did SCC write such a lengthy judgment?
1. Can Québec secede unilaterally under constitution?
Arguments in favour based on democracy.
What is democracy?
Our democracy is based on shared values, and unilateral secession puts these at risk. Thus, duty to negotiate.
Was SCC too activist, or not activist enough re “clear question” and “clear majority”?Québec Secession Reference (3)
2. Does international law give Québec the right to secede unilaterlally?
Amicus: right to self-determination belongs to all “peoples.”
Do Québeckers constitute a “people”?
SCC: not necessary to decide, because even if yes, the right only exists where a “people” is mistreated.
right to only arises under international law where “a people” is governed as part of a colonial empire, “is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.”Québec Secession Reference (4)
Spring of 2000: Bill C-20: “An Act to give effect to the requirement for clarity….”
Within 30 days of a prov legislature tabling a referendum question, H. of C. must declare whether question is “clear.”
If question considered “clear,” and a majority votes in favour, H of C must determine whether majority is “clear.” Consider:
Size of majority
Views of political parties
View of SenateQuébec Secession Reference (5)
After SCC decision: PQ gov’t seemed to support decision. requirement for clarity….”
Jacques-Yvan Morin (former Québec intergovernmental affairs minister): SCC decision means feds can’t refuse to negotiate, but can put up many obstacles to Quebec secession.
Kenneth McRoberts: The Trudeau strategy for Canadian unity has failed.
Québec can no longer claim that it can secede unilaterally.
The “duty to negotiate” secession in face of a “clear majority” vote in favour in a province is unprecedented in world history.Québec Secession Reference (6)
New directions: requirement for clarity….”
Is law the best way to implement a public policy?
If so, think about federalism issues in potential litigation. What mechanisms are there for cooperation?
A tool for judges
Education for lawyers and judges
Electronic law library
Public image of legal profession
Case management, ADR, mediation
Continuing education (prof. Dev. LLM at Osgoode)
Alternative careers for lawyers
Law reform (Canada Law Commission)Gall – last chapter
Federal administrative agencies (eg. CRTC, Hum Rts Comm): 640.
Ontario: 36 reg bodies (eg. Lab rels bd,WSIB – ½ million claims/yr), 44 licensing appeal tribunals, 8 compensation boards, 19 arbitration agencies, 95 advisory boards.
Leg’s try to keep courts from supervising admin agencies too closely. Why?
Should courts intervene in admin trib’s rarely, when there are clear issues of fairness?
Bogart: courts may be good, at times, in signaling unfairness, but are not usually good at finding solutions.W.A. Bogart, Courts & Country, Ch 4 (The administrative state and judicial review, kit 182)
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