Constitutional Government Chapter 5
What does a constitution do? • Constitutes a regime • Limits the powers of government • Provides the ground rules for how government operates. British North America Act, March 29, 1867Since 1982, this act is known as the Constitutional Act, 1867.National Archives of Canada
What makes up a constitution? • preamble • organizational chart • amending clause • bill of rights Constitution Act, 1982This act allowed for the patriation of the Constitution and was passed after a political dispute that divided the Canadian provinces. It gave Canada a Charter of Rights and Freedoms and a general amendment formula, which allows Canadians the opportunity to make changes to the Constitution.National Archives of Canada
The Canadian Constitution is not a single document, but a series of documents. The first document is the BNA Act. Then there is the … Manitoba Act, 1870 Ruperts Land and NWT order BC Terms of Union Constitution Act, 1871 PEI Terms of Union Parliament of Canada Act, 1875…. There are 30 different acts and amendments that make up the 1982 Constitution. What makes up the Canadian Constitution?
The main Constitutional Components • The Constitution Act, 1867 • British North America Act • Amendments to the Constitution Act, 1867 • 1907-1964 • British Statutes and Orders-in-Council • Statute of Westminster, 1931 declared Canada to be independent of Britain. • Organic Canadian Statues • Creation of Manitoba, Alberta • Constitution Act 1982
How was Canada constituted? • As a parliamentary democracy • As a federal government, where the federal government was highly centralized
How did the Federal Division of Power favour the federal government? • Section 91 gave the federal government 29 classes of jurisdiction. • Some of the big ticket items were: • regulation of trade and commerce • any mode or system of taxation • military and defence • currency and coinage. • public debt, property, credit, postal service
What did the provinces get? • At the time of federation the provinces got the minor areas including: • local or private matters in the province • borrowing money on behalf of the province • licenses to raise provincial revenue • justice in the province. • In section 92 the province received classes of subjects that were not considered important at the time.
Section 92: what the provinces got • control of public lands • property and civil rights • municipal institutions • health and welfare
What is a supremacy clause? • Because the constitution delineates both the separation of powers as well as what powers the two governments share, the constitution also establishes which side has more power in cases of disagreement. • The supremacy clause gives residual power to the federal government (POGG clause).
More ways the federal government can control the provinces • disallowance: the federal government rules a provincial law null and void within one year of its passage (this has been used 110 times, the last in 1943). • reservation: the bill has passed the provincial legislature but is not passed by the lieutenant governor.
Ways to settle disputes • Because Canada is based on a parliamentary democracy there were few ways to settle disputes: the federal government usually took control. • The judiciary was used in limited cases and in the early days these went to the Judicial Committee of the British Privy Council (JCPC).
How can the Canadian constitution be amended? • With great difficulty. • The 1982 Constitution Act set up the formula for future amendments • Need resolutions in the HoC and Senate as well as the 2/3 of legislative assemblies with 50% of population.
Constitutional Change • Initial change was the territorial borders of the provinces and the territories. • Second was achieving autonomy from Britain, and the abolition of court of appeals for the Judicial Committee of the Privy Council. • Third was achieving a formula by which Canada could patriate the constitution. • Fourth was integrating civil liberties into constitutional protection.
Failed Constitutional Change post 1982 • Meech Lake accord • Main theme was distinct society • Enlarged group rights • Left out a number of groups, women, natives. • Called the Quebec round of constitutional talks • Charlottetown Accord • Canada Clause • Triple- E senate • Aboriginal Self-government • Division of Powers
Why do we have a bill of rights? • The British do not have a bill of rights. • One reason is the nature of how a parliament in constructed. • Parliament is supreme • The Americans rejected parliamentary sovereignty and all it entailed. • “We the people” acknowledges that the people give the power to the government
A bill of rights embedded in the constitution doesn’t make sense in a parliamentary system. • It’s counterintuitive to have parliament supremacy and the notion of rights. • To have the courts adjudicate disputes between citizens and governments takes power away from parliament. • The notwithstanding clause, section 33 gives all parliaments in Canada the right to veto a court decision.
So why do we have a bill of rights? • Because it is part of a global rights movement. • Trudeau envisioned a “just society” and the bill of rights would make Canada part of the global movement.
What exactly does the Charter do? • It protects the citizens from government. • Constitutions in effect limit the power of government in the traditional sense. • These rights are known as negative rights. • They are the right to be free from government. • Canada has both positive and negative rights
What a charter does not do • It does not deal with private matters. • The constitution protects us from government, but is not intended to protect us from each other. • This does not mean that people do not try to use the constitution to that end.
How the British have a “Constitution” similar to Canada • The British do have some constitutional documents in the sense that the have documents that “constitute” the regime. • The Magna Carta, Petition of Rights, Parliament Acts, etc all act to “constitute” the regime. • These are not combined as Canada did into one constitutional document.
How the British Constitution differs • The British do not have the separation of power documents such as secs. 91 and 92 of the BNA Act • Why? • Because they are a unitary state and do not need to divide the powers between levels of government. • Over time, they have devolved power to subordinate units of government. • But these are not constitutional and therefore can easily be rescinded by acts of parliament.
The British do not have a constitutionally entrenched Bill of Rights • Do people in Britain lack basic rights? • No, they have rights established through both the legislature and common law experience. • The rule of law provided the British people with the protection of rights varying from private property to freedom of speech. • Not having a constitution has benefits as well.
The American Constitution • Based on a revolutionary tradition • Power is derived from the governed. • Government must be limited If angels were to govern men, neither external nor internal controls on government would be necessary. Fourth President1809-1817
How the Americans limited government • separation of powers • checks and balances • federalism • bill of rights