The Road to Independence. British North America Act The first thing that we need to briefly review is the British North America Act, passed in 1867. WHAT DO WE KNOW ABOUT THIS ACT?
The first thing that we need to briefly review is the British North America Act, passed in 1867.
WHAT DO WE KNOW ABOUT THIS ACT?
This act established the creation of the Dominion of Canada, which was the first act in the creation of Canadian independence. Canada now had a Prime Minister with a cabinet, as well as our own House of Commons and a Senate which passed legislation and created our laws. We also had a Governor General, who was the Crown’s representative in Canada. The Crown was the head of government in Canada, and without its consent we could not pass our own laws. Canada may be independent, but Britain still had considerable ties and control.
With the end of World War I, the victorious nations gathered in Versailles, France to discuss the terms of the peace treaty. When the Treaty of Versailles was finally completed and ready to be presented to Germany, Canada was allowed to sign the document as a participatory nation. Canada was able to sign independently of Great Britain, which was another step in the movement towards complete sovereignty.
The Statue of Westminster was passed through the British House of Commons and House of Lords (their Parliament) in 1931 and effectively made the British Empire into the British Commonwealth. With the Statute, all Commonwealth nations, including Canada, New Zealand and Australia, were now given control over their own foreign policy. Prior to 1931, all countries in the British Empire had to conduct all of their foreign relations throughout Great Britain.
For instance, if Canada was having a trade dispute with the United States, Canada would not send a group of people down to Washington to discuss the matter; instead, Britain would select people and order them to go visit the President in hopes of settling the dispute. After 1931, Canada was able to make their own decisions regarding foreign policy, and could interact with other nations when they saw fit.
What are examples of Canada using its powers under the Statute of Westminster?
The BNA Act also stated that Canada’s Supreme Courts were not the Court of last appeal – nor was any supreme court in any of the Empire (or Commonwealth) countries. While each country had its own court system, the Judicial Committee of the Privy Council in London, England, was still the final court where litigants could appeal their case. This meant that if you did not like the ruling by the Supreme Court of Canada, you could still appeal that ruling all the way to the JCPC in London. This was another form of control that the British government had over Canada.
This all would change in 1949. With the development of greater Canadian nationalism, especially after the Canadian contribution to World War II, there were increased calls amongst the population to allow Canada’s Supreme Court to be the court of last appeal. It was also thought that having a case heard in London – which still took at least a day or two to reach, depending on the mode of transportation – created an unnecessary time delay.
On the British side, some saw this as being too stressful and time consuming for the British courts. In response to all of these concerns, the British Parliament passed a law in 1949 that stated that Canada, and all other Commonwealth countries, could have their Supreme Court be the last court of appeal. The JCPC would no longer hear appeals from Canada, and now Canada had complete judicial independence.
Prior to 1965, Canada’s flag was very different from the one we have today. It looked much closer to the British flag, and many people were in favour of keeping our roots and contact with the Commonwealth. Starting in the early 1960s, and really coming to the national spotlight in 1964, there was a debate about whether or not Canada should adopt a new flag that was better representative of its national identity. The discussion eventually made its way to Parliament.
After 33 days of debate, the Maple Leaf flag was adopted, and it was officially proclaimed Canada’s flag on February 15, 1965. The Pearson government also recommended that “O Canada” be the national anthem, in place of “God Save the Queen.” This move did not become official until 1980. The word “Royal” was removed from a number of Canadian institutions. For example, The Royal Mail became Canada Post.
When the BNA Act was passed in 1867, there was no amending formula outlined in the document. An AMENDMENT FORMULA is the way in which the Constitution could be changed, altered, or added to. The only way that the Constitution could be changed was by the British Parliament – and this was the case through until 1982. There were several additions to the Canadian Constitution and the British North America Act between 1867 and 1982, but these were all done by the British Parliament. In fact, the Statute of Westminster and the act that allowed Canada’s Supreme Court to be the final court of arbitration were acts by the British Parliament that amended the BNA Act.
Changes were extremely difficult to bring about, and trying to find an acceptable way in which to get all of the provinces to agree to a change was even harder. As long as the amendment formula was not completed and agreed upon by all of the provinces, it meant that Canada would always be dependent on Great Britain. Canadian Prime Minister Pierre Elliot Trudeau held a series of conferences where the provinces gathered to try and create an amending formula, but all of his attempts were in vain. Tired of all of the fighting, in September 1980 Trudeau said that he would simply patriate the Constitution without the consent of the provinces. To patriate the Constitution meant that Canada would be able to amend its Constitution without the permission of the British Parliament – this was seen as the last step to total and complete independence and sovereignty.
In response to Trudeau’s announcement, several provinces went to their provincial Supreme Court’s in an effort to block Trudeau’s effort. The Supreme Court of Canada wrote that there was nothing that stopped the federal government from acting on its own. However, the Court also said that there should be a substantial number of provinces agreeing with the federal government before a constitutional change was made. Both the provinces and the federal government claimed that the Supreme Court decision was a victory for their side. With this in mind, Trudeau decided that he would go ahead with his desires, but also announced that he would hold one more conference to try and get a majority of provinces to agree with him.
At the First Minister’s Meeting in late 1981, Trudeau faced much opposition and it looked like an agreement would never be reached. While the premiers were arguing, Justice Minister Jean Chretien and the attorney generals for Saskatchewan and Ontario retreated to a kitchen to draft a compromise bill. They sent it on to the hotel room of the Saskatchewan premier where most of the premiers who were against Trudeau were meeting. At 1:30am this group send the deal to the hotel room of the Ontario premier, Bill Davis.
At 2:00am an agreement had been made without the support of Quebec. When Quebec premier Rene Levesque woke up and found out, he was furious. Levesque refused to sign the bill. With nine provinces in support, the House of Commons in December 1981 approved the bill to patriate (bring home) Canada’s Constitution from Britain by 246 votes to just 24. In response, flags on most Quebec government buildings flew at half-mast that day.
On April 17, 1982, in a ceremony on Parliament Hill, Queen Elizabeth II signed the Proclamation of the Canadian Constitution, which is also known as The Constitution Act. For most Canadians, this was a day of immense pride. We now had our own Constitution and were no longer dependent on Britain to change it. The Constitution now had an amending formula (at least two-thirds of provinces with at least fifty percent of the total population) that allowed the nation to change the Constitution, and any province could opt out of any amendment that affects their powers.
It gave all Canadian citizens and those in permanent residence the following rights:
Fundamental freedoms: conscience and religion; thought, belief, opinion and expression; peaceful assembly; and association.
Mobility rights: the right to live and work in any province.
Legal rights: the right to not be detained or imprisoned without good cause; to be informed promptly of the reasons for arrest; to a lawyer without delay; protection against unjust imprisonment; to be presumed innocent until proven guilty; and to not be subjected to cruel and unusual treatment.
Equality right: equal treatment under the law and protection from discrimination based on race, gender, national or ethnic origin, colour, religion, age, sex, or mental or physical disability.
Official languages: Canadians had the right to access the Government of Canada in English or French.
Minority Language Education Rights: the right to education in English or French where there are significant numbers of students.
Aboriginal Rights: the recognition of the existing Aboriginal and treaty rights of the Inuit, Indian, and Metis people.
Rights for Canadian citizens: the right to cast a vote in all elections; the right to be a candidate in an election; the right to leave the country and return.
The Charter did have limitations to it. Canadians did not have absolute rights, but rather, their rights were “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” What this means is that our rights are limited by laws that help to make the entire society more just and democratic. Our rights are limited by the rights of others – we cannot infringe on the rights of others in the execution of ours.
The Charter was designed to protect people from all levels of government and gave much more power to the Judicial branch, which could rule that laws from Parliament were against the Charter, and effectively strike down that law.