Constitutional Government

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Constitutional Government

• Chapter 5

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What does a constitution do?

1. Constitutes a regime
2. Limits the powers of government
3. 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
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What makes up a constitution?

1. preamble
2. organizational chart
3. amending clause
4. 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
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What makes up the Canadian Constitution?

1. The Canadian Constitution is not a single
   document, but a series of documents.
2. The first document is the BNA Act.
3. 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.

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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

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How was Canada constituted?

1. As a parliamentary democracy
2. As a federal government, where the federal
   government was highly centralized

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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

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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.

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Section 92 what the provinces got

1. control of public lands
2. property and civil rights
3. municipal institutions
4. health and welfare

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What is a supremacy clause?

1. 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.
2. The supremacy clause gives residual power to the
   federal government (POGG clause).

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More ways the federal government can control the
provinces

1. 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).
2. reservation the bill has passed the provincial
   legislature but is not passed by the lieutenant
   governor.

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Ways to settle disputes

1. Because Canada is based on a parliamentary
   democracy there were few ways to settle disputes
   the federal government usually took control.
2. The judiciary was used in limited cases and in
   the early days these went to the Judicial
   Committee of the British Privy Council (JCPC).

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How can the Canadian constitution be amended?

1. With great difficulty.
2. The 1982 Constitution Act set up the formula for
   future amendments
3. Need resolutions in the HoC and Senate as well as
   the 2/3 of legislative assemblies with 50 of
   population.

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Constitutional Change

1. Initial change was the territorial borders of the
   provinces and the territories.
2. Second was achieving autonomy from Britain, and
   the abolition of court of appeals for the
   Judicial Committee of the Privy Council.
3. Third was achieving a formula by which Canada
   could patriate the constitution.
4. Fourth was integrating civil liberties into
   constitutional protection.

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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

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Why do we have a bill of rights?

1. The British do not have a bill of rights.
2. One reason is the nature of how a parliament in
   constructed.
3. Parliament is supreme
4. The Americans rejected parliamentary sovereignty
   and all it entailed.
5. We the people acknowledges that the people give
   the power to the government

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A bill of rights embedded in the constitution
doesnt make sense in a parliamentary system.

1. Its counterintuitive to have parliament
   supremacy and the notion of rights.
2. To have the courts adjudicate disputes between
   citizens and governments takes power away from
   parliament.
3. The notwithstanding clause, section 33 gives all
   parliaments in Canada the right to veto a court
   decision.

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So why do we have a bill of rights?

1. Because it is part of a global rights movement.
2. Trudeau envisioned a just society and the bill
   of rights would make Canada part of the global
   movement.

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What exactly does the Charter do?

1. It protects the citizens from government.
2. Constitutions in effect limit the power of
   government in the traditional sense.
3. These rights are known as negative rights.
4. They are the right to be free from government.
5. Canada has both positive and negative rights

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What a charter does not do

1. It does not deal with private matters.
2. The constitution protects us from government, but
   is not intended to protect us from each other.
3. This does not mean that people do not try to use
   the constitution to that end.

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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.

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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.

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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.

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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
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How the Americans limited government

1. separation of powers
2. checks and balances
3. federalism
4. bill of rights