Patriating The Constitution

Statute of Westminster By 1931 Canada had become less reliant on Great Britain for help and wanted more independence. To make this independence more official, the Statute of Westminster was passed. It allowed Canada to makes its own laws without having to get British permission. It could make international trade agreements etc, BUT still needed permission from Britain to change the constitution. Statute of Westminster: legislation passed in Britain that extended Canada’s law-making powers.

Problems with the BNA Act Britain was willing to give Canada permission to change its own constitution as other former British colonies had established over the years (Australia, New Zealand, etc.) but the federal and provincial governments couldn’t agree upon the process. Example: Federal gov’t had responsibility for the fishing industry. Provinces had responsibility for timber and wood BUT Who had responsibility for other natural resources, such as gas, oil, water, etc? Provinces wanted the power and so did the federal gov’t. Arguing over these items meant they weren’t willing to change the constitution yet. Rather than going to Britain every time, often they would agree to “Shared Cost agreements.” rather than change the constitution. For example: Health care money would often be given to provinces if they agreed to certain federal standards. This would cause tension and many citizens were concerned with the lack of civil liberties clearly outlined in the constitution.   Civil liberties: Basic individual rights protected by law, such as freedom of speech.

Constitution Act 1982 Until these concerns were addressed, Britain still had constitutional control over Canada. Many Canadians demanded to have the “Constitution brought back home.”  Pierre Elliott Trudeau promised he would try to do this. He would “patriate” the constitution. Provinces were unwilling to give up any powers so Trudeau warned that he would do it alone, and Supreme Court of Canada gave him permission (but with warnings that this could cause more trouble).  Patriate: to bring legislative power under the authority of the country to which it applies.

1981: Provinces meet with federal gov’t 1981: Provinces meet with federal gov’t. Arguing continues, but most agree with compromises except Quebec, who wanted more economic and cultural powers. Eventually one night, all provinces agree while Quebec premier is asleep. He’s furious next morning and only province that doesn’t sign the agreement. Regardless, Canada patriates the constitution with very little changes except for the following four items:  

1) Principle of Equalization This concept allowed for equalization of essential services throughout all areas of Canada. If a “poorer” province cannot afford basic health care costs, then the federal gov’t, through taxation of all provinces, would redistribute the money to allow for all Canadians to have these essential services.

2) Natural Resources Provinces given control over these BUT must be willing to sell fairly to other provinces, etc. (Example: Albert a can’t say “No gas for Saskatchewan, but lots of gas for B.C.”

3) Amending Formula How can further constitutional changes be made? Approval of federal parliament (MP’s) plus 2/3 of the provinces representing 50% of the population. Warning: This gives a lot of power to…?

4) Charter of Rights & Freedoms This became part of the constitution, which meant it was part of the highest law of the country. Very important! (Reason why discrimination is illegal, etc.) **Quebec still has not signed this constitutional act, and despite attempts in 1987 and 1992, still hasn’t. According to the Supreme Court of Canada however, Quebec still must abide by the constitution.

Often when there is dissension between provinces and the federal government concerning a certain item that isn’t clearly defined in the Constitution the federal government will usually win. This is due to section 91 of the constitution:   91. It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons to make laws for the Peace, Order, and Good Government of Canada. The federal government will often use this clause, stating that despite what the province believes, the federal government has power over the issue because it has direct importance concerning the “Peace, Order and Good Government of Canada”