History of Constitutional Law in Canada

Development of Canadian Constitution Constitution Act 1982 Canada given an amending formula – ability to change our own constitution = complete independence from Britain Canadian Charter of Rights and Freedoms Our road to independence Supreme Court of Canada – 1949 Established and becomes Canada’s highest court Statute of Westminster – 1931 British Statute – Giving Canada control over its foreign affairs BNA Act - 1867 (British North American Act) – British Statute Dominion of Canada formed British Privy Council – Canada’s highest court Little control of our affairs (foreign) Defined areas of federal and provincial jurisdiction (federal more powerful) – only 2

BNA Act - 1867 British North American Act – 1867 Outlined the powers of the Canadian government to make laws and establish the levels of government for making law (federal / provincial)

British North America Act Each level (federal and provincial) has exclusive control over their responsibilities, but the federal government could overrule a provincial law if in best interests of all Canadians Also, residual power goes to federal government Included: UK parliament Monarch (Queen/King of Britain) of head of state Principle of Rule of Law

Patriating the Constitution Statute of Westminster (1931) – legislation passed in UK amending (changing) BNA Act that extended Canada’s law making powers so that they could make laws independently, even if they contradicted UK law & allowed Canada to make agreements with other countries Problem – as long as BNA Act in UK, Canada had to ask UK to add laws to constitution Another problem – confusion with division of powers & resulting disputes

Bringing Home the Constitution - 1982 Canada could not change the BNA Act, 1867 since it lacked an amending formula – (being a British Statute) The Constitution Act – In addition to the amending formula, the Canadian Charter of Rights and Freedoms makes up the Constitution Act, 1982. Pierre Trudeau re-patriated (brought home) the Constitution without support of all provinces all except Quebec agreed in 1982 http://www.cbc.ca/archives/categories/politics/prime-ministers/pierre-elliott-trudeau-philosopher-and-prime-minister/bringing-home-the-constitution.html

The Constitution A written document that sets down all the important rules for how a country operates

The Canadian Charter of Rights and Freedoms Guarantees rights to all Canadians (since 1982) Citizens can make a case that their rights are being denied Rights vs. privileges Driving is a privilege, earned, and can be revoked

Amending Formula Today Amendment Who must agree Changing the roles of the Queen, GG, L-G Changing the use of English or French nationally Changing the Supreme Court Changing the amending formula The federal government and all ten provinces Changing the borders between provinces Changing the use, provincially, of English or French The federal government and the affected provinces Changing the Senate or the H of C The federal government All other changes The federal government and seven of the ten provinces representing at least 50% of the population

Federal Powers Constitution Act – 1867 (Section 91) POGG Gave federal government power to enact laws that were needed to maintain POGG 2 main powers: any genuinely new power not set out in the BNA act veto provincial powers in national emergency Criminal Law Unemployment insurance Banking, currency, and coinage Federal penitentiaries Marriage and divorce Postal services Aboriginal peoples and their land

Provincial Powers (Section 92) – Constitution Act - 1867 Property and civil rights Marriage ceremonies Police forces and provincial courts Highways and roads Provincial jails hospitals

Municipalities Not outlined in the Constitution Act, 1982 Creations of the province – subject to provincial law/rule Sewage and garbage disposal Roads, sidewalks, snow removal Street lighting, parks Libraries, public transportation, pools and arenas Local police and firefighting

Government Bills / Statutes – Federal The process through which an idea becomes a law First Reading Second Reading Committee Report Stage Third Reading More discussion and debate in the House of commons Bill is read To the House Of Commons No discussion No debate No Vote MPs may question and debate new bill Vote An Idea Awareness that something needs to change May begin with Any MP Draft up a new Policy which is Checked by Lawyers This is a bill Studied clause by clause by a standing committee of MPs from all parties Public and expert input Vote and make changes VOTE In H of C Senate Federal level only Follows same process (3 readings) - vote Any changes – sent back to the H of C Royal Assent Signed by the GG or Queen – turns bill into an ‘act’ which turns it into law

Government Bills - Provincial Similar process to federal process Occurs in the Provincial Legislative Assembly (Ontario – Queen’s Park) Involves MPPs (3 readings) Does not involve the Senate (0 readings) Must be signed by the Crown (Lieutenant-governor)

Government Bills / Bylaws - Municipal Similar process to that of a federal bill Occurs at a City Hall City councilors (Elected City Council) Signed by the mayor

Recap How did the British North American Act lay down the structure for the Canadian Constitution? Discuss the importance of the Statute of Westminster. Why did it take so long for Canada to get control of its own constitution? Distinguish between the Constitution Act, ,1867, and the Constitution Act, 1982. Distinguish between sections 91 and 92 of the Constitution Act, 1867 by discussing the constitutional division of power What is the third level of government in Canada? What types of laws does it pass? Why is the House of Commons the most powerful part of Parliament? What are the responsibilities of Cabinet ministers? Compare the passage of federal legislation with that of provincial legislation. How are they similar? How are they different? Think of a change you would like to see in the law. Describe the process by which this idea could become a reality. Clearly identify the steps needed to pass a bill into a law.