Government and Statute Law Chapter 3

Laws have to………. Meet legal challenges and approval of citizens. They must be enforceable. Should present a balance between competing interests. Must be constitutional! Should do what they are intended to do. Be within the jurisdiction of the authority making the law.

Canada’s Constitution The British North America Act was passed by the British parliament in 1867 and was proclaimed into law on July 1st, Canada’s birthday! It established Canada as a country with John A. Macdonald as its first Prime Minister. While the BNA act recognized Canada as a separate political entity, it still couldn’t make changes without Britain’s approval.

Federal System While deciding what system to use in Canada, the Federal system seemed the best choice. Under a Federal System, the responsibilities for governing were divided between two levels of government, the central government and the provincial government. Each government had their own jurisdictions but the Federal government could override a provincial law if it was seen as not in the best interest of all Canadians. Because it came from the BNA act, it includes the monarch as the head of state and the principle of the rule of law.

Section 91 of the BNA act outlined the federal government’s powers, usually matters that applied to everyone, such as postal service or currency. Section 92 outlined the provincial governments powers, such as education. Provinces delegated their responsibilities to municipal governments for local matters.

Federal and Provincial Banking Foreign affairs Criminal Law Public debt Defence Trade and commerce Postal service Penitentiaries Education Health care Labor and Trade unions Property and civil rights Compensation to injured workers Marriage

Doctrine of Ultra Vires Government may make laws only in its own jurisdiction. Called Intra Vires, within the power of government to pass laws. If a government attempts to pass laws out of its jurisdiction it would be said to be Ultra Vires, beyond the power of government to pass laws.

Patriating the Constitution As you know, the BNA act was Canada’s constitution, but it had problems, the biggest of which was Canada’s independence from Britain. In 1931, the Statute of Westminster was passed, greatly extending Canada’s law-making power. Now Canada could make its own laws and they could not be overruled by Britain. The BNA act limited Canada’s independence, did not make mention of a Prime Minister’s office, was unclear regarding jurisdiction over resources and did not allow for responsibilities that did not exist in 1867. The federal and provincial governments agreed to share the cost of areas not identified in the act. For all these reasons, and the fact that the act did not protect civil liberties, the constitution had to be brought home!

Prime Minister Pierre Elliot Trudeau wanted to Patriate or bring home the constitution. After several attempts to get the provinces to agree, finally, without the approval of Quebec, the Constitutional Act of 1982 was born. It included the BNA act but had four new key elements….. 1. A principle regarding the equalizing of services across Canada. 2. A clearer interpretation of who was responsible for control and management of natural resources. 3. A formula indicating what terms would be necessary to make future amendments to the constitution. 4. Canadian charter of rights and freedoms was included, guaranteeing individual rights and freedoms. It also made provisions for the Principle of Equalization, which provides for equal access to essential services for all Canadians. Finally, an amending formula was agreed upon which required the approval of Parliament plus two-thirds of the provinces representing 50% of the population.

Government and Lawmaking The executive branch of government is responsible for carrying out the government’s plans and policies. It consists of the prime Minister, the Cabinet and the public or civil service. Members of cabinet are elected representatives appointed by the Prime Minister to positions of responsibility. The executive branch at the provincial level works much the same way.

The Legislative Branch Refers to the branch of government that has the power to make, change and repeal laws. Federally, this is the House of Commons and the Senate. Provincially, it the Legislative assembly. The Governor General, David Lloyd Johnston and the Lieutenant Governor, David C. Onley, are appointed to represent the Queen.

The Judiciary The branch of government responsible for presiding over Canada’s court system. It is independent of the other two branches. Made up of judges who adjudicate disputes, interpret the law and decide on punishments. Apolitical and independent! Highest court is the Supreme Court of Canada.

From A Bill To A Statute Only the government can pass laws! The laws must be constitutional and should reflect public concerns and government policies. A proposed piece of legislation is called a Bill. Royal commissions, advisory boards, interest groups and Ministers’ initiatives all can have an influence on proposed legislation. Here are the steps involved in passing a Bill into law……..

A bill introduced by a Cabinet Minister is called a government or public bill. A bill may also be introduced by an elected representative who does not hold a Cabinet post. Then it’s called a Private Members Bill. Government bills almost always pass if the government has a majority in the house. It’s much more difficult for a private members’ bill because it may not have government support. Here are the steps involved……… 1. Draft legislation is put together by the government department involved. 2. First reading in the house, where the bill is introduced and its purpose is discussed. The bill is printed and distributed.

3. Second reading, where the principle of the bill is debated, each member has a chance to comment and then the bill may be referred to committee for revision and further examination. 4. Third reading, debate is restricted to the contents of the bill. 5. The bill goes to the Senate where the same steps take place. The Senate also checks that the bill does what is intended, is not redundant and is constitutional. 6. Bill is returned to the house for a vote. 7. If the bill passes it goes to the governor general for Royal assent and proclamation. 8. The bill is now a statute or act of parliament, and of course, a law! 9. Provincial laws follow the same process, but with no Senate, once its passed it goes directly to the Lieutenant Governor.

Lobby Groups Lobby groups, people who try to influence legislators in favor of their cause, can be very influential in getting laws changed or new laws passed. MADD, and The Coalition for Gun Control, are two good examples of groups who have influenced government to change laws. Sometimes specific national problems may require a government investigation. Often this involves a Royal Commission, which is appointed by the federal Cabinet to conduct impartial investigations. An example would be the Royal Commission on Canada’s blood supply. A report from a royal commission is referred to as a white paper.

Cases to complete Read the case and answer the question that follow Cases to complete Read the case and answer the question that follow. Have ready to submit for Tuesday. US v Burns (49) Roncarelli v. Duplessis (15) McKay v. Air Canada (60) R v. Creekside Hideaway (89) Canada v. Khadr (88) Key v. Canada (61) Canadian Wireless Telecommunications Association v. SOCAN (60)