1. Constitutional Law Part 2

2. Evolution of Canada’s Constitution
Enacted by the British Parliament (BNA Act 1867)
Any amendments had to be passed by Britain (then how were we a country again?)
Foreign Policy was dominated by Britain- if they go to war so do we (and we did)
Due to our immense influence in WW1, changes were needed

3. The Statute of Westminster
1926 Balfour report declared that Canada, Australia, New Zealand and South Africa should no longer be subservient to Britain
1931 Statute of Westminster- Britain could no longer make laws for Canada
Our laws could in a sense contradict Britain’s
Example- Canada declared war on Germany on September 10, a week after Great Britain

4. Patriation of the Constitution
Oddly enough, our constitution was still in Britain
No agreement could be reached on how to repatriate it
Trudeau (PM) wished very much for a strong federal government
Trudeau did some shady work but was able to include a new constitutional act, the Charter and an amending formula and get the Queen to bring the constitution to Canada
Quebec fought hard against it and in the end didn’t sign it

5. Continued…
The Charter became entrenched in the constitution, which means no laws passed by the government can violate the rights and freedoms set out in it
April BNA Act was renamed- Constitution Act 1867 and Constitution Act 1982 was added:
It included: Amending Formula and the Charter
Canada is now fully independent and is connected to Britain though custom and symbolism

6. WHAT WE INHERITED FROM BRITAIN
BNA ACT
Outlined jurisdictional powers…who does what
LEGISLATIVE SUPREMACY
The legislative branch of government is the highest legal and political body of the land
Why is this important??

7. The Charter- An Aside
The Charter empowered the Courts (namely the Supreme Court of Canada)
Before the Charter, the courts would only rule laws invalid if they were ultra vires that government’s authority
After the Charter, the courts could declare laws invalid and illegal if they infringed the Charter (What’s the formula called?)
Therefore the Charter could in effect overrule the elected body of people which contradicts Legislative Supremacy

8. Amending Formula 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

9. The Meech Lake Accord 1984- PM Brian Mulroney
1st attempt to bring Quebec into the Constitutional fold
“distinct society” proposed and all provinces would get more power
Trudeau saw giving Quebec special recognition would be unnecessary and potentially dangerous
If Quebec has special status so too should Aboriginals (Elijah Harper)
Meech Lake failed

10. Elijah Harper

11. Charlottetown Accord 1992 Mulroney gave it another go
Tried to eliminate “power of disallowance”- federal level could overpower the provincial level
Aboriginal concerns were addressed
Supreme Court’s purpose would become entrenched
Senate would be changed to an elected body
Was defeated in 6 provinces and 1 territory

12. Quebec 1995 Quebec Referendum
Yes or No to separation- the question however was unclear
Vote % for NO- a very narrow victory for Canada

13. How about Guns
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