British North America Act, 1867

British North America Act, 1867 • Ordinary Act of UK Parliament • Defined institutions of government, e.g., Senate, Governor General, House of Commons, Provincial Legislatures • Distribution of powers and establishment of jurisdiction – e.g. provinces & education • No bill of rights • Most constitutional questions re: jurisdiction

Some Charter History • Much opposition to idea of adopting a Charter • Revolutionary idea: Westminster model and parliamentary supremacy replaced with constitutional democracy and judicial review • Constitutional legality of Trudeau govt’s plan to implement Charter challenged in “Patriation Case”

Reference Re Resolution to Amend the Constitution of Canada (1981) Claim: Patriation unconstitutional owing to lack of consent of all parties whose power affected – provincial & federal govt’s

British North America Act, 1867 BNA Act • No amending formula • Ordinary act of UK Parliament • Thus, no means available to Canada to amend/alter except to make request to UK Parliament to make desired changes • Colonial legacy

Questions • (1) Was it unconstitutional for Trudeau government to request the UK parliament to “patriate” the Constitution of Canada without provincial assent? • (2) If provincial assent required, was unanimous assent required?

Answers • Yes, according to constitutional convention, but not constitutional law. • (2) Unanimous assent not required, but “a substantial measure” of provincial assent required

Reasons for Judgment • The Constitution of Canada = Constitutional Law & Constitutional Conventions (Dicey) • Constitutional Law = Statutory & Common Law rules

Constitutional Conventions • unwritten social rules • based on non-judicialcustom and precedent • regulate activities of parts of the state: e.g. executive, legislative and judicial branches • sometimes reduced to written word

Constitutional Conventions, cont’d • not enforceable by Courts • no formal legal sanctions for breach • usually political sanction (e.g. removal of GG from office) • generally circumscribe “wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all.”

Reasons for Judgment, cont’d • Convention existed requiring assent of provincial govt’s on matter affecting provincial powers • Adding Charter significantly affected provincial powers • Therefore “substantial measure” of provincial assent required

Reasons for Judgment, cont’d • SCC did not define “substantial” • Trudeau government assumption: assent of all provinces except one satisfied criterion of substantial assent

Reasons for Judgment, cont’d • Quebec later challenged assumption, but point was moot • Charter already “patriated”

Pre-Enactment Concerns Re: Charter of Rights • Substituting Parliamentary supremacy with entrenched rights against gov’t • Judicial review by unelected judges • Unsettles too much settled law • Compromise: Sec 1 & 33

British North America Act, 1867