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Government and Statute Law

Government and Statute Law. Chapter 3. Canada’s Constitution. 1763 – by Royal Proclamation Canada became subject to English Law and governed by Great Britain and the interests of GB 1860’s – meeting in Charlottetown in 1864 to discuss unification. British North America Act, 1867.

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Government and Statute Law

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  1. Government and Statute Law Chapter 3

  2. Canada’s Constitution • 1763 – by Royal Proclamation Canada became subject to English Law and governed by Great Britain and the interests of GB • 1860’s – meeting in Charlottetown in 1864 to discuss unification

  3. British North America Act, 1867 • Constitution of a colony • Laws often could not be entered into unilaterally – required the approval of GB • Could not enter into international trade agreements without approval • Recognition of Canada as a separate political entity within the British Empire

  4. Federal System • Compromise between the US and British systems of government of the time • Bill of Rights/Constitution • Unitary system – centralized in one parliament led by a Prime Minister • Federal system • Responsibilities divided between central and provincial governments • Exclusive control over their own jurisdictions • Central rule in areas that were of national interest

  5. Divisions of Power • BNA act outlined the responsibilities of each level of government • s. 91 – federal powers would be uniformly applied in every province (ie postal service) • s. 92 – provincial responsibilities • s. 93 – educational resp. given to provinces in recognition of special language and religious rights that differed from region to region

  6. Divisions of Powers • BNA Act only provides for two levels of government • Federal and provincial • Provinces delegated some of their responsibilities to municipalities • Aboriginal self-government is another area of delegated responsibility/power

  7. Federal/Provincial Responsibilities

  8. Conflict of Power • Residual Powers • Federal government has law-making powers in legislative areas that were not specifically assigned to either jurisdiction • Airports • Telecommunications • s. 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

  9. Conflict of Powers • s. 91 has allowed the federal government to create laws that otherwise would be the responsibility of the provinces • Need for emergency powers • Others???

  10. Doctrine of Ultra Vires • Governments may only create laws within their jurisdiction – intra vires = “within the power” • If a law is created beyond the jurisdiction of a government, it may be declared ultra vires = “beyond the powers” • See “The Attorney General for Alberta v. The Attorney General of Canada, [2001] 1 S.C.R. 783 – pg 56

  11. Patriating the Constitution • Statute of Westminster • 1931 – Statute passed extending the law making powers of Canada and no longer requiring the approval of GB • GB could no longer overrule Canadian laws • Canada could legally enter into international agreements without the approval of GB • The Constitution still required GB approval for amendment

  12. Problems with the BNA Act • Changes to the Canadian Constitution required British approval • Responsibility for Natural resources was confusing • Fisheries = federal • Timber = provincial • Others? • New issues that arose after 1867 – who would be responsible (even in light of s. 91)? • Sometimes led to shared cost agreements to avoid having to ask Britain to intervene/decide • Health care agreement • No guarantee of Civil Liberties

  13. Constitution Act, 1982 • Previous attempts to repatriate the constitution b/c agreement could not be reached as neither level of gov’t would cede powers provided in BNA Act • Repatriating the constitution w/out provincial approval would be constitutional, but unwise and contrary to the principles of the BNA Act

  14. Constitution Act, 1982 • 1981 - First ministers meeting in Saskatchewan • Agreement reached with all provincial premiers except Quebec • Constitution Act, 1982 (which included the BNA Act, 1867) became law on April 17, 1982 • By including the BNA act, 1867, in the Constitution Act, 1982, the division of powers remained unchanged as does s. 91

  15. Constitution Act, 1982 • 4 key elements of the Constitution Act of 1982 • Principle regarding the equalizing of services across Canada • Clearer interpretation of responsibilities, control and management over natural resources • Formula providing the terms for future constitutional amendments • Canadian Charter of Rights and Freedoms

  16. Principle of Equalization • s. 36 of the Constitution Act (p.59) • Essential services equally available to all Canadians in all parts of Canada • Education • Health care • Access to social services

  17. Natural Resources • Provincial powers granted over such things as: • Natural gas – Alberta • Oil – Newfoundland and Labrador • Provinces cannot charge higher prices or limit the supply when exporting non-renewable natural resources to another part of Canada

  18. Amending Formula • To amend the Constitution requires: • Approval of Parliament • Approval of 2/3 of the provinces representing at least 50% of the population • However, amendments affecting only one province requires only the approval of Parliament and that provincial government

  19. Charter of Rights and Freedoms • Entrenching the Charter in the Constitution gives the Charter constitutional status, meaning other laws/statutes can no longer override it

  20. Constitutional Conflict • Meech Lake Accord (1987-1990) • Recognition of Quebec as a “distinct society” • Defeated as it did not address Aboriginal issues and other provinces opposed the special status for Quebec (or any province)

  21. Constitutional Conflict • Charlottetown Accord (1992) • Defeated in a national referendum (54% voted no) • Included provisions for Aboriginal self-government • Included recognition for Quebec

  22. Constitutional Conflict • What about Quebec? • Even though Quebec has not yet ratified (signed and approved) the Constitution Act, the Supreme Court has ruled that the province is still subject to its laws and protected by the Charter • The Canadian Flag does not fly outside the Legislative Assembly in Quebec City. • Does fly inside though.

  23. Government and Law making • Federal and Provincial governments are comprised of 3 levels/branches • Executive • Legislative • Judiciary

  24. Government and Law making • Executive Branch • Responsible for proposing new laws and ensuring existing laws are enforced • Provincial • Premier and Cabinet • Federal • Prime Minister and Cabinet

  25. Government and Law making • Legislative Branch • Creates/revises statutes and laws • Federal • Parliament • House of Commons • MPs • Senate • Senators • Provincial • Legislative Assembly/Legislature • MLA/MPP/MNA

  26. Judiciary • Independent • Adjudicate disputes • Interpret the law • Decide punishments • apolitical • Composed of Justices, Judges • Decide whether laws are constitutional/comply with the Charter • http://www.justice.gc.ca/en/dept/pub/trib/

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