Canadian Constitution: From Unwritten to Patriated

1. Constitutional Law:An Overview(Page 135-142)

2. What is a Constitution? • A legal framework that establishes how power & authority within a country is exercised. • The supreme and central law of the land. • Assigns the limits to the power of the state. • In democracies, they reflect the Social/Economic/Political values of society • Canadian constitution is a combination of many unwritten rules and written documents added over time.

3. Written Constitutions • Nations are held to account by a constitution (written) • Some countries: BRITAIN and ISRAEL do not have written constitutions but they have (traditions/customs)

4. Canada’s Written and Unwritten Constitution Canada’s federation is documented within: • Constitutional documents- outline the structure of government, division of powers, and rights of individuals • Conventions (unwritten rules) - followed primarily for reason of tradition rather than law. • Common law- addresses the constitutional disputes and establishes precedents upheld by our legal system.

5. Canada’s Original Constitution:The BNA Act, 1867 • Prior to 1867, Canada was a British colony with no governing legal document. • The BNA Act was passed by the British parliament in 1867; Canada (the colony) officially created with the unification of Ontario, Quebec, NB and NS The BNA Act outlined: • Structure/Organization of Canada – division of powers between the federal/provincial governments • Rules for Canada’s government • GG signature was required on all bills or treaties

6. Written Versus Unwritten Constitution • Prior to 1982, Canada’s Constitution was considered unwritten because it was just a collection of documents used to govern the nation. Documents Used Included: • Royal Proclamation 1763: made British law applicable to all her colonies • Quebec Act 1774: allowed Quebec to continue to use French Civil law rather than British Common Law. • Act of Union 1840: united the provinces of Upper and Lower Canada and established responsible government. • The BNA Act 1867: united the four founding provinces into one country Canada but did not patriate it because the provinces could not agree on an amending formula. • Statute of Westminster 1931: ended Canada’s status as a colony and no longer required to follow/apply laws passed by the British Parliament

9. Problems with the BNA Act: • Canada did not have authority to pass its own laws • Unable to amend constitution without approval of British parliament. • Lack of clarity in division of powers between level of gov’ts. • Civil liberties of Canadians not protected!

10. PM Pierre Elliot Trudeau made it his mission to right a new constitution for Canada. • He wanted to ‘Patriate’ Canada’s Constitution (bring legislative power home) • He received a lot of opposition from the Provinces (esp Quebec).

11. Why change? • Canada wanted to create an amending formula so they would no longer need Britain’s involvement to change its constitution • Concerns over Quebec nationalism and their desire to separate • Even more urgent in 1976 Quebec elected 1st separatist party leader • Commitment to human rights by PM

12. The Road to Patriation in 1981….

13. The Constitution Act (1982), was finally patriated on April 17th, 1982.

14. Patriated Constitution included the core elements of the BNA Act, as well as, 4 new principles: • Principle of Equalization 2. Principle of National Resources 3. Amending Formula Principle 4. The Charter of Rights & Freedoms

15. 1. Principle of Equalization Section 36 (1) of the new charter guarantees that tax monies will be distributed so that all Cnd’s will enjoy the same level of success. I.E. Just b/c Ont is richer it doesn’t mean its inhabitants are entitled to better hospitals. #2. Principle of National Resources Provinces can have control of their own natural resources, under the condition that they cannot impose tariffs on the sale of the resource w/in Canada.

16. #3: Amending Formula Principle • The constitution can be amended as long as 2/3 of the provinces, representing at least 50% of the population, approve of the amendment. House of Commons + Senate have to agree. • If a change to the constitution involves the activity in only 1 province, then only the Fed + specific Prov gov'ts would have to agree.

17. Principle #4: The Charter of Rights & Freedoms • Most significant part of the new constitution. • A document that guarantees certain Rights and Freedoms to Canadians • Why Entrench? Bill of Rights (the predecessor) was limited b/c it was only a law. • Charter laws have constitutional status; any law that violates them will be struck down.

19. Evolution of Rights and Freedoms in Canada(page 171-176)

20. What is the difference between a right and a privilege?

21. Rights Vs. Freedoms….. What is a right? • A legal, moral or social claim that citizens can expect mainly from their government. What is a freedom? • The right to conduct one’s affairs without government interference.

22. Canadian Bill of Rights (1960) • Issue of Human Rights + Freedoms became a global focus post WWII (holocaust & UN Declaration of Human Rights 1948) • As a signature of the UN, Canada embraced the importance of establishing laws protecting human rights. • First attempt to codify the rights & freedoms across Canada was in 1960: - PM John Diefenbaker enacted a statute by parliament called the Canadian Bill of Rights

23. The Bill of Rights Recognized: • The rights of individuals to life, liberty, personal security and enjoyment of property. • Freedom of religion, speech, assembly and association. • Freedom of the press • The right to counsel and the right to a fair hearing

24. Evolution of Rights in Canada Since 1867

25. Limitations of the Bill of Rights: • As a federal statute, it only applied to matters under federal jurisdiction. - Failed to meet Diefenbaker’s intention of making Bill applicable to provincial jurisdictional matters. - provinces could legislate as they wished. • As a statute, it had same status as other statutes. -Didn’t take precedence over any other statute; judge had to decide which law to enforce in bill of rights violations. • As a statute, it could be amended by a majority vote in the H of C - Thus protections offered in bill could be changed or eliminated at any time.

26. HR Laws in Canada... • Charter applies to governments and their agencies • Human rights legislation applies to violations caused by individuals. • Fed Gov’t has enacted the Canadian Human Rights Act; provides protection against discrimination for those areas falling within the scope of federal authority. • Provinces have enacted their own laws (i.e. Ontario Human Rights Code)

27. Homework to do: • Read and take notes on page 176-178 and answer questions 1, 3, 4 (178) • Read British Columbia v. BCGSEU case on page 181-182

29. Natural vs. Positive Rights Naturalists views rights as enduring + universal. Minimal or no limitation. “Non-Restrictable rights”. Human rights are superior to human laws. Violation of human rights can justify civil disobedience. Positivists recognize that rights are shaped by a political authority. Rights subject to s/e/p changes in a society. Rights tied to the collective well-being of community. “Restrictable Rights”