Canada's Constitution (Unit 1 Set 5)
Published on Oct 16, 2016
Understanding how our various levels of government were given the mandate to govern.
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PRESENTATION OUTLINE
Canada's Constitution
David Dickinson
These notes will focus on the development of Canada's Constitution and the distribution of its law-making powers.
Photo by Jamie McCaffrey
Untitled Slide
This sign publicizes a law that appears to be quite simple and easily understood.
Most people would agree that spitting is unhealthy and unattractive, but should there be a law against spitting?
What questions might this law face it if was put into force?
What is the penalty if you breach this law?
(fine, prison term, community service)
Does the law apply to all people in all situations?
(at home, on the street, at work)
Would there be any exceptions, what would they be?
(swallow a bug, choking)
How would this law be enforced?
Making laws is no easy task.
Most people would agree that spitting is unhealthy and unattractive, but should there be a law against spitting?
What questions might this law face it if was put into force?
What is the penalty if you breach this law?
(fine, prison term, community service)
Does the law apply to all people in all situations?
(at home, on the street, at work)
Would there be any exceptions, what would they be?
(swallow a bug, choking)
How would this law be enforced?
Making laws is no easy task.
Laws Need To:
- Be able to meet the legal challenges of people.
- Be enforceable.
- Balance competing interests.
- Meet the approval of most citizens.
A law enforcing non-smoking in an apartment complex may be criticized as being discriminatory against smokers.
A zero tolerance policy for violence at school may limit the ability of someone who is being bullied from defending themselves.
A zero tolerance policy for violence at school may limit the ability of someone who is being bullied from defending themselves.
Photo by paul goyette
History of Canada's Constitution
- The Royal proclamation of 1763 meant that British North America was governed by Great Britain.
- The American revolution against Britain occurred between 1765 and 1783
- During the 1860s the USA is in a Civil war.
The Royal Proclamation of 1763:
It established the basis of government administration in the North American territories formally ceded by France to Britain in 1763. It also established the constitutional framework for the negotiation of treaties with the aboriginal inhabitants of large sections of Canada. It is also significantly contributed to the outbreak of the American revolution as it legally defined the North American interior west of the appellation Mountains as a vast aboriginal reserve thus angering inhabitants of the 13 American colonies who desired Western expansion.
In the 1860s the United States was engaged in civil war. Many in Canada feared that once the war was over, The United States would attempt to take over the rest of North America
It established the basis of government administration in the North American territories formally ceded by France to Britain in 1763. It also established the constitutional framework for the negotiation of treaties with the aboriginal inhabitants of large sections of Canada. It is also significantly contributed to the outbreak of the American revolution as it legally defined the North American interior west of the appellation Mountains as a vast aboriginal reserve thus angering inhabitants of the 13 American colonies who desired Western expansion.
In the 1860s the United States was engaged in civil war. Many in Canada feared that once the war was over, The United States would attempt to take over the rest of North America
Photo by Etrusia UK
History of Canada's Constitution (II)
- In 1864 a meeting was held in Prince Edward Island and Québec to discuss unification of the colonies.
- The proposal was taken to Britain.
The Charlottetown Conference was a conference held in Charlottetown, Prince Edward Island for representatives from the colonies of British North America to discuss Canadian Confederation. The conference took place between the 1–7 September 1864.
It was an alcohol infused endeavor.
The conference was originally planned as a meeting between representatives from the Maritime colonies only: Nova Scotia, New Brunswick, and Prince Edward Island.
Britain had actually encouraged a maritime union to provide for greater economic and military power for the region.
The province of Canada (modern Ontario and Quebec) asked if they could be invited and the discussion of a union to include them.
Coincidentally there was a circus in Charlottetown at the same time, which was much more interesting to the majority of the population. There was no one working at the public wharf at the foot of Great George Street when the Canadian delegates arrived on the steamship SS Victoria, so Prince Edward Island representative William Henry Pope had to handle receptions by himself, including rowing out to greet the new arrivals.
It was an alcohol infused endeavor.
The conference was originally planned as a meeting between representatives from the Maritime colonies only: Nova Scotia, New Brunswick, and Prince Edward Island.
Britain had actually encouraged a maritime union to provide for greater economic and military power for the region.
The province of Canada (modern Ontario and Quebec) asked if they could be invited and the discussion of a union to include them.
Coincidentally there was a circus in Charlottetown at the same time, which was much more interesting to the majority of the population. There was no one working at the public wharf at the foot of Great George Street when the Canadian delegates arrived on the steamship SS Victoria, so Prince Edward Island representative William Henry Pope had to handle receptions by himself, including rowing out to greet the new arrivals.
Photo by Lone Primate
Untitled Slide
Charlottetown Conference.
The photo was taken on September 1, 1864
You can see John A. Macdonald (Canada's soon to be first Prime Minister) sitting on steps at the front/middle of the picture.
The photo was taken on September 1, 1864
You can see John A. Macdonald (Canada's soon to be first Prime Minister) sitting on steps at the front/middle of the picture.
British North America Act, 1867
- This act was passed and became law on July 1st, 1867.
- It established Canada as a country.
- It was our first constitution.
Following the conferences in Charlottetown and Quebec City, the basis for the British North America Act was created.
The British North America Act was then drafted and introduced into British Parliament in early 1867.
There was a very small amount of debate in England regarding this significant change to the political structure of one of its colonies.
Why? – Britain had already dealt with the American revolution in 1776 and had no desire to enter into a new conflict across the sea. Additionally, this constitution of the then newly formed Country of Canada meant that Canada would not be severing all ties with Britain.
The BNA received Royal Assent on March 29, 1867, and set July 1, 1867, as the date for the union.
John A. Macdonald became Canada's first Prime Minister.
The British North America Act was then drafted and introduced into British Parliament in early 1867.
There was a very small amount of debate in England regarding this significant change to the political structure of one of its colonies.
Why? – Britain had already dealt with the American revolution in 1776 and had no desire to enter into a new conflict across the sea. Additionally, this constitution of the then newly formed Country of Canada meant that Canada would not be severing all ties with Britain.
The BNA received Royal Assent on March 29, 1867, and set July 1, 1867, as the date for the union.
John A. Macdonald became Canada's first Prime Minister.
Photo by Chris Breeze
What did the BNA Act Do?
- Set out rules for how Canada would be governed.
- Canada could not make its own laws independently of Britain.
- The BNA did not recognize Canada as a separate political body from Britain.
Canada would not be able to make laws independently of Britain until the passing of the Statute of Westminister in 1931 which provided that ability to all dominions of Great Britain.
Photo by MARK-SPOKES.COM
System of Government
- Britain uses a unitary system where power is centralized in one parliament let by a PM.
- Canada decided to use a federal system where responsibilities for governing are divided between two levels.
The framers of our constitution looked at the systems of government used in other countries.
They chose to avoid the United States system of government because although the Americans had a strong constitution, it was felt by John A. Macdonald that their central government had too little power. This would result in the states fighting against each other, with no one with the authority to act as a mediator. (Remember the American civil war???)
Canada also avoided Britain's unitary system because of the geographical concerns of Canada. Great Britain was considerably smaller.
Canada opted for a two-level system of government called the federal system. Canada would have a central government and a number of provincial governments.
Each level would have exclusive control over its own jurisdictions; however, the central government could overrule a provincial law if doing so was considered in the best interest of all Canadians.
Because Canada was to maintain a government similar to that of Britain. Canada’s Constitution also included the conventions of the British Parliamentary system of having the monarch as the head of state and the principle of the Rule of Law.
They chose to avoid the United States system of government because although the Americans had a strong constitution, it was felt by John A. Macdonald that their central government had too little power. This would result in the states fighting against each other, with no one with the authority to act as a mediator. (Remember the American civil war???)
Canada also avoided Britain's unitary system because of the geographical concerns of Canada. Great Britain was considerably smaller.
Canada opted for a two-level system of government called the federal system. Canada would have a central government and a number of provincial governments.
Each level would have exclusive control over its own jurisdictions; however, the central government could overrule a provincial law if doing so was considered in the best interest of all Canadians.
Because Canada was to maintain a government similar to that of Britain. Canada’s Constitution also included the conventions of the British Parliamentary system of having the monarch as the head of state and the principle of the Rule of Law.
Photo by UK Parliament
Division of Power
- Federal government's powers should include matters that apply the same to each province. (s. 91 BNA act)
- postal service, currency, citizenship, defence etc.
The BNA act outlined the responsibilities of each level of government.
You can see further federal responsibilities listed here under section 91:
http://laws-lois.justice.gc.ca/eng/const/page-4.html#h-18
Federal and provincial divisions of power are also listed on page 67 of the text.
You can see further federal responsibilities listed here under section 91:
http://laws-lois.justice.gc.ca/eng/const/page-4.html#h-18
Federal and provincial divisions of power are also listed on page 67 of the text.
Photo by Onasill ~ Bill Badzo
Division of Power
- Provincial government's powers should include matters of a local nature (s. 92 BNA act)
- Education, labour and trade unions, natural resources
- The provinces created a third level of government by creating municipalities wihtin their jurisdiction.
The BNA act outlined the responsibilities of each level of government.
Education was included as a provincial responsibility because of the recognition of special language and religious rights of people in different parts of the country.
The BNA act only identified powers for two levels of government so the provinces delegated some of their powers to municipalities. This provided communities with more control and flexibility over issues of local importance.
You can see further provincial responsibilities listed here under section 92:
http://laws-lois.justice.gc.ca/eng/const/page-4.html#h-18
Federal and provincial divisions of power are also listed on page 67 of the text.
Education was included as a provincial responsibility because of the recognition of special language and religious rights of people in different parts of the country.
The BNA act only identified powers for two levels of government so the provinces delegated some of their powers to municipalities. This provided communities with more control and flexibility over issues of local importance.
You can see further provincial responsibilities listed here under section 92:
http://laws-lois.justice.gc.ca/eng/const/page-4.html#h-18
Federal and provincial divisions of power are also listed on page 67 of the text.
Photo by Nick Kenrick.
Residual Powers
- The Federal government has control of residual powers.
- Law-making authority for areas not assigned to either level of government.
Residual powers:
The law making authority for areas which did not exist at the time the BNA act was written or for areas that were not specifically assigned to either the provincial or federal governments.
This was a smart move on the part of the federal government as it means that any new technology was subject to their authority.
Examples:
Telecommunications, Airports
The federal government can also override provincial jurisdiction in matters that have acquired such importance to impact upon the peace and governance of Canada.
The law making authority for areas which did not exist at the time the BNA act was written or for areas that were not specifically assigned to either the provincial or federal governments.
This was a smart move on the part of the federal government as it means that any new technology was subject to their authority.
Examples:
Telecommunications, Airports
The federal government can also override provincial jurisdiction in matters that have acquired such importance to impact upon the peace and governance of Canada.
Photo by hartlandmartin
Residual Powers (Cont.)
- "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..."
- Section 91 BNA Act
The federal government may also use this section to invoke emergency powers if the nation was threatened.
An example - The October Crisis:
The October Crisis was a series of dramatic events triggered by two terrorist kidnappings in the province of Quebec, in October 1970. This ultimately resulted in a brief invocation of the War Measures Act by Prime Minister Pierre Trudeau
In October 1970, tanks roamed city streets and soldiers in full battle gear raided homes in their hunt for "terrorists."
The soldiers were looking for the Front de libération du Québec (FLQ); French Canadian nationalists who had abducted a British diplomat and a Quebec minister.
Some Canadians felt they were living in a police state. How far would Prime Minister Pierre Elliott Trudeau go?
"Just watch me," Trudeau said on October 13, 1970
Three days later he invoked the War Measures Act and a nation waited with civil liberties suspended.
The War Measures Act:
A Canadian statute that gave the federal government sweeping emergency powers. When the act was invoked citizens could be arrested and imprisoned without the benefit of trial or even a stated explanation.
An example - The October Crisis:
The October Crisis was a series of dramatic events triggered by two terrorist kidnappings in the province of Quebec, in October 1970. This ultimately resulted in a brief invocation of the War Measures Act by Prime Minister Pierre Trudeau
In October 1970, tanks roamed city streets and soldiers in full battle gear raided homes in their hunt for "terrorists."
The soldiers were looking for the Front de libération du Québec (FLQ); French Canadian nationalists who had abducted a British diplomat and a Quebec minister.
Some Canadians felt they were living in a police state. How far would Prime Minister Pierre Elliott Trudeau go?
"Just watch me," Trudeau said on October 13, 1970
Three days later he invoked the War Measures Act and a nation waited with civil liberties suspended.
The War Measures Act:
A Canadian statute that gave the federal government sweeping emergency powers. When the act was invoked citizens could be arrested and imprisoned without the benefit of trial or even a stated explanation.
Photo by Larry He's So Fine
Doctrine of Ultra Vires & Intra Vires
- Intra vires (within the power)
- Passing a law within a government's jurisdiction.
- Ultra Vires (Beyond the powers)
- Passing a law outside a government's jurisdiction.
Although the law-making jurisdiction of both the Federal and provincial government is outlined in sections 91 and 92 of the BNA act. Conflict can still arise between both levels of government when both parties claim legislative jurisdiction over a particular area. When this occurs the courts are then left with the job of deciding which level of government has the power to make laws.
Example of Ultra Vires:
If the provincial government decided that the current law was not tough enough on criminals so it decided to bring back the death penalty, the federal government would ask the supreme court of Canada to have this new provincial law declared “Ultra Vires”. This is because the provincial government has no responsibility for making criminal laws.
Example of Ultra Vires:
If the provincial government decided that the current law was not tough enough on criminals so it decided to bring back the death penalty, the federal government would ask the supreme court of Canada to have this new provincial law declared “Ultra Vires”. This is because the provincial government has no responsibility for making criminal laws.
Photo by MohammadHasan
Statute of Westminister
- Passed in 1931
- Allowed Canada to make laws independently of England.
- Laws could not be overruled if they contradicted British Law.
- Allowed Canada to make trade agreements with other countries.
- Canada still could not amend its own constitution without Britain.
Over time the BNA act was amended as statutes were added, deleted or rephrased.
Canada was becoming more independent from Britain.
The statute of Westminster represented a major constitutional change.
The Statute of Westminster 1931 – provided dominions with the ability to make their own laws independently of Britain.
Two key passages of the Statute of Westminister provided this independence:
"No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof. "
"No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule, or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion."
Canada was becoming more independent from Britain.
The statute of Westminster represented a major constitutional change.
The Statute of Westminster 1931 – provided dominions with the ability to make their own laws independently of Britain.
Two key passages of the Statute of Westminister provided this independence:
"No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof. "
"No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule, or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion."
Photo by ankakay
Concerns with the BNA Act
- Any amendment to the constitution required the assistance of Britain.
- Confusion regarding the division of power. Especially with regards to natural resources.
- Nothing in the constitution guaranteed civil liberties.
Canada would never enjoy total independence as long as the BNA act remained in Britain.
Disputes still arose over which level of government should make laws regarding new issues.
For any new issues, Canada had to ask the British parliament to include the new powers to provide a mandate. To avoid this (ie/ debating these issues in British Parliament) the two levels of government would often enter into shared cost agreements.
Health care is a prime example of a shared cost agreement. Money for health care would be provided to the provinces provided the provinces agreed to spend the money according to guidelines established by the federal government. (Many provinces were not happy about doing this).
The division of power regarding natural resources was a real mess:
The provincial government controlled timber and wood
The Federal government had the fishing industry
It was unclear as to who had control over resources such as uranium, oil, water or natural gas. Both branches of government claimed control over these categories
Britain had no problem letting the constitution go home to Canada but the federal and provincial governments could not agree on procedures to amend the constitution.
Civil liberties:
Basic individual rights protected by law: such as freedom of speech.
Disputes still arose over which level of government should make laws regarding new issues.
For any new issues, Canada had to ask the British parliament to include the new powers to provide a mandate. To avoid this (ie/ debating these issues in British Parliament) the two levels of government would often enter into shared cost agreements.
Health care is a prime example of a shared cost agreement. Money for health care would be provided to the provinces provided the provinces agreed to spend the money according to guidelines established by the federal government. (Many provinces were not happy about doing this).
The division of power regarding natural resources was a real mess:
The provincial government controlled timber and wood
The Federal government had the fishing industry
It was unclear as to who had control over resources such as uranium, oil, water or natural gas. Both branches of government claimed control over these categories
Britain had no problem letting the constitution go home to Canada but the federal and provincial governments could not agree on procedures to amend the constitution.
Civil liberties:
Basic individual rights protected by law: such as freedom of speech.
Photo by tormol
