Unit 1: The Canadian Constitution Flashcards
A Mixed System
The prorogation crisis of 2008 illustrates the mixed constitutional system that exists in Canada:
A mixture of written texts and unwritten constitutional rules referred to as ‘conventions’.
A mixture of elected and appointed constitutional actor
Constitutional Time-line
1867: Confederation and the BNA Act 1867
1873: Establishment of the Supreme Court of Canada
1931:Statute of Westminster
1949: Abolition of Appeals to the Judicial Committee of the Privy Council (JCPC)
1952: Appointment of first Canadian born Governor General
1960: Canadian Bill of Rights
1981:Reference re Patriation of the Constitution
1982:Constitution Act 1867 + Constitution Act
1982” (Charter of Rights and Freedoms)
Actors
Elected:
The only elected actors in our system are Members of Parliament (MPs) that reside in the lower house – the House of Commons.
At the provincial level, the name varies: MNAs (PQ), MPP (ON); MHA (NFLD)
There are 338 MPs in the federal House of Commons.
The only parliamentary actor to be elected is the Speak of the House of Commons
Appionted:
The vast majority of constitutional actors in the Canadian system are appointed:
The Governor General
The provincial Lt. Governors
Cabinet Ministers
Senators
Supreme Court of Canada justices
The Prime Minister
Constitutional Rules
The Canadian constitutional system is a mixture of written rules contained within a series of constitutional documents such as:
the BNA Act 1867, the Canadian Bill of Rights, the Constitution Act 1982
It is also based on a number of unwritten constitutional principles known as ‘conventions’ that are derived from the preamble to the British North America Act (BNA) Act 1867:
‘a Constitution similar in principle to that of the United Kingdom’
BNA Act, 1867
United four British North American colonies into the Dominion of Canada:
Ontario, Quebec, Nova Scotia and New Brunswick.
Established a federal union with a division of powers between two orders of government:
Section 91 (Federal powers)
Section 92 (Provincial powers)
Retained an Imperial connection through the Governor General, the British Crown, and the Westminster Parliament.
Confederation: 1867 to 1999
1867:Ontario, Quebec, New Brunswick, Nova Scotia
1870:Manitoba, Northwest Territories
1871:British Columbia
1873:Prince Edward Island
1898:Yukon Territories
1905:Alberta, Saskatchewan
1949:Newfoundland and Labrador
1999:Nunvavut
A Colonial Constitutional Structure
BNA Act 1867 as an example of colonial evolution and not constitutional revolution such as the United States.
Not a traditional constitutional document – it is an act of the Imperial Parliament until 1982 – the ‘patriation of the Constitution’ – when the BNA Act 1867 is domesticated and renamed the Constitution Act 1867.
Canada is not a sovereign nation but a Dominion of the Imperial Parliament until 1982 with the passage of the Canada Act 1982.
Two Key Passages in the Preamble
‘a Constitution similar in Principle to that of the United Kingdom’
‘And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire’
The Canadian Constitution
In the formal constitutional sense, Canada is not a democracy but a constitutional monarchy as executive power is vested in the Queen and the Queen’s Privy Council for Canada.
Formal versus Functional Constitution
Although section 9 suggest Executive Authority is vested in the Queen – the formal constitution - this is not how the Canadian constitution functions.
The written elements co-exist with the unwritten elements and produce a constitutional democracy and not a constitutional monarchy.
Section 9 is only exercised on the advice of the Crown’s chief constitutional advisor, the Prime Minister.
Constitutional Rules in Canada
The major written parts of the Canadian Constitution:
Constitution Act, 1867 and 1982
Statutes of Westminster
Canadian Bill of Rights
Canadian Charter of Rights
Judicial Decisions
The unwritten rules are referred to as conventions and are derived from the preamble to the BNA Act 1867.
Conventions are constitutional practices that develop over time and accepted as legitimate constitutional practices.
Derived from Canada’s colonial past as a member of the British Empire.
However – not legally enforceable like written rules but politically enforceable.
Colony (1867) to Nation (1982)
1865:Colonial Laws Validity Act
1931: Statute of Westminster
1949: Abolition of Appeals to JCPC
1952: ‘Canadianization’ of Governor General
1982: Canada Act
Three Acts
Canada Act 1982
An act of the British Parliament transferring the BNA Act 1867 to the Parliament of Canada.
Constitution Act 1867
The patriated and renamed BNA Act 1867 as a domestic legal instrument – the ‘Governments’ constitution’.
Constitution Act 1982
amendments passed by the Parliament of Canada in 1982 – the ‘Citizens’ constitution’
Constitution Act 1982
The Charter of Rights and Freedoms
The Amending Formulae
Aboriginal Rights (section 35)
The Natural resources amendment (section 92(A))
Constitutional Conventions
Constitutional practices that develop over time and respected by political actors as essential to the constitutional fabric.
Provide flexibility to the constitution and allow it to remain contemporary, as the written component was largely enacted in 1867.
Important Conventions
The position of Prime Minister.
The Appointment of a Prime Minister by the Governor General.
The Summoning of Senators by the Governor General.
The issue of confidence and responsible government/
