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THE CANADIAN
FEDERALISM
BRITISH NORT AMERICA
ACT 1867
a British statute creates the federal dominion of Canada
Canada is a British colony subordinate to the UK in
international affairs and subject to imperial limitations in
local affairs:
Imperial Parliament can approve statutes having legal
effects in Canada
British Government has the power to disallowance and
reservation
The Queen appoints the Governor General
BRITISH NORT AMERICA
ACT 1867
does not codify all the constitutional rules of
the dominion
no amending clause
no bill of rights
the parliamentary government is regulated by
constitutional conventions* and not by written
rules
CANADA ACT 1982
A British statute that made some important
“repairs” to the Canadian constitutional law
introduces an amending formula
introduces a (constitutional) bill of rights
(Charter of rights and freedoms)
ends the authority over Canada of the UK
sect. 52 of the constitution
Act
The constitution of Canada includes
The Canada Act 1982
The acts and orders referred to in the Schedule [among
them the BNA 1867]
“The constitution of Canada is the supreme law of Canada and
any law inconsistent with the provisions of the Constitution is
of no force or effect” [supremacy clause]
Amendments to the constitution of Canada shall be made only
in accordance with the amending formula [entrenchment
clause]
the federal parliamentary
government
parliamentary government > the Government is
responsible to the elective Assembly [confidence
rule]
Prime Minister > Leader of the majority party
Head of state > Queen represented by the
Governor General
constitutional conventions
rules of the constitution
rules that are not enforced by the courts (> not legal
rules), but that the courts can recognize
rules considered obligatory by the officials to whom
they apply
can develop from
usage
an agreement between all the relevant officials
the executive branch
Prime Minister > Leader of the majority party
Ministers > Individual responsibility
accountability
responsibility
Cabinet
confidence rule
unanimity rule
confidentiality rule
the legislative branch
Parliament
Queen
Senate
House of Commons
house of commons
307 members > first past the post electoral system
strict party discipline
the terms of the House of Commons:
election at least every 5 years (BNA 1867)
the Governor General can dissolve the chamber in
advance
fixed term parliament (statute) > election every 4 years
the third monday in October
senate
not elected Chamber > members are appointed by the
Governor General
every senator stays in office until the age 75 >
continuous Chamber
24 representatives for every area (Ontario, Quebec,
Maritime and West provinces) + 3 for the Territories
not effective representation of the provincial
interests
limitations of the senate
composition
some provinces are overrepresented, other are
underrepresented
very weak link between senators and
provinces (residence)
the Government has the power to appoint 8
additional senators
governor general
BNA 1867 > the Queen has the executive power > Governor
General
no written rules about his appointment > Queen (advice
Canadian Cabinet now)
important powers exercised on the advice of the Canadian
Government
to give the royal assent to the bills approved by the
Chambers
to appoint senators
to appoint ministers
governor general
Personal prerogatives (no advice)
the appointment of the Prime Minister
the dismissal of the Prime Minister
the dissolution of the House od Commons
CANADA IS A QUASIFEDERALISM (WHEARE)
The technique used to distribute the legislative power
between federation and provinces ***
The federal Government has the power to levy indirect and
direct taxes
The federal Government has the power to appoint the
Lieutenant Governor of each province
The federal Government has the power to disallow
(invalidate) provincial statutes
The federal Government has the power to appoint judges of
the superior courts of each province
PROVINCIAL
CONSTITUTIONS
BNA 1867
title [parliamentary government = separation of powers >
Lieutenant Governor]
sect. 92(1) > provinces could amend their federal
constitutions [today sect. 45 CA 1982] but
not the Lieutenant Governor > colonial dominion
no special procedure > flexible constitutions
limitations from case law (OPSEU v. Ontario) > federal
principle, bilingualism, responsible government
CANADA IS A FEDERAL
STATE
Federal fiscal dominance > since II WW power
back to the provinces
Disallowance power is not already used
The Lieutenant Governors act on the advice of
the provincial Cabinets
The tradition of judicial independence is strong
THE DISTRIBUTION OF
LEGISLATIVE POWERS
double list of matters (not one) both falling
within the exclusive competence of one level
of government
the residual clause is in favor of the federal
Parliament
some important topics are allocated to the
federal Parliament (trade and commerce,
banking, marriage, divorce, criminal law, jails)
WHY A QUASIFEDERALISM?
America federalism was a counter-model
Civil war > too many state powers
Different solution to the problem of
sovereignty
Strong federal government is the answer
FEDERAL COMPETENCES
Unity of the federal state
Army and defense
Economy
Infrastructure and communication
NO treaty making and implementing power
THE SEPARATION OF
LEGISLATIVE POWER IN THE
COURTS
Federalism (entails)
written constitution > separation of powers
a rigid constitution
a judge who resolves conflicts of
competence between the two levels of
government
THE SEPARATION OF
LEGISLATIVE POWER IN THE
COURTS
Neither the American nor the Canadian constitution
expressly provide for a judge
USA > Marbury v. Madison (1803) > Judicial
review of legislation
Canada > Colonial Validity Act > JCPC and
provincial judges had the power to review the
coherence of legislation passed by the Canadian
legislative assemblies with the Imperial statutes >
after 1982 Canadian legislation has to respect the
constitution
THE SEPARATION OF LEGISLATIVE
POWER IN THE COURTS
1867-1949 [JCPC] > a narrow interpretation of
the federal powers and a wide interpretation of
the provincial powers
1949-today [Supreme Court] > growth of the
federal powers along with the transition from dual
to cooperative federalism [/ U.S., because of the
importance of agreements between the 2 levels
of government]
THE POGG CLAUSE IN THE
JCPC INTERPRETATION
matters not included among the federal and
provincial competences + Canadian
unquestionable interest
extraordinary circumstances or danger of the
whole country > this clause could not justify the
derogation from the division of legislative powers
during the economic crisis (1934/35 > // U.S.)
THE POGG CLAUSE IN THE
SUPREME COURT
INTERPRETATION
Residual power branch > when a matter is not
connected with the matters referred to in sect. 91
and 92
Emergency branch > when there is an
emergency to deal with (e.g. the inflation during
the oil crisis in 1973)
National concern branch > when a matter of
national interest should be regulated
SUPREME COURT
9 Judges appointed by the Governor General [Cabinet]
3 from Quebec [law > civil law]
3 from Ontario [practice > = Quebec]
2 from the Western provinces
1 from the Atlantic provinces
the last Court of Appeal for civil, criminal and constitutional
cases
reference jurisdiction
SUPREME COURT > reference
jurisdiction
“The Governor in Council may refer to the Court for hearing and
consideration important questions of law or fact concerning:
(a) the interpretation of the Constitution Acts;
(b) the constitutionality or interpretation of any federal or
provincial legislation;
....
(d) the powers of the Parliament of Canada, or of the legislatures
of the provinces, or of the respective governments thereof,
whether or not the particular power in question has been or is
proposed to be exercised”
SUPREME COURT >
REFERENCE JURISDICTION
Governor General > Cabinet
Always used for constitutional cases
Not a traditional judicial function, because it
lacks the adversarial and concrete character of a
controversy
An advisory opinion has no legal effects and is
not binding on the parties to reference
CONSTITUTION
AMENDMENT
BNA 1867 contained no general provision for its own
amendment > Imperial statute > Westminster Parliament
Statute of Westminster 1931 > Canada has the power
to repeal or amend some Imperial statutes, but not the
BNA 1867 [Opposition of the provinces]
Imperial conference of 1930 > The UK Parliament can
pass a statute applying to a dominion only with the
consent of dominion [practice] > for every amendment
involving provincial powers the unanimous
provincial power was obtained
PATRIATION REFERENCE
(1981)
1981 Trudeau wants the patriation of the Canadian
constitution, also without the provincial consent
Supreme Court
1.
Is the provincial consent foreseen by the law? No
Is the provincial consent foreseen by a constitutional
convention? Yes
Must be unanimous the provincial consent? No, so
Quebec had not a veto power
> Agreement with 9 provinces (Quebec dissenting) >
Canada Act 1982
CANADA ACT 1982
A British statute that made some important
“repairs” to the Canadian constitutional law
Introduces an amending formula
Introduces a (constitutional) bill of rights
(Charter of rights and freedoms)
Ends the authority over Canada of the UK
AMENDING FORMULA
General amending procedure (38) [once]
Unanimity procedure (41)
“Some but not all provinces” procedure (43) > for amend
provisions not applying to all provinces [seven]
Federal Parliament alone procedure (44) > for amend
provisions relating to the federal executive and to both
houses of Parliament [twice]
Provincial legislature alone procedure (45) *** >
provincial constitutions
general amending
procedure
For amendments not otherwise provided for
Requires the assent of federal Parliament and 2/3
(7/10) of the provinces representing at least 50% of
the population
No single province has a veto power > but there
is an opting out right***
The 50% of population means at least the
consent of 1 of the 2 most populous provinces
[Ontario or Quebec]
UNANIMITY PROCEDURE
Requires the assent of the Canadian Parliament and of all
provinces
For 5 subjects:
1.
the office of the Queen, the Governor General and the
Lieutenant Governor of a province
the right of a province to have a number of representatives in
the House of Commons not less than the number of senators
by which the province is represented within the Senate
the use of French and English language
1.
the composition of the Supreme Court of Canada
2.
the amending formula
PATRIATION WITHOUT
QUEBEC
The Canada Act is binding to all provinces, but
Quebec refuses to participate in
constitutional changes involving the use of the
new amending formula >
Opting Out Right***
Override Clause***
OPTING OUT RIGHT
When an amendment “derogates from the
legislative powers, the property rights or any other
rights or privileges of the legislature or government
of a province” the legislative assembly of a
province can pass a resolution of dissent and
therefore the amendment shall not have effect in
that province (sect. 38,3)
No veto power > no legal effects of an
amendmennt within the dissenting province
A resolution of assent can be passed at any
times
OVERRIDE CLAUSE
(1) Parliament or the legislature of a province may expressly declare
in an Act of Parliament or of the legislature, as the case may be, that
the Act or a provision thereof shall operate notwithstanding a
provision included in section 2 or sections 7 to 15 of this
Charter.
...
(3) A declaration made under subsection (1) shall cease to have
effect five years after it comes into force or on such earlier date as
may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a
declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under
limitation 33.
OVERRIDE CLAUSE
The result of a compromise during the patriation
process
The effects of the declaration last 5 years and can be
renewed only once
The legislature must declare expressly the use of
the override clause
Some charter rights can be overriden
fundamental freedoms
legal rights
equality rights
OVERRIDE CLAUSE:
AN EVALUATION
Practice
Few used outside Quebec
Used by Quebec as instrument of political
opposition
Parliamentary
sovereignty
sovereignty
v.
Constitution
Parliament v. Judges > problem of legitimacy of
the judicial review of legislation > dialogue
between the Court and the Legislature / weak
judicial review of legislation
PATRIATION WITHOUT
QUEBEC
Meech Lake Agreement (1984)*** > no unanimity of
provinces
Charlottetown Agreement (1992)*** > referendum
defeated
Parti Québécois (1994) > referendum on sovereignty
defeated [50,6% / 49,4%] (1995) > Secession Reference
(1998)
The federal Parliament passes
a motion defining Quebec a distinct society***
the Regional veto Act (1996)***
THE CONTENTS OF THE
TWO AGREEMENTS
The recognition of Quebec as a distinct society
A greater power of Quebec in the migration
policy
A provincial role in the appointment of the
Canadian Supreme Court
Some limitations on the federal spending
power
A veto power for Quebec on some constitutional
amendments
SECESSION REFERENCE
Could Quebec secede unilaterally from Canada?
No under the constitutional law > a secession would
require a constitutional amendment (it is no clear
what the procedure is to use) and the agreement
between the federal Government and the other
provinces
A referendum in Quebec that yielded a clear
majority on a clear question in favour of secession
can not accomplish a secession, but would confer
legitimacy on demands for secession and would
give rise a reciprocal obligation on all parties to
negotiate a constitutional change
CLARITY ACT 2000
The House of Commons has the power to decide if a
a referendum question on secession is clear > if the
question is not clear, the federal Government cannot
negotiate the secession
The House of Commons has the power to decide if
the majority in favour of a secession is clear by
evaluating the size of majority, the turnout and any other
matters or circumstances it consider to be relevant
Under the constitution of Canada there is no right of
unilateral secession > an amendment of the
constitution would be required for a province to secede
from Canada
QUEBEC IS A DISTINCT
SOCIETY
Expression born in the political debate to highlight
the uniqueness of the Canadian province
within the federation
The majority of the Canadian french-speakers
live in Quebec > in Canada french-speaker are a
minority
The majority of the catholics live in Quebec > In
Canada catholics are a minority
Civil law tradition due to the French colony that
UK obtained with the Treaty of Paris
QUEBEC HISTORY
Treaty of Paris (1763) New France was ceded to U.K. by France
The Quebec Act 1774 restored the civil law system abolished by the
royal proclamation of 1773
The Constitutional Act 1791 Upper Canada (English) and Lower
Canada (French) > the law of the former province of Quebec remains in
force until modified by the Assemblies of both provinces. > Upper
Canada modifies it, Lower Canada no.
The Union Act 1840 created a unique province (Canada) and
confirmed the co-existence of two legal systems
The BNA 1867 divided the former province of Canada into 2 new
provinces Ontario (former Canada West and Upper Canada) and
Quebec (former Canada Est and Lower Canada) > every province
manteins its body of law.
REGIONAL VETO ACT
Ministers of Government cannot submit resolutions on
constitutional amendments without the consent of:
Ontario
Quebec
British Columbia
2 of the Atlantic Provinces
2 of the Western Provinces
Is it a constitutional statute? maybe not, because it is an
ordinary statute that indirectly “modify” the amending formula
Nevertheless it is a statute able to influence the Government
decisions concerning the constitutional amendments
ABORIGINAL PEOPLE
Sect. 91(24) > Federal Parliament makes laws in
relation to “Indians and lands reserved for the
Indians” > why?
The level of government able to respect the
Indian reserves, the treaties with Indians and
the Indians rights
One national policy in this matter
Indians = aboriginal people who had been
living there long before European contact >
Indians + Métis + Inuit (sect. 35 Charter)
ABORIGINAL PEOPLE
Three territories - created by law - where the
majority of the aboriginal people live
Elective and legislative Assemblies >
separation of legislative power similar to that in
force between Federation and Provinces
North West (1875)
Yukon (1989)
Nunavut (1994)