Transcript Constitutional Government

Constitutional
Government
Chapter 5
What does a constitution do?
Constitutes a regime
2. Limits the powers of
government
3. Provides the ground
rules for how
government
operates.
1.
British North America Act,
March 29, 1867
Since 1982, this act is known as
the Constitutional Act, 1867.
National Archives of Canada
What makes up a constitution?
preamble
2. organizational chart
3. amending clause
4. bill of rights
1.
Constitution Act, 1982
This act allowed for the patriation of the
Constitution and was passed after a
political dispute that divided the Canadian
provinces. It gave Canada a Charter of
Rights and Freedoms and a general
amendment formula, which allows
Canadians the opportunity to make
changes to the Constitution.
National Archives of Canada
What makes up the Canadian
Constitution?
1.
2.
3.
The Canadian
Constitution is not a
single document, but a
series of documents.
The first document is
the BNA Act.
Then there is the …
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Manitoba Act, 1870
Ruperts Land and NWT
order
BC Terms of Union
Constitution Act, 1871
PEI Terms of Union
Parliament of Canada
Act, 1875….
There are 30 different
acts and amendments
that make up the 1982
Constitution.
The main Constitutional Components
The Constitution Act, 1867
1.
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Amendments to the Constitution Act, 1867
2.
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1907-1964
British Statutes and Orders-in-Council
3.
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Statute of Westminster, 1931 declared
Canada to be independent of Britain.
Organic Canadian Statues
4.
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5.
British North America Act
Creation of Manitoba, Alberta
Constitution Act 1982
How was Canada constituted?
1.
2.
As a parliamentary
democracy
As a federal
government, where
the federal
government was
highly centralized
How did the Federal Division of Power
favour the federal government?
Section 91 gave the federal government
29 classes of jurisdiction.
Some of the big ticket items were:
1.
2.
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regulation of trade and commerce
any mode or system of taxation
military and defence
currency and coinage.
public debt, property, credit, postal service
What did the provinces get?
At the time of federation the provinces
got the minor areas including:
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2.
local or private matters in the province
borrowing money on behalf of the province
licenses to raise provincial revenue
justice in the province.
In section 92 the province received
classes of subjects that were not
considered important at the time.
Section 92: what the provinces got
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2.
3.
4.
control of public
lands
property and civil
rights
municipal
institutions
health and welfare
What is a supremacy clause?
1.
2.
Because the constitution delineates both
the separation of powers as well as what
powers the two governments share, the
constitution also establishes which side
has more power in cases of
disagreement.
The supremacy clause gives residual
power to the federal government (POGG
clause).
More ways the federal government
can control the provinces
1.
2.
disallowance: the federal government
rules a provincial law null and void within
one year of its passage (this has been
used 110 times, the last in 1943).
reservation: the bill has passed the
provincial legislature but is not passed by
the lieutenant governor.
Ways to settle disputes
1.
2.
Because Canada is based on a
parliamentary democracy there were few
ways to settle disputes: the federal
government usually took control.
The judiciary was used in limited cases
and in the early days these went to the
Judicial Committee of the British Privy
Council (JCPC).
How can the Canadian constitution
be amended?
1.
2.
3.
With great difficulty.
The 1982
Constitution Act set
up the formula for
future amendments
Need resolutions in
the HoC and Senate
as well as the 2/3 of
legislative
assemblies with
50% of population.
Constitutional Change
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4.
Initial change was the territorial borders
of the provinces and the territories.
Second was achieving autonomy from
Britain, and the abolition of court of
appeals for the Judicial Committee of the
Privy Council.
Third was achieving a formula by which
Canada could patriate the constitution.
Fourth was integrating civil liberties into
constitutional protection.
Failed Constitutional Change post
1982
 Meech
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Lake accord
Main theme was distinct society
Enlarged group rights
Left out a number of groups, women, natives.
Called the Quebec round of constitutional talks
 Charlottetown Accord
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Canada Clause
Triple- E senate
Aboriginal Self-government
Division of Powers
Why do we have a bill of rights?
1.
2.
3.
4.
5.
The British do not have a bill of rights.
One reason is the nature of how a
parliament in constructed.
Parliament is supreme
The Americans rejected parliamentary
sovereignty and all it entailed.
“We the people” acknowledges that the
people give the power to the government
A bill of rights embedded in the constitution
doesn’t make sense in a parliamentary
system.
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3.
It’s counterintuitive to have parliament
supremacy and the notion of rights.
To have the courts adjudicate disputes
between citizens and governments takes
power away from parliament.
The notwithstanding clause, section 33
gives all parliaments in Canada the right
to veto a court decision.
So why do we have a bill of rights?
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2.
Because it is part of
a global rights
movement.
Trudeau envisioned
a “just society” and
the bill of rights
would make
Canada part of the
global movement.
What exactly does the Charter do?
1.
2.
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4.
5.
It protects the citizens from government.
Constitutions in effect limit the power of
government in the traditional sense.
These rights are known as negative
rights.
They are the right to be free from
government.
Canada has both positive and negative
rights
What a charter does not do
1.
2.
3.
It does not deal with private matters.
The constitution protects us from
government, but is not intended to
protect us from each other.
This does not mean that people do not
try to use the constitution to that end.
How the British have a
“Constitution” similar to Canada
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The British do have some
constitutional documents in
the sense that the have
documents that “constitute”
the regime.
 The Magna Carta, Petition of
Rights, Parliament Acts, etc all
act to “constitute” the regime.
 These are not combined as
Canada did into one
constitutional document.
How the British Constitution differs
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The British do not have the separation of power
documents such as secs. 91 and 92 of the BNA
Act
Why?
Because they are a unitary state and do not
need to divide the powers between levels of
government.
Over time, they have devolved power to
subordinate units of government.
But these are not constitutional and therefore
can easily be rescinded by acts of parliament.
The British do not have a constitutionally
entrenched Bill of Rights
 Do
people in Britain lack basic rights?
 No, they have rights established through
both the legislature and common law
experience.
 The rule of law provided the British people
with the protection of rights varying from
private property to freedom of speech.
 Not having a constitution has benefits as
well.
The American Constitution
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Fourth President
1809-1817
Based on a revolutionary
tradition
 Power is derived from the
governed.
 Government must be
limited
If angels were to govern
men, neither external nor
internal controls on
government would be
necessary.
How the Americans limited
government
1.
2.
3.
4.
separation of powers
checks and balances
federalism
bill of rights