Power & Authority in Canada Study Notes 2

POWER & AUTHORITY IN CANADA

The Constitution

  • Definition: A constitution is not an ordinary law; it serves as the foundational rule determining how all other laws and institutions operate.

  • Functions of a Constitution:

    • A constitution can be defined as a set of rules that authoritatively establishes both the structure and the fundamental principles of a political regime.

    • This authoritative set of rules "constitutes" (creates or establishes) the regime.

Four Core Functions of Constitutions

  1. Assign Powers:

    • Defines who exercises legislative, executive, and judicial authority.

    • Example: Parliament makes laws, Cabinet executes them, and courts interpret them.

  2. Divide Power:

    • Sets responsibilities between different levels of government.

    • Federalism: Federal government in Ottawa manages national issues (e.g., defense), while provincial governments manage local issues (e.g., education).

  3. Limit Power:

    • Establishes rights and liberties to prevent government abuse of power.

    • Example: The right to freedom of religion prevents the government from imposing a specific faith.

  4. Provide for Change:

    • Sets rules for constitutional amendment to adapt to evolving political and social needs.

    • This makes the constitution both a blueprint for government and a limit on government power.

Constitutional Forms

  • Basic Forms of Constitutional Rules:

    • Constitutions can be categorized into two types: Conventions and Laws.

    • Distinction based on enforcement mechanism.

Constitutional Conventions

  • Definition: Unwritten rules enforced politically and through public opinion, not by judiciary.

  • Example: The Prime Minister must resign following a confidence vote.

Constitutional Laws

  • Definition: Rules enforceable by courts, subdivided into:

    • Organic Statutes: Ordinary laws regulating political institutions.

    • Example: The Supreme Court Act is an ordinary act of Parliament that can be altered with a simple majority vote.

    • Entrenched Acts: Higher laws that require a formal constitutional amendment to change, making them more rigid.

    • Example: The Constitution Act of 1867 and the Constitution Act of 1982, including the Charter of Rights and Freedoms and Indigenous rights.

Key Differences

  • Organic Statutes: Flexible and subject to change via majority vote.

  • Entrenched Acts: Rigid, harder to amend, and form the foundational framework of Canada's political structure.

Constitution Act of 1867

  • Original title: British North America Act.

  • Notably did not create the Supreme Court of Canada, established later in 1875 through statutory measures.

  • Created the union of three British colonies into the new political entity known as the “Dominion of Canada.”

  • The term “dominion” suggested a regime with autonomy, but not full independence from Britain.

  • Key stipulations post-Confederation:

    • Canadians remained subjects of the British Crown.

    • Foreign policy was directed by Britain.

    • The Judicial Committee of the Privy Council was the final court of appeal for Canadian cases.

    • Britain retained control over Canada's Constitution.

Constitution Act of 1982

  • Patriation: Canada achieved full constitutional independence from the United Kingdom.

  • Introduced essential components:

    • Canadian Charter of Rights and Freedoms: Embeds fundamental rights and freedoms within the Constitution.

    • Section 35: Acknowledges Indigenous treaty rights and inherent rights.

    • Establishes an equalization principle for reducing disparities among provinces.

    • Formalized procedures for amending the Constitution.

    • Section 52 declares the Constitution as "the supreme law of Canada."

  • Notably, Quebec did not sign the 1982 agreement, leading to ongoing political tensions.

Indigenous Rights in the Constitution

  • Definition of Indigenous: Refers to "the Indian, Inuit, and Métis peoples of Canada."

  • Section 35 (1982) recognizes:

    • Treaty rights concerning land, annuities, hunting, and educational rights.

    • Negotiations for comprehensive land claims agreements instead of treaties since 1975.

    • Inherent rights encompassing land ownership and self-government.

  • These Indigenous Rights are entrenched in the Constitution, preventing changes without meaningful consultation and consent.

  • Ongoing discussions focus on themes of sovereignty, nation-to-nation relationships, and reconciliation efforts.

Amending the Constitution

  • The Constitution Act of 1982 instituted five methods for amendments:

    1. Section 44: Federal Parliament can amend federal institutions.

    2. Section 45: Provinces can alter their own constitutions.

    3. Section 43: Joint amendments by Parliament and affected provinces (e.g., adjustments to provincial boundaries, language rights).

    4. Section 41: Requires unanimity from all provinces for fundamental changes (impacting the Crown, Supreme Court, official languages, and the amendment formula).

    5. Section 38: The "7/50 rule" entails amendments needing approval from Parliament along with 7 provinces accounting for at least 50% of Canada’s population.

  • This complexity illustrates the deliberate difficulty of constitutional amendment, aiming to preserve stability within the governance structure.

Conclusion

  • Thank you for attending, and see you in the next class!