The Constitution POLS 2300

Types of Institutions

State institutions- institutions that are related to the constitution
They get their authority from constitutional documents
Political Institutions- structure democratic expression within states; closely related to citizen behavior
Structure democratic expression within the state. Example... political parties, media

The Constitution

Objectives
What is a constitution?

What are the components of the Canadian constitution?

How can we change the Constitution? How has the Canadian Constitution changed over time?

WHAT IS A CONSTITUTION?

CONSTITUTION - DEFINED
constitution - the fundamental rules by which a country is governed
- written and unwritten tells us how a GOV operates, the supreme law (takes precedent over other laws) that outlines state power

Tells us about what we value

Three key relationships
1. branches of government- what the basic institutions are, how elections work, define the branches of GOV
2. levels of government (division of power)- tell what things our GOV AND other GOV can do
3. state and the people- delineates the limits of governmental power between citizens and state, what is it are governments not allowed to do to citizens, also states what GOV MUST do required in the consitution

written (fundamental laws are written down in one of more constitutional documents) or unwritten (principles of the constitution that consist of customs, conventions, statutes, not in one document)
United Kingdom= Unwritten
American Constitution= Written
CAN= mix of both, complicated

Reminds us of supreme law

WHAT ARE THE COMPONENTS OF THE CANADIAN CONSTITUTIONS?

CANADIAN CONSTITUTION

Entrenched – means that the things that are written down can only be changed by the use of the amending formula- 13 legislatures have to agree to make that change
- Constitution Act, 1867 (formerly the BNA Act)

Used to be called the British North American act

- Constitution Act, 1982 including the Charter
- includes the charter of rights and freedoms

Nonentrenched

can be changed 50% +1, laws similar to other laws (precedent)

- acts of a constitutional nature- written but not entreched

- judicial decisions- changed our understanding of the consitution

- conventions- not written, not entrenched

A constitution to that of the United Kingdom... the British constitution is not written
All the convention that exists in British politics WE INHERIT
Responsible parliamentary GOV

CONSTITUTION ACT, 1867

Constitution Act, 1867
- The Union and the Crown- king and his powers
- Executive Powers- cabniet
- Legislative Powers- HOC SENATE
- Provincial Constitutions-
- Federalism- one of the most important things in CAN GOV
- The Judiciary
CONSTITUTION ACT, 1982
Constitution Act, 1982
- equalization
- provincial control over natural resources
- Official Languages Act
- Aboriginal rights (Section 35)
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed- those rights we say they have been upheld, if GOV action goes against this, they can sue
- Charter of Rights & Freedoms
- amending formula

3. Citizens of the state relationship

ACTS OF A CONSTITUTIONAL NATURE

- an ordinary statute that supplements the entrenched constitution by applying a
general principle to specific circumstances

Laws or acts of the cabinet, we think of them as constitutional weight but are not subject to the amending formula

- British Statutes and Orders in Council – amendments to the BNA Act
e.g. terms of union for BC and PEI

- 1. there would always be a ferry to go to the main island of PIE to NS, said they should build a bridge... has to get the consent of the policy makers to be ok with giving up the ferry and having the confederation bridge

- organic Canadian statutes
- the acts that created MN, AB, SK
- Indian Act, Supreme Court Act, Canada Elections Act, Bill of Rights, Constitutional Veto Act, Clarity Act

- even though problematic, has import weight with the Crown and indigenous people

- can and has been changed by the lib GOV just need 50+1

- We had a bill or Rights in the 60’s

- clarity act: can be changed

- Canadaian elections act: have major changes in 2018

JUDICIAL DECISIONS
judicial review - the authority of the courts to invalidate laws passed by Parliament
or provincial legislatures that they deem to be in violation of the Constitution.

Courts don’t do this proactively; people have to ask them
Important part of the legal system
Judges are there to interpret the constitution and tells us what it means
- Judicial Committee of the Privy Council (1949) JCPC – last place for judical review
- Supreme Court of Canada AFTER 1949- Final court of appeal

CONVENTIONS
DEFINITION: unwritten rules based on custom that binds political actors to adhere to the tradition
of the constitutional order

- Not adjudicated by courts
widely accepted informal constitutional rules
- not legally enforceable by the courts
- the reason we would know a convention would be violated is because everyone would be really mad about it

- the principle is so important, PUBLIC OPINION ADJUTICATES IT

- No mention of the prime minister in both versions of the constitution 1867 1982

- examples?

The senate of CAN is a legislative body that has almost identical powers to HOC, we now think its illegitimate so it can never say no to anything, convention of non-use

HOW CAN WE CHANGE THE CONSTITUTION? HOW HAS THE CANADIAN CONSTITUTION CHANGED OVER TIME?

CONSTITUTIONAL CHANGE
Missing from the BNA, 1867 (Roger Gibbins)
1. Québec - Québec's place in the federation
2. Indigenous people – awareness about indigenous people
3. popular sovereignty – idea that the people as Canadians are aware of how the power resides, power of the people
4. Rights – some from British conventions but no charter yet
5. Independence – did not mention Canada as ani independent country

We were a dominion of THE uk

CONSTITUTIONAL CHANGE – 1867 – 1930s

BNA Act,1867 – unpatriated – means" to bring home”

If we wanted to make changes, we needed the British GOV’s approval
Problematic: 1. for independence reasons 2. ability to change constitutions that involves both levels of GOV

1931 - Statute of Westminster British law that declared that Britain and its Dominions
were constitutionally “equal in status.” – making them fully independent

Established all of the dominions that existed (new Zealand, Australia...) making them fully independent
Balford declaration document in 1926 was recommending this policy- CAN realized they need an amending formula so when this happens we can change it

BUT

statute of Westminster contained a clause allowing the British Parliament to amend the BNA Act, 1867

changes to the BNA Act would occur through:
1. Amendments by the British Parliament - unanimous provincial consent

Everyone would agree... federal GOV and all the provinces

2. Statues/orders in council

- changes to the Indian act example
3. Judicial decisions

The constitution remained UNPATRIOATED

CONSTITUTIONAL CHANGE - 1940s – 1950s

Attempts for a domestic amending formula were made in 1935–36 and 1949

Mega-constitutional politics (Peter Russell)
- idea that there are different types of changes to a constitution: some are low level changes (like from newfoundland to newfoundland and Labrador)

BIG changes that will change the federation in a dramatic way

Patriation failures
- 1964 - Fulton-Favreau Formula

- One amending formula, nothing else in it

- Quebec decided to change their mind and not support this change, withdraw as they see this as an opportunity to discuss other issues {place of Quebec in the federation}

- 1971 - Victoria Charter

- tried again here

- inclusion of political and language rights

- involvement in the nomination of supreme court judges

- Quebec with draws again... CONVENTION SAYS... ALL PROVINCES NEED TO BE UNANOMIOUS.... PACKAGE IS DEAD... this happened 2 times
- both failed because Québec withdrew support

PM Pierre Trudeau and Rene Levesque Image

Rene says the federation has been terrible to us (Quebec)
Says they want a sovereignty association
Trudeau does not like this idea
During the campaign when Rene is asking everyone to vote for separatists
T says... he will immediately take action to renew the constitution and won't stop until its done”
Rene likes this, Quebec is happy
BUT only 40 percent of Quebec vote of separatism and they lose
In 1980... Trudeau says he's had enough and are going to send an amendment package to Britian on their own, WEIRD because it BREAKS CONVENTION, bold move, assumed you needed to have all the provinces on board to change the constitution … seen in the Victoria and Fulton formulas
People are angry

REFERENCE POWER- THE ability of the gov (federal) and PROV to ask a question to the highest court (supreme) to get feedback

CONSTITUTIONAL CHANGE - PATRIATION

Patriation Reference, 1981- most CONSITUTIONAL LAW COURT CASES IN THE COUNTRY

The federal government ASKED the SCC
1. Was unilateral patriation legal? unilateral patriation would be legal BUT unconstitutional in a conventional sense. CAN THE GOV CHNAGE THE CONSITUTION ON ITS OWN

2. Did a convention of provincial consent exist? substantial degree of provincial consent, SHOULD THEY ASK FOR CONSENT

SCC: yes & yes

BUT... they shouldn’t... they would be operating outside of the norms

The convention they say exist is a substantiable degree of PROVINCIAL CONSENT

Different from unanimous

Story of Patriation 1982 constitution

Held at the national convention Centre
Invites all of the premiers
8 of them have rooms at the chateau of Laurier
Rene stays in a hotel on the other side of the river
One night, the attorney general of Saskatchewan and 2 other have a conversation on how they can have a constitution everyone can agree on
They knock on everyone's doors and wait for agreement
Rene is across the river... he drives the next day back there... there is a paper that says CAN and the provinces have come to a deal on the CAN constitution
Rene was upset
THEY CAME TO AN AGREEMENT WITHOUT QUEBEC
They can do this because the SCC said you need a “substantial degree of consent”- he cant do anything about it

Picture of Trudeau and the Queen

Signs the document that makes Canada independent
Constitution becomes patriated in 1982

CONSTITUTION ACT, 1982

Constitution Act, 1982
equalization
provincial control over natural resources
Official Languages Act
Aboriginal rights
Charter of Rights & Freedoms
amending formula

CONSTITUTIONAL CHANGE – AMENDING FORMULAS
amending formula - formal process for changing a written constitution
domestic amending formula = patriation

Included in the 1982 formula

- 44 – things parliament can do but do not need consent

Some things require 2 provinces (43)
Bunch that requires unanimous agreement
750 does something that makes Quebec hates the constitution even more

Friday September 22^nd, 2023 CONT

CONSTITUTIONAL CHANGE - PATRIATION

“And no one cheered . . . - The struggle over the constitution was shaped by
dreams and compromises. The participants brought to the negotiations a
complex mix of goals and dreams, only some of which are visible in the final
outcome. For some dreams, especially those of Québec nationalists, the
constitutional settlement represents an historic defeat. For others, the
settlement represents a sweeping compromise” (Banting & Simeon, 1983: 3).

CONSTITUTIONAL CHANGE
Meech Lake Accord- brough to the floor by 2 factors (Trudeau leaves office replaced by brain Mulrooney, and Robert Bourassa)

1986: “five conditions” for Quebec to engage in constitutional negotiations
- sends those five demands to Brian Mulroney, he brings the other 9 premiers to discuss

Provincializes the 5 demands

1987: Meech Lake Accord – provincialized all but distinct society

PM Brian Mulroney & Robert Bourassa, Quebec Premier

idea of distinct society, this would be written into the preamble of the constitution (master document)
Wanted to use immigration so that French language would still be passed on
The deal is made: premiers get together make it and then present it to Canadians

CONSTITUTIONAL CHANGE

Meech Lake Accord- the Quebec round- was focused around Quebec to sign the constitution
1986: “five conditions” for Quebec to engage in constitutional negotiations
1987: Meech Lake Accord – provincialized all but distinct society
1990: Meech Lake Accord fails – MN & NL

FAILS
2 components of the 5 require unamioty, other 3 require 750... Changed to that ALL need it to be unanimous
N and L does not approve
Manitoba said they needed to have everyone agree to get rid of these public hearings
Elijah Harper, Manitoba MLA Indigenous induvial said no
Brian Mulroney is a quebeer and wanted to bring them into the constitution

CONSTITUTIONAL CHANGE
Charlottetown Accord
1992: (28 August) First ministers and Indigenous leaders sign the Charlottetown Accord
- created by brain Mulroney

Canada round
Charlottetown Accord
1992: (26 October) Charlottetown Accord is defeated in nationwide referendum

- Says there is an inherit right for indigenous people to self-govern
- triple e senate (equal, elected, and effective)
- Wanted to create a senate that is equal (everyone has the same number of seats, they would be elected, and they would be able to exert their power)
- Canada clause: had random phrases?
Different in creation: ML: 10 white men came together to be made
CA: Asked for a lot of Canadian feedback before they met and came up with these ideas
Difference in being ratified
ML: Ratified through each of the provincial governments going to the highest level (supreme court)
CA: There was a referendum (asked Canadians what they thought)

Globe and mail article

CAN did not want Charolette accord
Rejected in all western provinces and in Quebec
PIE, NL, NB loved it

Why it may have failed...

Size of the package... they may like one part but hate another part so much they can't support it
2^nd big attempts to give a branch to Quebec fails

CONSTITUTIONAL CHANGE
Differences Between Accords
1. focus
- Québec round vs. Canada Round (bringing in more actors=West, Indigenous people)
2. negotiations
- executive federalism vs. multilateral negotiations (idea that indigenous leaders were able to participate in this conversation)
3. public involvement
- none vs. substantial (before – Spicer Commission and after referendum)

CONSTITUTIONAL CHANGE
“Canadians . . . would much prefer to make do with political institutions poorly designed for the nineteenth century than engage in constitutional reform” (Gibbins, 2009).

non-constitutional change

Québec is a distinct society (1995) and a nation (2006)
Constitutional Amendments Act
Senate reform
Too much work... would need to talk about Quebec and indigenous peoples so they just dance around the mention of the constitution

CANADIAN CONSTITUTION – AMENDING FORMULAS
Constitutional Amendments Act, 1996

act of Parliament
sets out the combination of provinces and regions whose support is needed before the Canadian Cabinet presents proposed constitutional changes to Parliament
changes to 7-50 rule, replaces it
We cant use the amending formula to change the mending formula
Acts of a constitutional nature
The constitution amendment act- attempts to fix 750 (the one where Quebec loses its veto)
Attempt to fix 750- says Ontario, Quebec, BC have a veto

Formula
1. ON, QC, BC
2. 2 Atlantic provinces with more than 50 % of the region's population
3. 2 Prairie provinces with more than 50 %of the region's population (Defacto AB veto )

says Ontario, Quebec, BC have a vet
Atlantic prov with mor than 50 per cent of the regions pop
Prairie provinces with more than 50 percent of the pop
Gives a Defacto veto back to Quebec (even though not explicitly said)
We don’t use it because we don’t talk about the constitution
Never used this formula
CAN has a rigid constitution- we cannot really fix it
Several section 43 changes

KEY POINTS

A constitution is the fundamental rules by which a country is governed
Canada’s constitution is made up of written, unwritten, entrenched and unentrenched, formal and informal components
Very complex set of documents
Canada could not, on its own, change its Constitution until 1982; it now has 5 entrenched amending formulas
The constitutional veto act NOT entrenched (68,72) because he can still change it, it is normal law,
The Canadian constitution is rigid and quite difficult to change
Because we as Canadians are difficult

****5 Amending formulas involved*** In 1982

*** make chart of the constitution****