1.

Canada Act, 1982

Terminated UK’s powers to legislate for Canada

 enacted the Constitution Act, 1982 which:

is equally authoritative in its French and English versions

Pt I: Charter of R& F; Pt II: Aboriginal Rights; Pt IV: Amending Procedure

 in its schedule renamed the British North America Act as the Constitution Act, 1867

Constitution Act, 1867

Pt II: Unites the provinces; Pt III: Executive Power; Pt IV: Legislative Power (est Houses, Senate); Pt V:
Provincial Constitutions, Legislatures; Pt VI: Distribution of Powers (s91- residual and enum – Federal;
s92 – enum – Provincial); Pt VII: Judicature

Charter – By entrenchment became alterable, only by amendment to the Constitution.

Bill of Rights 1960 vs. Charter of R&F 1982

only applies to Federal Laws entrenched

not entrenched (ie repealable) applies to both Federal & Provincial laws

What does “the Constitution” include?  s52.2 Constitution Act 1982: the Canada Act, Cont Act 1982,
and any amendments, and Acts referred to in its schedule. NB “include” menas the definition is not
exhaustive, ie can be expanded to include other things (NB Broadcasting Co v Nova Scotia (1993)) .

Supremacy Clause: s 52(1) any law inconsistent with Const = of no effect to extent of inconsistency

Entrenchment Clause: 52(3) special amending procedures are required to make any changes

Parliamentary Privilege: what is necessary to Fedl houses of Parlt and Provl Legislatures to function as
legisl bodies. (eg. Power to exclude strangers form Chambers for freedom of speech in debate.)

- Must satisfy the Test of “Necessity”: eg Canada v Vaid failed test: excl and unreviewable jurisdiction
over all House employees (incl Chauffeur) not necessary for the House as a deliberative body.

S45: Power of each provincial legisl over the Constitution of the Prov.

“Unwritten” Principles of the Constitution: incl. Democracy, Federalism, Protection of Minorities,

Consitutionalism, Independence of the Judiciary (Secession Reference: If Province held referendum and
decided to secede  Fedl Gvt would be legally bound to enter negotiations to accomplish secession)
(also in Re Remuneration of Judges (1997): Judicial Independence made “constitutional”)
Prerogative Powers: Rules of Govt established by Convention. Courts cannot legally enforce, but can
acknowledge they exist. Eg. Appointing PM, issuing passports, creating Indian Reserves, and (Patriation
Reference:) obtaining consent of affected Provs to amend the Constitution.

-no remedy for breach but court’s declaration makes it “practically impossible” to ignore. Need to codify
to make enforceable.

NB: can only affect govt structure, not policy. (Public School Boards Assoc v Alberta [2000], Catholic
Teachers Assn v Ontario [2001]: Traditional autonomy enjoyed by public school boards (convention)
cannot restrict Govt policy, or Substance of a law (eg. One that interferes with that autonomy.)

-cp. “Usage”: Govt feels no obligation to follow but usually does so. Long time usage becomes “Custom”
2.

Amending Procedures : Found in Pt V Const Act 1982.

s38 “General”; s41 “Unanimity”; s43: “Some but not All (provs)”; these must conform to the
Charter. Also, s44 Amendments in rel to Houses of Parlt and Exec; s45 Provl Constitutional
Amendments

s38 “General” aka “7/50 Rule” – requires resolutions to be passed by: Senate + HofC + 7 of the 10
Provinces which have in total at least 50% of the population.

Use for: residual, when other procedures do not apply as well as those listed in s42.

NB no single prov has constitutionally entrenched veto

-39(1): must wait 1 year to proclaim (unless all have consented/dissented) (allows time to consider)

-39(2): expires in 3 years if required consent not achieved

Opting out: 38(3) applies to “any amendt that derogates from the legislative powers, proprietary rights
or any other rights or privileges of the legislature or government of a province”

-prov can pass resolution of dissent = amendt will not take effect in that province

-Must be done prior to proclamation

38(4): resolution of dissent can be revoked at any time, but 46(2): resolution of assent cannot be
revoked after proclamation

s40 compensates provs for opting out, for any transfer of Provl legislative powers to Fedl govt (in
relation to education or cultural matters only).

Regional Veto Statute: no amendt can be authorized unless it has first been considered by a majority of
the provinces that includes: Ont, Que, BC, 2+ Atlantic Provs rep min 50% pop, 2+ Prairie Provs rep min
50% pop. Applies to amendments that: do not allow for opting out, and must otherwise follow the
general 7/50 procedure. Does not apply to : s41(unanimity) or s43 (some but not all) amendments.

S41 “Unanimity Rule” – used for matters of national significance which should not be altered over the
objection of even one province. NB s39 time limits do not apply.

S43 “Some but not all” Provision – used for language usage within a province, altering provl
bopundaries. Note: protection of minorities is afforded by the fact that it also requires resolutions of the
Senate and HofC (ie Fedl level approval) as well as the affected provinces Hogan v Newfdlnd (2000).

S45 Provl Legisl Alone – laws amending constitution of prov (ie those that bear “on the operation of an
organ of govt of the province” –SCC). Note does not include: Constl guarantee of language rights (per
SCC in AG Quebec v Blaikie, now explicit in s45). Also: OPSEU v Ontario [1987]: Profound constitl
upheaval by the introduction of political institutions foreign to and incompatible with the Canadian
System.

Future Amendments

French Canadian Nationalism: 1982 amendments reduced power of Que Natl Assembly, Que was only
prov that did not agree with them. Meech Lake Accord 1987 – to appease Que, but fell short of
ratification by 2 provs. Charlottetown Accord 1992 rejected in National Referendum. Quebec then held
2nd ref 1995. Defeated by only 49.4% – 50.6%.

Western Regionalism: Bulk of Canada’s pop is in Que + On. So Fedl policies favour manuf industry and
consumers of central Can. West relies on prod of wood, oil, gas, metals. Response: 1. to increase Provl
govt power which the West can more easily control and decr Fedl power (per 1982 amendments), and 2.
Make central institutions more responsive to regional concerns.

Aboriginbal Peoples Demands: entrenchment of traditional rights. S35: guarantees existing aboriginal
and treaty rights. S37 commits to further discussions. They also seek: entrenchment of explicit right t
self govt, and to participate in constl amendmt process where aboriginal rights may be affected.
(Charlottetown Accord would have done so but was defeated).

Entrenchment of Charter Rights: note override provision was inserted to obtain agreement. Note also
Quebec never agreed with the Charter yet still legally binding on the province.

Division of Powers: Reducing Fedl and incr Provl power easiest way to address French Candian and
Western Canadian grievances. 1982 amendmts incr provl power over natural resources. On the other
hand: Enlargement of certain Fedl powers may facilitate effective national economic policies, Fedl power
is lacking or only avail in emergencies with respect to: foreign ownership, securities regulation, wage
and price controls. Another issue is extent to which Provs differ in size and wealth. Changes in division of
powers very diffic to achieve.

Central Institutions: “Intrastate Federalism” = constl change though better representation so Fedl
power can be increased. “Interstate Federalism”= decentralisation of powers. Suggestion: have triple E
Senate (ie equal no. of reps from each prov). Within SCC would require Provl role in appointing judges.

Criticism of amending procedures: Problematic to retain agreement throughout 1 yr ratification period.

Proposals lapse in3 year period, or are defeated by changes in govt during that time – too long.
Agreement bw Ministers turns into bargaining rather than rue assessment on merits of proposal..

Secession: It has not been stated by the judiciary or by statute but no provision in the Const allows for
secession –unilateral secession not possible. Re Secession of Quebec [1998]: Court asked whether
Quebec could secede unilaterally. Secession cannot be undertaken in defiance of terms of the
Constitution. So secession would require const’l amendmt in accordance with its procedures (but did
not specify which one would apply). Note SCC also stated: a clear majority on a clear question of law put
to referendum in Quebec, would confer legitimacy on demands for secession and give rise to an
obligation on all parties to Confederation to negotiate the required constitl changes. SCC also pointed
out that the political ramifications for failure to negotiate in good faith would include the defaulting
govt’s legitimacy in the eyes of the international community would be undermined. ...  Principle of
Effectiveness: If seceding govt achieved effective control of a territory and recognition by international
commty the secession although unconstitutional would have to be recognized eventually as a reality by
Canada’s own Constl Law.

Which amending procedure would apply to secession? Unclear. But not: 43, 44, o 45.

Perhaps 38: covers those amendments not covered by the other procedures. Or 41: most onerous.

3.
 The powers of the Provl Legislatures are not granted by Parlt and cannot be taken, altered, or
controlled by Parlt.

Provs not legally subordinate to Fedl Govt but if conflict bw Fedl law and Provl law, Fedl Law prevails.

With the growth of Central Power the question whether a state is truly still “federal” depends upon:
whether there is still “an area of guaranteed autonomy for each unit of the system”.

The “Federal Principle”: Dividing powers so that the general and regional govts are each within a sphere
coordinate and independent.

Senate: equally drawn from regions:

Quebec, Ontario, Western Provinces, Maritimes 24 Senators each

Newfld  6 Senators

Yukon, NW Territories, Nunavut  1 Senator each

SCC : also by region – 3 of the 9 judges from Quebec, 3 from Ontario, 2 from the four Western provs
and 1 from the four Atlantic provs

Regional Veto statue- incorporates regions into the 7-50 formula ( ordinary statue not a constitutional
amendment). It prevents an minister of the crown introducing any resolution authorizing An
Amendments in the the house of commons without prior consent of the legislatures of: a) Ontario b)
Qube c) BC d) 2 or more of the Atlantic provinces( min 50% of the population) e) two or more of the
parie provinces with(min 50% of the population)

Hogg- the regional veto statue gives indirect vetos to the four most populous provinces to BC, ONT,
QUE and BC and this compromises the equality of the provinces envisioned in the 7-50 formula.

Subsidiarity- a principle of social organizing where decision affecting individuals should as far as possible
be made by the level of government made closest to them.

Hogg- a primary goal of confederation was to preserve considerable autonomy for the four original
provinces. As a result , BNA Act 1867 gave provincial legislatures authority over property, common civil
rights, common courts, police, municipal bodies, hospitals and education = subsidiarity principle

 Another goal of confederation was to provide collective benefits of economic union and greater
financial strength and increase defence. As a reset the BNA act 1867 gave federal Parliament
authority over customs and excise, interprovincial and international trade and commerce,
banking and currency, all forms of taxation and national defence. All consistent with subsidarity
principle.

(Not consistent with subsidarity principle)- authority over criminal law, penitentiaries, marriage and
divorce
 Laws that impact people the most directly are mostly provincial.