Canadian Constitutional Law Summaries

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.