Canadian Constitutions In 1867, the British North American Act, which forms the premise of Canada’s current Constitution, was passed, establishing the Dominion of Canada – a self-governing a part of the British people Empire. The Act joined the Provinces of Upper and Lower Canada, Nova Scotia, and New Brunswick together in one federal union. Other provinces would later join the Dominion. The federal legislature was given the power to legislate on all matters not explicitly assigned to the provincial legislatures. The Act also gave the central the correct to disallow any provincial act within two years of its passage. The provinces might levy direct taxation only, whereas the dominion might use any mode of taxation. The Act thus provided for a comparatively centralized federation. The British North America Act was an Act of British people Parliament, and comprised no amendment formula by which the Canadian governments could amend it; amendments, therefore, had to be requested of Westminster. Such requests from the Canadian Parliament were nearly always honored, and these amendments are known along with the first Act because of the British North America Acts (BNAA) 1867 – 1975.
The Act also gave Britain the proper to disallow acts of the Canadian Parliament. variety of bills were vetoed during this way within the first decade – often with the justification that they were outside the ability of the Canadian parliament – but this quickly declined, and stopped after 1880. Meanwhile, within the judicature, cases could still be appealed to the Judicial Committee of the council in London, one among Britain’s highest courts. This allowed the Provinces to contest any law they saw as breaching the constitution’s federal-provincial division of powers before a court-appointed independently of Canada’s national, which appointed all other courts. The council applied a stricter interpretation of the powers of the centralized than Canadian courts, and also the abolition of appeals to the council in 1933 (for criminal cases) 1949 (for civil cases) undercut the position of the Provinces. On December 11, 1931, after decades of negotiations between Britain and also the Dominion, the British Parliament passed the Statute of Westminster, which put the Dominions on equal footing with British people parliament.
This put into effect the Balfour declaration of 1926, which affirmed that every dominion was both adequate the UK and independent of it, formalizing a state of affairs that largely already existed in practice. The Statute marked the start of full legislative independence for the Dominions, with British people government renouncing its power to disallow Dominion bills or to legislate for any dominion without its consent. Furthermore, it caused the legal division of the Imperial Crown into a definite Crown for every Dominion, separating the King’s role as monarch of Canada from his role as British monarch. Patriating the Constitution Despite the passage of the Statute of Westminster,
The Canadian Constitutions (the BNAA) remained a British Act of Parliament, and although it had been amended by British people Parliament to permit many parts of it to be amended by the Canadian Parliament, most provisions could still only be amended by nation Parliament. Although Canada could have patriated the constitution in 1931, the federal and provincial governments couldn’t create an acceptable amending formula. In 1960, the centralized passed the Canadian Bill of Rights, which failed to constitute a part of the BNAA. The Bill of Rights held equal footing with the other federal law and only applied to the federal, addressing fundamental freedoms, legal rights, and equality before the law. This bill wasn’t entrenched, but given that no subsequent law would be interpreted to infringe the rights enumerated in it unless this was explicitly stated. The relatively weak protection offered by the law helped fuel the movement for a more Canadian constitution.
A constitutional conference held in 1971 in Victoria produced the Victoria Charter, a proposal for patriating the constitution, but the provinces did not confirm their acceptance of the Charter. Similar efforts failed in 1975 and 1976. In the 1960s and ’70s, a movement for independence gained traction in Quebec. The question of Quebec’s independence spurred a brand new constitutional question in Canada. In 1980, the Quebecois government has drawn up a referendum on “sovereignty-association.” During the referendum, Prime Minister Pierre Trudeau promised the Quebecois the renewed federalism they wanted. On May 20, 1980, the referendum for a sovereign Quebec failed by a 59.56 percent to 40.44 percent margin. Upon the referendum’s failure, Prime Minister Trudeau called a primary Ministers’ Conference from September 8-13, 1980, to debate charter of rights, patriation, and amending formula and powers over the economy. When the ministers couldn’t come to an agreement, the center indicated that it might patriate unilaterally by taking the case on to the British people Parliament.
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The Supreme Court upheld the government’s declaration, and a second First Ministers’ Conference was held from November 2-5, 1981. At this conference, an agreement was struck between the centralized and most provincial governments, with the many exceptions of Quebec. In 1980, a Special Joint Committee of the House of Commons and therefore the Senate was founded to listen to submissions from the general public on amending the constitution. The twenty-five member committee included ten members from the Senate and fifteen from the House of Commons. there have been fifteen Liberals, eight Progressive Conservatives, and two New political party members. The constitution process was to last thirty days but extended to 3 months.
The committee listened to over 300 presentations from women, Aboriginal people, people with disabilities, ethnic and cultural minorities, and others. Presentations to the committee were televised to make a more transparent process. The committee also considered 1200 written submissions about the Charter. After consideration of all the presentations and submissions, the committee made 123 recommendations to enhance the Charter – over half are within the final document. With the govt and a majority of the premiers in agreement, the Canada Act 1982 was formally recognized by the governments of the UK And Canada on March 29, 1982. The Act created an amending formula for the constitution and eliminated the country Parliament’s amendment power. 1982 Constitution It took quite fifty years after gaining legislative independence for Canada to finally patriate its constitution in 1982.
The Parliament of Canada and, therefore, the provincial legislatures can now amend the constitution through a group formula: some provisions could also be amended by the federal Parliament, others require the extra approval of two-thirds of the Provinces collectively amounting to a majority of the population, while others require the extra approval of all the Provinces (amendments affecting just one province only require the approval of that province). The Canada Act 1982 codified and affirmed many common-law rights into the Charter of Rights and Freedoms. The Charter was greatly inspired by the opposite documents like the 1948 UN Universal Declaration of Human Rights. However, the Act also encompasses a notwithstanding clause which allows the provinces to override certain provisions within the Charter.
This clause was important in getting support from the provinces. The Act also recognized the treaty rights of the aboriginals and codified equalization. instead of being a completely new constitution, the 1982 act is an amendment of the 1867 BNA (renamed ‘Constitution Act, 1867’), and keeps the identical governmental structure in situ. Executive The executive authority is formally vested within the Queen and exercised by the Governor-General. He or she appoints the govt, grants assent to laws, dissolves and prorogues Parliament, and ceremonially performs many other roles, but is truly a figurehead, acting almost exclusively on the recommendation of the govt. The governor is appointed by the Queen for an unspecified term (usually five years) on the recommendation of the Prime Minister. The Governor-General has the ability to dissolve and prorogue (meaning suspend) parliament with the sole restriction being that parliament must meet a minimum of once a year. Exercise of those prerogatives, especially prorogation, on the recommendation of prime ministers, has attracted significant controversy in recent years. Canada encompasses a parliamentary system. the govt. is responsible to the House of Commons. the govt. is created through the appointment of the Prime Minister by the Governor-General and appointment of the opposite ministers on the Prime Minister’s advice.
The Prime Minister is that the head of the cupboard and guides and controls the policies of the govt. If one party encompasses a majority, its leader is appointed as Prime Minister; when no party has held a majority, the leader of the most important party has nearly always been appointed as Prime Minister, while the Governor-General formally retains the discretion to appoint another, and will, in theory, be compelled to try to so if a coalition of smaller parties was formed commanding a majority, although this possibility has been controversial. Ministers must be members of 1 of either house of parliament. The subdivision Parliament formally consists of the Queen, the Senate, and also the House of Commons. The Senate consists of 105 Senators, who are appointed by the Governor-General on the recommendation of the Prime Minister to serve until the mandatory retirement age of 75. Senators must be a minimum of thirty years old, a natural-born or naturalized subject of the Queen, have real or private property worth $4,000 over his debt, and own property within the division of appointment. Though effectively appointed by the national, Senators are appointed to represent the Provinces.
The country is split into four divisions, each represented by twenty-four Senators:
(iii) The Maritimes (Nova Scotia, New Brunswick, Prince Edward Island)
(iv) The Western Provinces (Manitoba, British Columbia, Saskatchewan, and Alberta – with six each). Newfoundland d does n’t belong to any division, and is entitled to 6 Senators; the territory, the Northwest Territories, and Nunavut are entitled to 1 each. Though Prime Ministers from time to time appoint Senators from opposition parties, they have an inclination to appoint them from their own party, and therefore the longer a celebration holds government the more the Senate is stuffed with members from its ranks. When there’s a vacancy, there’s nothing to compel the immediate appointment of a replacement, and then many seats may fall vacant for long periods of your time. The House of Commons currently consists of 338 members directly elected from single-seat districts by first-past-the-post. Seats are apportioned largely in proportion to the population of every province or territory, but with constitutionally-protected exception clauses which guarantee each province variety of seats no not up to its number of Senator s and no not up to it had in 1985. this offers the smaller provinces the next rate of representation compared to their population.
Current legislation provides for a four-year term, but the Governor-General can still dissolve Parliament and call new elections on the recommendation of the Prime Minister. The federal parliament can pass laws on any subject not reserved for the provincial governments. Financial bills must originate within the House of Commons – besides this limitation, the homes are formally equal with regards to legislative authority. In practice, however, because of the Senate’s lack of popular legitimacy and therefore the undeniable fact that the govt tends to own a Senate majority, it always acts in deference to the choices of the lower house. this can be not always the case, however; within the1980, the Progressive party, led by Brian Mulroney, came into government after a protracted series of Liberal governments had made many appointments to the chamber, which, as a result, was dominated by the party. Despite their lack of popular legitimacy, Liberal Senate leaders challenged a variety of the government’s key legislative proposals. the sole formal constitutional recourse the govt has in such a situation is to request the appointments of 4 or eight additional members (over the regular numbers as specified above), and this power was invoked by the Mulroney government, though this proves the controversy The Judiciary
The highest court in Canada is the Supreme Court, which consists of nine justices. The Court was not established by the Canadian constitution but created by a separate Act. To be appointed a judge, a person must have been the judge of a superior court of a province or a barrister or advocate for at least ten years standing at the bar of a province. At least three of the judges must be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province. All judges serve until the age of seventy-five.
New constitutional developments and challenges
One issue seen as a significant constitutional challenge is the position and powers of the Governor-General as the Head of State. The Governor-General possesses extensive powers. However, as the position is effectively appointed by the Prime Minister and lacks democratic legitimacy, the Governor-General always follows the Prime Minister’s advice, leading to what some see as abuse of the office’s prerogative powers by the government. For example, in 2008, the Governor-General prorogued Parliament at Prime Minister Harper’s request just ahead of a non-confidence vote the latter seemed sure to lose as the other three parties had joined together to form a coalition that could replace the Conservative minority government. The prorogation was controversial and drew large demonstrations against it and in favor of the coalition; but by the time parliament assembled again in early 2009 the coalition had fallen apart, with the Liberal party (after having had a change in leadership and being offered many concessions by the government) voting to allow Harper’s Conservative government to continue in office. Many would prefer clear restrictions on the government’s use of such powers written into the constitution; there were renewed protests when Parliament was prorogued in 2010. Another constitutional issue related to the fact that the Governor-General is the monarchy itself, which is seen by some as not wholly representative of the people.
Another challenge is the position of the Senate, which also lacks democratic legitimacy and a number of whose members have recently become embroiled in corruption scandals, which drew particular attention to its lack of accountability. Many have supported the idea of making the Senate an elected body, often combined with the idea of electing an equal number of Senators from each Province to counterbalance the weight of the most populous provinces of Ontario and Quebec. Two failed constitutional reform projects, the Meech Lake Accord in 1989 and Charlottetown Accord in 1992, which sought to amend various aspects of the Constitution through an agreement between federal and provincial governments, included Senate reform proposals, though they would also have drastically reduced the chamber’s power. In 2013, the Conservative Harper government, eschewing a renewed failure to achieve constitutional reform project through the difficult procedure of securing the consent of Provincial governments, submitted a number of reference questions to the Supreme Court seeking clarity regarding which reforms it could enact on its own, including the idea of holding advisory elections to nominate Senators to the Governor-General. The Court advised that such a scheme would not be constitutional and that the federal Parliament only had the authority to make minor reforms such as removing the Senate’s property-ownership requirement; more fundamental reforms of the Senate’s membership and powers would require the consent of the provincial legislatures. In 2015, the incoming Liberal government announced the formation of an advisory committee that will recommend appointments to Senate based on merit rather than partisan considerations. However, without an amendment to the Constitution, these recommendations will remain non-binding and the Prime Minister will make the final decisions.
Another issue the Meech Lake and Charlottetown Accords attempted to resolve was the refusal of Quebec to sign on to the Constitution in 1982. Many Quebecois also desire constitutional recognition of Quebec’s status as a nation within Canada, as well as other concessions that would grant Quebec special status or autonomy. Quebec’s own status as part of Canada has also continued to attract attention over the years, even after a second referendum was held in 1995, in which, with a 93% voter turnout, independence for Quebec was defeated by a slim 1%.