Constitution of Canada

History &endash; Why?

a)Canadian Constitution is complicated

b) Not a single document

c) Not like the US Constitution

d) Marked by continuity

e) Composed of a variety of Sources

Recall: what does a Constitution do?

a) Distribution of power among organs of the state

b) Distribution of federal/regional powers

c) Civil liberties

d) Enshrine national values

Most important constitutional documents:

a) Constitution Act, 1867

b) Canada Act, 1982

c) Constitution Act, 1982

But also:

a) Royal Proclamation, 1763

b) Quebec Act, 1774

c) Constitutional Act, 1791

d) Union Act 1840

Probably the most important date in Canadian Constitutional History:

September 13, 1759

New France ceded to Britain by Treaty of Paris, 1763

Royal Proclamation, 1763 does the following:

a) Defined territory of Quebec

b) Established English Law (criminal and civil)

c) made provision for the establishment of a legislative assembly (local parliament)

d) distributed land to soldiers

e) protected Native lands

Problems:

a) Not many English settlers

b) Catholics can't hold public office

c) French Canadians hate English Civil law

Quebec Act, 1774 does the following:

a) Expanded Quebec's borders (annoyed Americans, who aren't Americans yet)

b) Protected Catholic Religion

c) Restored French Civil Law (section 8)

d) Retained English Criminal Law (sec.11)

Constitutional Act, 1791

a) Created Upper and Lower Canada

b) Upper Canada (Ontario) &endash; English

c) Lower Canada (Quebec) &endash; French

Union Act, 1840

a) United Upper and Lower Canada

b) Attempt to assimilate French Canadians

c) But still retained French and English law distinctions

British North America Act, 1867 (Now renamed: Constitution Act, 1867)

a) Laid foundation for present day Canada

b) Brought together Quebec, Ontario, New Brunswick, Nova Scotia.

c) Made provision for other British Colonies and territories:

d) Manitoba, 1870; British Columbia, 1871; PEI, 1873; Alberta, 1905; Saskatchewan, 1905; Newfoundland, 1949

e) Primary importance: distribution of powers among organs of the state

f) More (much) on this next class

Canada Act 1982 (including Constitution Act 1982)

a) Repatriation of the Constitution

b) Charter of Rights and Freedoms

c) Amending Formula

Other sources of constitutional law:

a) Imperial Statutes

b) Canadian Statutes

c) Royal Prerogative

d) Conventions

e) Case Law

Imperial Statutes: laws passed by the British Parliament for Canada (e.g. Constitution Act, 1867)

Canadian Statutes: laws passed by Canadian Parliament, affecting constitutional matters (e.g. creation of the Supreme Court of Canada in 1875)

Royal Prerogative: residue of arbitrary power exercised by the Crown.

Conventions: customary constitutional rules which:

1) cannot be enforced by the courts

2) prescribe the way in which legal powers can be exercised

3) transfer effective power from the legal holder to another official.

Case Law: decisions made by the courts which interpret constitutional law