The Patriation Flashcards
Who was the leader of Le Parti Quebecois during the 1980 Referendum?
-1976 Rene Levesque
-“sovereignty-association” movement
What happened if people voted yes on the Referendum?
Quebec separates from Canada
What happened if people voted no on the Referendum?
Maintain Canadian unity, Quebec won’t separate.
What were the voting results of the 1980 Referendum?
40% yes, 60% no
QC did not separate
Which provinces were a part of the “Gang of Eight”?
QC, AB, MB, PEI, NFL, BC, SK, NS
What were the “Gang of Eights Reasons for being against patriating the constitution?
QC: “Traditional demands”, “society distincte”
Everyone else: wanted more decentralization
All feared a charter of rights would lead to judges being able to strike down legislature created by elected actors
Compact mythical theory #1
-Canada as a pact between 2 equal founding peoples
-popular in QC
-belief that each equal party has a veto
-QC a founding people, has veto rights
Compact mythical theory #2
-Canada as a pact between British colonies
-many British colonies formed Canada and became provinces
-every province has a veto
Imperial Statute Mythical Theory
-Canada is a law voted on by Westminster parliament
-London is the only one with a veto
Who believed in compact theory 1?
QC
Who believed in compact theory 2?
The gang of eight
Who believed in the imperial statute theory?
Ottawa, Ontario, New Brunswick
Judicial review: can the federal government proceed unilaterally?
MB court of appeal: yes
QC court of appeal: yes
NFL court of appeal: no
SCC: Yes but conventionally would require much consent
What happened leading up to the night of the long knives?
Day 1: nothing achieved, gang of eight stayed together
Day 2: pressure to compromise, no success
Day 3: Sterling Lyon goes back to MB for byelections
How to break up the gang of eight?
1/2 or 2/3 of the provinces agreeing to the patriation would be seen as a substantial degree of consent
Feds goal is to get the consent
The “Kitchen Accord”
In between day 3 and day 4
Jean Chretien, ON and SK met in the kitchen at night
Introduced the notwithstanding clause
Chretien called/met with other premiers except Rene Levesque (couldn’t get ahold of him)
Why did Levesque feel betrayed?
Gang of eight except QC agreed to the compromise, he didn’t know about it. Informed on day 4
Parliamentary Supremacy
-In their respective spheres of jurisdiction, each order of government (parliament or provincial legislatures) is sovereign to adopt any bill
-No other institution can declare laws unconstitutional
-British tradition, they don’t have a constitutional text
Constitutional Supremacy
“The constitution of Canada is the Supreme law of Canada”
-if legislature enacts a law that violates the charter, a court can strike it down
-gang of eight feared this would limit provincial legislatures
Judicialization of politics
The reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies
-judges can overule decisions made by elected officials
-democratic deficit?
The notwithstanding clause
Function is to prevent a person from bringing an action in court claiming the law violates a fundamental freedom
-protects a new law, valid for 5 years
-comes with a political cost
The theory of constitutional dialogue
-Courts advise legislative branch to revise
-Legislative branch responds accordingly
-enforces compliance with the charter
