Week 1 - Intro Flashcards
Describe the events of the federal union
•At Confederation in July 1867, it was agreed that federalism was the most practical form of government, to bring together the existing colonies of British North America
•Canada was too large a country, with a scattered, sparse population, for a unitary state with a single, national government o be feasible.
•Also, the existing colonial societies in British North America would not consent to be swallowed up into a new country controlled by a central government
How did the constitution form
•Canada’s constitution was created with the passage of the British North America Act of 1867 by British Parliament.
•Resolutions were debated and voted on in both houses of the colony of Canada’s legislature
What were the steps to Canadian sovereignty
➢British appointments of Governors General with power to reserve legislation (until 1926)
➢British Parliament could disallow Canadian legislation (until 1926)
➢British Judicial Committee of the Privy Council (JCPC) highest court of appeal (until 1949)
➢Foreign and trade policy set by Britain (until 1931)
➢Amendments of BNA Act by British Parliament (until 198
What is the crown and its role
•The King of Canada is Canada’s head of state
•Power is exercised by the Governor General or the Lieutenants Governor at the provincial level
•Power to: dissolve Parliament and call elections; call on parties to form government; grant royal assent to bills
•Symbolic
What is the privy council and the cabinet
•Crown’s power is wielded by members of the Privy Council
•And more specifically current members of Cabinet led by the Prime Minister
•Actions taken by the Governor General on behalf of the Queen/King are done on advice of the Prime Minister
What is responsible government and its duties
•Prime Minister and Cabinet are drawn from the legislature and must maintain the confidence of the House of Commons, known as Responsible Government
•Confidence can be lost on motions of non-confidence or government defeats on important legislation (e.g., throne speech, budget)
•Pre-Confederation colonies operated by this principle – taken as given and was not written down
•If the government hold a majority of seats, confidence is effectively automatic
•This is because of party unity. Parliamentarians almost always vote with their party either 1) because they agree with it (party cohesion) or 2) because they are forced to (party discipline)
•In times of minority government, things become a little more interesting
What is the principle of judicial independence
•Adhere to principle of judicial independence: judges are to make decisions free of interference by other branches of government
•This is based on constitutional convention and statute law, rather than stemming from enumerated powers
Define constitution
A constitution is a fundamental or overarching law in a political system.
All other laws must conform to the constitution in how they are made and in their substance.
What is the function of the constitution
Constitutions set the terms of the relationship between:
1)Citizens and the state
2)Different branches within the state (i.e., executive, legislative)
3)Different levels of government (federal states only)
What is constitutional form
- constitutional laws are:
- constitutional conventions are:
A lot of our constitutional order is …?
•Constitutions can be written or unwritten, or some combination.
•A lot of our constitution is unwritten and implicit based on this passage:
“Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion….with a Constitution similar in Principle to that of the United Kingdom”
•Written components to the constitution are known as constitutional laws – these are enforceable by the courts
•Unwritten components to the constitution are known as constitutional conventions – these are not enforceable by the courts
•A lot of our constitutional order is unenforceable by the courts, including methods of selecting the Prime Minister
List the 5 components of the Canadian constitution
1.Constitution Act, 1867: originally the BNA Act, contains the division of powers and outlines the basic machinery of government (to some degree)
2.Amendments to the Constitution Act, 1867: formal amendments prior to 1982
3.British Statutes and Orders in Council: most important, PEI and BC Terms of Union, and addition of Rupert’s Land
4.Organic Canadian Statues: passed by Parliament with quasi-constitutional status; important examples:
➢Supreme Court Act
➢Manitoba Act of 1970; Alberta and Saskatchewan Acts of 1905
➢Indian Act, Canada Elections Act, Canadian Human Rights Act, etc
5.Constitution Act, 1982: last amendment to the 1867 Constitution Act to be passed by the British Parliament
Describe the events of amending the constitution (pre-1982)
•One of the most important features of any constitution are constitutional amendments.
•The original British North America Act had no mechanism to alter the division of powers between the federal government and the provinces.
•Canada could make a request to the UK to amend the BNA Act, but it was unclear who would need to agree for this to occur.
•Patriation facilitated by a 1981 reference decision: constitutional amendable by Canada with no British role.
•SCC ruled it was a constitutional convention for Ottawa to request an amendment to the BNA Act with substantial consent of the provinces, but not necessarily unanimity.
•Trudeau secured support of 9 of 10 of the premiers
How did patriation transform the Canadian constitution
Patriation transformed Canada’s constitution (Constitution Act, 1982):
•BNA Act -> Constitution Act, 1867
•Recognition of rights of Indigenous peoples
•Charter of Rights and Freedoms
•Equalization
•Revised division of powers
•No longer subject to change by British Parliament
What did the meech lake accord demand (5)
Efforts to secure sign off from Quebec began with the Meech Lake Accord.
5 demands:
1)Recognition of Quebec as a distinct society
2)Control over immigration
3)Power to nominate justices
4)Opt-out of shared cost programs and reimbursement
5)A veto on changes to the amending formula
What were the 3 criticisms of the meech lake accord
A lot of criticism was leveled at the accord:
1)too much for Quebec
2)too little for other groups (e.g. Indigenous, women, minorities)
3)Created in a secretive and undemocratic manner
Ultimately the Accord failed because it was not ratified in Newfoundland and Manitoba
