Category Archives: Constitutional Law

Legal System

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Legal System of Canada

The Canadian Judicial System

The Canadian Judicial System recived an analysis here.

Organization of Courts

The courts in Canada are organized in a four-tiered structure. The Supreme Court of Canada sits at the apex of the structure and, consistent with its role as “a General Court of Appeal for Canada”, hears appeals from both the federal court system, headed by the Federal Court of Appeal and the provincial court systems, headed in each province by that province’s Court of Appeal. In contrast to its counterpart in the United States, therefore, the Supreme Court of Canada functions as a national, and not merely federal, court of last resort.

The next tier down from the Supreme Court of Canada consists of the Federal Court of Appeal and the various provincial courts of appeal. Two of these latter courts, it should be noted, also function as the courts of appeal for the three federal territories in northern Canada, the Yukon Territory, the Northwest Territories, and the Nunavut Territory.

The next tier down consists of the Federal Court, the Tax Court of Canada and the provincial and territorial superior courts of general jurisdiction. These latter courts can fairly be described as the lynchpin of the Canadian judicial system since, reflecting the role of their English counterparts, on which they were modelled, they are the only courts in the system with inherent jurisdiction in addition to jurisdiction granted by federal and provincial statutes.

At the bottom of the hierarchy are the courts typically described as provincial courts. These courts are generally divided within each province into various divisions defined by the subject matter of their respective jurisdictions; hence, one usually finds a Traffic Division, a Small Claims Division, a Family Division, a Criminal Division, and so on.

Court Locations

There are approximately 750 court locations in Canada. The Supreme Court of Canada sits only in Ottawa, although teleconferencing facilities to locations across the country are available. Hence it is possible for the parties to litigation before the Court to make their arguments in locations other than Ottawa, and to have those arguments transmitted to the Supreme Court of Canada via satellite. The other three federally established courts, the Federal Court of Appeal, the Federal Court and the Tax Court of Canada, altogether have offices at seventeen permanent locations. The provincial and territorial courts sit at over 700 locations. These include fifteen permanent provincial and territorial appellate court sitting locations – one in each province and territory except for Quebec and Alberta, which have two each.

The Supreme Court of Canada

The Supreme Court of Canada was constituted in 1875 by an act of Parliament and is now governed by the Supreme Court Act. It is comprised of a Chief Justice and eight puisne judges (puisne meaning ranked after), all appointed by the Governor-in-Council for terms of “good behaviour”, with a minimum of three judges coming from Quebec. Supreme Court judges must live within forty kilometres of the National Capital Region.

Federal Courts
The Federal Court of Appeal and the Federal Court have a long history. Since 2003, they are the successors of the appeal and trial divisions of the Federal Court of Canada, which in 1971 succeeded the Exchequer Court of Canada which itself was created in 1875 and had jurisdiction only over revenue, the Crown in Right of Canada as litigant, industrial and intellectual property, admiralty and a few other subject matters regulated by federal legislation. The Federal Court was given jurisdiction over these matters, but in addition was given the power of judicial review with respect to decisions of federal administrative tribunals and jurisdiction over claims with respect to several other matters falling within federal legislative jurisdiction, including inter-provincial transportation and communication undertakings, bills of exchange and aeronautics. These latter grants of new jurisdiction have spawned a good deal of litigation regarding the nature and scope of the federal government’s authority to grant jurisdiction to courts of its own making. Generally speaking, the Supreme Court of Canada has interpreted that power narrowly, with the result that the Federal Courts now exercise jurisdiction over a somewhat narrower range of disputes than was initially intended.

Tax Court of Canada

The Tax Court of Canada was established in 1983 and has as its primary responsibility, the hearing of appeals in the area of income tax. Its predecessor, the Tax Review Board, was an administrative tribunal.

Provincial and Territorial Superior Courts

The superior courts of each province and territory include both a court of general trial jurisdiction and a provincial court of appeal. A significant feature of these courts insofar as their jurisdiction is concerned is that that jurisdiction is not limited to matters over which the provincial governments have legislative jurisdiction. In this respect, they are very different from the state courts in the United States. Hence these courts have jurisdiction over disputes arising in many of the areas over which the federal government is granted legislative jurisdiction in the Constitution Act, 1867 – for example, criminal law and banking. Moreover, the power to decide disputes in such areas does not have to be explicitly assigned to these courts by the federal government in order for these courts to have jurisdiction over them. Hence, if federal legislation calls for the exercise at some point of judicial authority, but says nothing about which body is to exercise that authority, it is assumed that that authority will reside with these courts.

As noted above, therefore, these courts can fairly be described as the lynchpin of the Canadian judicial system.

Provincial and Territorial Courts

Although at the bottom of the hierarchy, these courts handle the overwhelming majority of cases that come into the Canadian court system. They deal with a broad range of criminal matters, much of the litigation in the area of family law, and all of the civil litigation in which the amount at issue is relatively small. If the average citizen has occasion to become involved in a dispute that requires adjudication on the part of a court, the likelihood is that he or she will appear before one of these courts.

Administrative Tribunals

Although not formally part of the Canadian judicial system, because they are not in a formal sense “courts”, administrative tribunals are an integral component of the system that has been created in Canada by government to resolve disputes. No description of the latter system would be complete without mention being made of these important bodies. Some areas – for example, labour relations (both in the unionized and in the non-unionized sectors of the economy) and individual claims of discrimination in areas like employment, housing and access to services and facilities customarily available to the public – are dealt with almost exclusively by them.

The Judiciary

All members of the judiciary in Canada, regardless of the court, are drawn from the legal profession. In the case of those judges appointed by the federal government, which includes the judges of all of the courts apart from those at the bottom of the hierarchy and described generally as provincial courts, are required by federal statute to have been a member of a provincial or territorial bar for at least ten years.

Judicial Committee of the Privy Council

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Judicial Committee of the Privy Council in Canada

Judicial Committee of the Privy Council and the Canadian Constitution

The Judicial Committee of the Privy Council was a statutory body established in 1833 by an act of the Parliament of Great Britain dispensing justice throughout the British Empire. It reports to its Majesty’s Council which gives effect to its recommendations by an Order in Council. It is unthinkable that the recommendation would not be followed.

The J.C.P.C. acted as Canada’s last Court of Appeal in constitutional matters until 1949. As a result, much of Canada’s constitutional jurisprudence has been established by this Court and it has been the center of much controversy over Canadian federalism. As Alan C. Cairns (in the “The Judicial Committee and its critics,” Canadian Journal of Political Science, 1971, pp. 301-345) has written: “The failure of Canadians to agree on a specific formula for constitutional amendment led many critics to place special responsibility for adjusting the B.N.A. Act on the Privy Council, and then to castigate it for not presiding wisely over the adaptation of Canadian federalism to conditions unforeseen in 1867.”

Fundamentally two sets of criticisms have been made of the general performance of the J.C.P.C. in interpreting Canada’s constitution: 1) The court would have misinterpreted the fundamental nature of the Constitution Act, 1867, particularly the Peace, Order and Good Government and Regulation of Trade and Commerce clauses; 2) The court, by interpreting the Constitution Act as an ordinary statute, would not have understood the full significance of its actions and would have failed to update the Constitution of Canada.

There is still much debate as to whether or not the contention of the first criticism is correct or not. At a minimum, the fact that there is still debate around the issue would indicate that the matter is not as simple as it first appears. A significant study by G.P. Browne (The Judicial Committee and the British North America Act) sustained that the Court was consistent in interpreting the Act and that a careful analysis of sections 91 and 92 would indicate that they were given a proper judicial interpretation. The second criticism can be termed, in many respects, dangerous and ambiguous. Either it was the duty of the Court to interpret the Constitution Act properly by reflecting the desires of the Fathers of Confederation as found in the statute, or else it was the responsibility of the court to keep the Constitution of Canada up to date and as a result, perhaps, depart from the original meaning of the document. It cannot be both at the same time. The second criticism is dangerous in the sense that it assigns to the Courts a role that our system of government (Supremacy of Parliament) should ascribe more properly that of the elected officials of the country or to the people. It is not, and should not be, the role of a court to reform the system to meet new circumstances. Rather, the courts should interpret, in so far as they can do so, the original intentions of the framers of the statute and leave to the Canadian people the task, through their representatives in Parliament or a referendum process, of making such changes as they see fit to make. It would be dangerous to assign the updating of the Constitution to the courts because as citizens we do not control the actions of judges. Constitutions should reflect the desires and aspirations of the people and only their representatives in Parliament can speak for the people and be controlled by the people. As Cairns has written: “The critics of the Judicial Committee were moved more by the passions of nationalism and desires for centralization than by federalism” (p. 339).

Broadly speaking the outcome of the decisions of the J.C.P.C. have been that 1) restrictive interpretations were given of federal powers leading to a strengthening of provincial powers and the establishment of a “truer” federalism; 2) sections 93 and 133 were interpreted in a restrictive way so that the judicial protection of minority rights has been held to a minimum.

© 2001 Claude Bélanger, Marianopolis College

Judicial Committee of the Privy Council (jcpc)

Definition of Judicial Committee of the Privy Council (jcpc) by Rand Dyck and Christopher Cochrane (in their book “Canadian Politics: Critical Approaches”) in the context of political science in Canada: A committee of the British Parliament that functioned as Canada’s final court of appeal until 1949.

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Constitution

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Constitution in Canada

Constitution of Canada

Constitution of Canada, group of written documents and unwritten conventions that outline the political and legal foundations of Canadian society. The constitution of Canada identifies the country’s political boundaries, describes fundamental rights guaranteed to Canadian citizens, and defines rules and procedures that guide the country’s political and legal systems. (1)

Currently, there are ten provinces and three territories within Canada. Establishing a new province would require Constitutional amendment. Once a province is established, per section 92 of the Constitution Act, 1867, a province has exclusive legislative authority. In contrast, territories only have that legislative authority given to them by Parliament, which may be limited.

Researching the Constitution of Canada

Canada’s Constitution can be found in Volume 4 of the Constitutions of the Countries of the World (ILS RR K3157 .A2 B58 1971). This volume contains a consolidation of the Constitution Acts of 1867 and 1982 as of April 1, 1999. As such, it takes into account the Constitution Act of 1999, Nuvanut. When Nuvanut became a new territory, the Constitution Act, 1867, Part 2, was amended to allow for an increase in Senators from 104 to 105, with the maximum number of senators being raised from 112 to 113, accordingly, and to allow for each of the three territories to have one representative each. Additionally, the Canada Department of Justice web site provides the text of the Constitution Acts of 1867 and 1982.

Note: We linked the resources to archive.org in an effort to decrease the number of broken links cited.

In this Section

  • Constitution
  • Constitution Origins
  • Constitution Major Elements
  • Constitution Documents
  • Constitution Act of 1867
  • Constitution Act of 1982
  • Constitution Conventions
  • Constitution Interpretation and Enforcement

Constitution

Definition of Constitution by Rand Dyck and Christopher Cochrane (in their book “Canadian Politics: Critical Approaches”) in the context of political science in Canada: The whole body of rules and principles according to which the state is governed that, in the Canadian case, consists of a conglomeration of documents and conventions.

Definition of Constitution

The Canada social science dictionary [1] provides the following meaning of Constitution: The set of arrangements by which a nation governs itself. In Canada the core of the constitution is the BNA Act and its amendments (now called the Constitution Act 1867) and the Constitution Act 1982. Most of what we take to be the constitution, however, is not contained in these documents: things like responsible government, political parties, cabinet, the bureaucracy are absent. Some of these matters are covered by laws like the Elections Act, the House of Commons Act, the Legislative Assembly Acts and the Public Service Acts . In Canada, constitutional convention, embodying political traditions and practices, is unusually important and Canada’s system of government cannot be understood simply from the written laws. For example, it is constitutional convention, but not law, that ministers must be members of the House of Commons or the Senate, or that the Governor General must appoint the leader of the largest party in the House of Commons as Prime Minister. It is appropriate to also include court judgments interpreting constitutional Acts and formal agreements between federal and provincial governments as parts of Canada’s constitutional arrangements.

Constitution: Resources

Notes and References

  1. Drislane, R., & Parkinson, G. (2016). (Concept of) Constitution. Online dictionary of the social sciences. Open University of Canada

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Notes and References

  1. Encarta Online Encyclopedia

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Citation Notes

The Canadian constitution is contained in both the Constitution Act 1982 (itself a schedule to a UK statute) and the Constitution Act 1867 (an imperial statute). The Canadian Charter of Rights and Freedoms is part I of the Constitution Act 1982.

Act of Union

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Act of Union (1841) in Canada

The Act of Union was by and large based on the ideas about assimilation put forward by Durham, who saw in the conflict a confrontation of two races and, in Francophone society, an atrophied cultural group that hobbled Canada’s expansion.

The Act of Union was passed by the Parliament in London on July 23, 1840, and came into force on February 10, 1841. It introduced numerous reforms. The two Canadas were to become one United Canada, with one government. This United Canada was to keep the institutions established by the Constitutional Act of 1791: a governor who was answerable to the British Parliament, an executive council appointed by the Crown, a legislative council of 24 members, appointed for life, and a house of assembly of 84 members, half to be elected by Canada East and the other half by Canada West . Officially, Canada East and Canada West simply replaced the names Lower Canada and Upper Canada. In practice, however, the former names did not die quickly.

The implementation of political union, which unified the economy as well, greatly pleased the Canadian business class. However, it only made the French Canadians angry, for several clauses of the constitution humiliated them. For example, Canada East, which had a larger population than Canada West, was allotted the same number of elected representatives — a breach of the principle of democracy. The civil list was raised to 75,000 pounds per year, and elected members no longer had any control over it. Also, section 41 of the Act of Union decreed that English was to be the only official language of the country. This was the first time that England had prohibited French in a constitutional text.

The objective pursued by England in the Act of Union was clear: hammer together a British-style parliamentary system with an artificial majority, while waiting for immigration to run its course and give the British a real majority. Such a system would in all likelihood adopt policies favourable to British colonization. So it was that French Canadians began their existence as a minority.

The measures of 1841 created deep wounds. In the Québec City region, petitions called for the abolition of the Act. Some people suggested withdrawal from political life. The reaction was so intense that, in 1848, London had to recognize and accept the use of French.

At that time, the great French-Canadian champion was Sir Louis-Hippolyte La Fontaine. During the rebellion, he had developed his political philosophy around the notion that political parties must be based on “opinions” instead of “origins.” He felt that social peace and prosperity would happen of their own accord once racial distinctions were rooted out of public administration and institutions were given freedom.

As a pragmatic politician who strongly denounced the discriminatory elements of the Union regime, he invited fellow French Canadians to get involved in political life. Without being aware of it, therefore, Sir Louis-Hippolyte La Fontaine was urging his compatriots to take the road that was to lead to Confederation.

Act of Union

Definition of Act of Union by Rand Dyck and Christopher Cochrane (in their book “Canadian Politics: Critical Approaches”) in the context of political science in Canada: The 1840 act that united the colonies of Upper and Lower Canada into the colony of Canada, partly designed to assimilate the French.

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Responsible Government

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Responsible Government in Canada

Canadian Parliament Responsible Government

One of the main tenets of the Canadian constitution is responsible government, or holding the government accountable to the people of Canada. Specifically, the prime minister and cabinet ministers are accountable to the House of Commons and must maintain the support of a majority of its members. Central to the concept of responsible government are the principles of ministerial responsibility. These principles were derived from the parliamentary experience of Britain and were adopted in Canada when the country was founded. There are two parts to the doctrine of ministerial responsibility: collective and individual. (1)

The Struggle for Responsible Government in Newfoundland

Documents which trace the evolution of Newfoundland from a British fishing station to a largely independent self-governing Dominion.

  • The Newfoundland Act of 1832: An Act of the British Parliament which continued in force several earlier Acts pertaining to Newfoundland, and provided for the appropriation and application of funds raised in the Colony.
  • Commission Appointing Sir Thomas Cochrane Governor, 1832
  • Instructions to Sir Thomas Cochrane, 1832
  • Royal Instructions to the Governor of Newfoundland, 1832
  • Proclamation defining Electoral Districts, 1832
  • The Newfoundland Act, 1842: Provided for an amalgamated Assembly with a combined membership of elected and appointed members.
  • The Newfoundland Act, 1846: The Newfoundland Act of 1842 was, by its Article VIII, to expire on September 1, 1846. This Act continued it in force until September 1, 1847.
  • The Newfoundland Act, 1847: The Newfoundland Act of 1842 was in force until September 1, 1847. By this Act it was allowed to expire, returning Newfoundland to its pre-1842 constitution. At the same time, Articles I, II, II, and IV of the 1842 Act, dealing with property and residency restrictions on membership in the Assembly, the appropriation of revenues, and simultaneous elections, were made permanent.
  • Instructions to Governor Darling, 1855: Established the principles of Responsible Government in Newfoundland, whereby the executive authority is responsible to the elected legislature.
  • Letters Patent, 1876: Made permanent the Office of Governor and Commander-in-Chief of Newfoundland “and its Dependencies.” Prior to this, the office was reconstituted with the Letters Patent appointing each successive Governor. The Letters Patent also make certain provisions relating to the Executive Council, the Legislative Council, the General Assembly, and the powers of the Governor.
  • Letters Patent, 1905: Modified the Letters Patent of 1876 to provide for the administration of the Government during the absence of the Governor.
  • Motion by A.P. Herbert, 1949: A motion circulated in the British House of Commons by Independent M.P. A.P. Herbert, who favoured restoration of Responsible Government to Newfoundland.
  • Proposed amendment to the Newfoundland Act, 1949: An amendment to the Newfoundland Act proposed by Independent M.P. A.P. Herbert, who had toured Newfoundland and Labrador as part of a delegation from the British House of Commons.
  • Proposed Newfoundland (Liberation) Act, 1949: A Private Member’s Bill drafted by Independent M.P. A.P. Herbert, who favoured restoration of Responsible Government to Newfoundland.

Responsible Government: History

Responsible Government, without ” Representation. by Population”

In recommending that responsible government should be brought into effect in the united province, Lord Durham expressly warned against any union of Upper and Lower Canada which should not be based on the principle of representation by population. “I am averse,” he said, “to every plan that has been proposed for giving an equal number of members to the two provinces, in order to attain the temporary end of out numbering the French, because I think the same object will be obtained without any violation of the principles of representation.” When Poulett Thomson, afterwards Lord Sydenham, was sent out to carry into effect Lord Durham’s recommendations, this warning was, however, ignored. The Act of Union of 1841 gave to each part of the united province an equal representation in the united legislature; and thus introduced into the government of the colony a dualism or quasi-federalism that ultimately brought about the breakdown of all government. Under these circumstances, the inauguration of responsible government in united Canada did not proceed under the best auspices. Sydenham, it is true, set up in Canada the machinery of responsible government. He transformed the old Executive Council, the members of which seldom sat in the Legislative Assembly, and sometimes not even in the Legislative Council, into a counterpart of the British cabinet, the members of which were not only (as a rule) heads of departments, but were also members of parliament. But, because he was unwilling to admit the rebellious majority in French Canada to a share in government, he was unwilling to admit the principle of responsible government. With him the Council was “a council to be consulted and no more.” He presided over the meetings of council, and in fact dominated it, so that he became virtually his own prime minister. His dexterity enabled him to preserve the unstable equilibrium of this position during his short period of office; but his system of government broke down under his successor Sir Charles Bagot. Bagot’s ill-health compelled him to absent himself frequently from the council board, so that the office of prime minister began to emerge; and in 1843 he was compelled to accept a ministry reflecting the majority in the Legislative Assembly, including a number of the rebels of 1837. The principle of responsible government had a brief set-back under Bagot’s successor, Sir Charles (afterwards, Lord) Metcalfe, who, like Sydenham, regarded the Council as a body “to be consulted, and no more,” and who, after a disagreement with his council, appealed to the country in 1845, and won a temporary triumph at the polls. But in 1848 there came out to Canada as governor-general Lord Elgin, the son-in-law of Lord Durham, who was resolved to put the principle of responsible government into full operation; and the triumph of this principle was achieved by Elgin’s admittance to office of the Baldwin-Lafontaine administration in 1848 and his assent to the Rebellion Losses Bill in 1849 [See the British reaction to the Bill]. In the other provinces of British North America , responsible government was introduced shortly after this.

The sphere in which responsible government operated was, however, at first circumscribed. Durham had recommended that it should be operative “except on points involving strictly imperial interests”; but these interests were deemed to be such important matters as crown lands, trade relations, defence, and foreign policy. It was not long before the crown lands were handed over to the Canadian parliament for administration; the control of the tariff, and hence of trade relations, was successfully asserted by the Canadian government in 1859; and most of the British troops in Canada were withdrawn in 1862. But the control of foreign policy was postponed for over half a century; and there were still in 1874 so many shackles on the will of the Canadian people that Edward Blake was able to describe them as “four millions of Britons who are not free.” The constitutional history of Canada since 1849 has, indeed, been the story of the way in which these shackles have been gradually struck off.

Source: W. Stewart WALLACE, “History, Constitutional”, in The Encyclopedia of Canada, Vol. 3, Toronto, University Associates of Canada, 1948, 396p., pp. 147-153.

More about the Canadian Parliament

Responsible Government

Definition of Responsible Government by Rand Dyck and Christopher Cochrane (in their book “Canadian Politics: Critical Approaches”) in the context of political science in Canada: A form of government in which the political executive must retain the confidence of the elected legislature or assembly and must resign or call an election if and when it is defeated on a vote of nonconfidence.

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Notes and References

  1. Encarta Online Encyclopedia

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Further Reading

  • Sir John G. Bourinot, A manual of the constitutional history of Canada (Toronto, 2nd. ed., 1901)
  • W., P. M. Kennedy, The constitution of Canada : An introduction to its development and law ( Oxford , 1922).
  • W. Houston, Documents illustrative of the Canadian constitution (Toronto, 1891)
  • H. E: Egerton and W. I. Grant, Canadian constitutional development (London , 1907)
  • W. P. M. Kennedy, Statutes, treaties, and documents of the Canadian constitution (Oxford, 1930)
  • A. Shortt and A. G. Doughty, Documents relating to the, constitutional history of Canada, 1759-1791 (2 vols., Ottawa, 191.8)
  • A. G. Doughty and D. A. McArthur, Documents relating to the constitutional history of Canada, 1791-1818 (Ottawa, 1914)
  • A. . G. Doughty and Norah Story, Documents relating to the constitutional history of Canada , 1819-1828 (Ottawa , 1935).

Meech Lake Accord

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Meech Lake Accord (1987) in Canada

Main Issues:

  • Really a general agreement containing 2 parts: An agreement between Canada and Québec to delegate total control of the reception and integration of any immigrants that settle in that province (This agreement was later finalized).
  • Expired after 3 years, on June 23, 1990. On that date, the House of Commons and eight of the ten provincial legislatures had ratified the accord. However, Aboriginal MLA Elijah Harper of the Manitoba legislature blocked a ratification vote in that province.
  • Newfoundland premier Clyde Wells, having reversed the previous Newfoundland government’s ratification saw this as an apparent defeat for the accord, and consequently refused to hold a ratification vote in his legislature.

The constitutional accord: Quebec had 5 demands that needed to be fulfilled before they could sign 1982 constitution, “with dignity and honour”:

  • A constitutional veto (meaning any one province could block any constitutional amendment).
  • The recognition that Québec is a ‘distinct society’.
  • The right to have Supreme Court Justices appointed from names on lists created by the province.
  • The limitation of the federal spending power, namely, the allowance for a province to withdraw from a national program to create its own program with federal funds.
  • Greater provincial control of immigration, by automatically constitutionalizing inter-governmental agreements relating to that.

Note: The New Brunswick Companion Resolution to the Meech Lake Accord was a last-ditch attempt to address the flaws in the Meech Lake accord (see below). Later, the Charlottetown Accord (1992), with the unofficial consensus report of August 28, 1992 and the draft legal texts, is virtually a rehash of the Meech Lake Accord.

The New Brunswick Companion Resolution to the Meech Lake Accord

Main Issues:

  • A last-ditch attempt to address the flaws in the Meech Lake accord: Extended to New Bruswick to some degree what was given to Quebec, with respect to the status of the English and French linguistic communities.
  • Added consideration from the territories of appointment of Judges to the Supreme Court of Canada.
  • Amended the proposed section 25 to specifically allow the territories the same right of appointment of Senators as the provinces were to get.
  • Would have constitutionalized An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick, chapter O-1.1 of the Acts of New Brunswick, 1981.
  • Obligated the Senate to produce an economic statement on the country every 5 years, and present this to any conferences convened under the present section 36 of the Constitution Act, 1982.
  • A contradictory notwithstanding clause to allow for the creation of territitories without the unanimous consent of the provinces, as proposed.
  • Would have made constitutional the convocation of hearings on any proposed constitutional amendment by Parliament or the legislatures, as he case may be.
  • Added to the agenda of the proposed section 50 to include discussions on matter relating to aboriginal peoples.
  • Would have obligated the Prime Minister of Canada to invite aboriginal representatives to conferences on issues described immediately above.

1987 Constitutional Accord

June 3, 1987

WHEREAS first ministers, assembled in Ottawa, have arrived at a unanimous accord on constitutional amendments that would bring about the full and active participation of Quebec in Canada’s constitutional evolution, would recognize the principle of equality of all provinces, would provide new arrangements to foster greater harmony and cooperation between the Government of Canada and the governments of the provinces and would require that annual constitutional conferences composed of first ministers be convened not later than December 31, 1988;

AND WHEREAS first ministers have also reached unanimous agreement on certain additional commitments in relation to some of those amendments;

NOW THEREFORE the Prime Minister of Canada and the first ministers of the provinces commit themselves and the governments they represent to the following:

1. The Prime Minister of Canada will lay or cause to be laid before the Senate and House of Commons, and the first ministers of the provinces will lay or cause to be laid before the legislative assemblies, as soon as possible, a resolution, in the form appended hereto, to authorize a proclamation to be issued by the Governor General under the Great Seal of Canada to amend the Constitution of Canada.

2. The Government of Canada will, as soon as possible, conclude an agreement with the Government of Quebec that would

(a) incorporate the principles of the Cullen-Couture agreement on the selection abroad and in Canada of independent immigrants, visitors for medical treatment, students and temporary workers, and on the selection of refugees abroad and economic criteria for family reunification and assisted relatives,
(b) guarantee that Quebec will receive a number of immigrants, including refugees, within the annual total established by the federal government for all of Canada proportionate to its share of the population of Canada, with the right to exceed that figure by per cent for demographic reasons, and

(c) provide an undertaking by Canada to withdraw services (except citizenship services) for the reception and integration (including linguistic and cultural) of all foreign nationals wishing to settle in Quebec where services are to be provided by Quebec, with such withdrawal to be accompanied by reasonable compensation,

and the Government of Canada and the Government of Quebec will take the necessary steps to give the agreement the force of law under the proposed amendment relating to such agreements.

3. Nothing in the Accord should be construed as preventing the negotiation of similar agreements with other provinces relating to immigration and the temporary admission of aliens.

4. Until the proposed amendment relating to the appointments to the Senate comes into force, any person summoned to fill a vacancy in the Senate shall be chosen from among persons whose names have been submitted by the Government of the province to which the vacancy relates and must be acceptable to the Queen’s Privy Council for Canada.

Motion for a Resolution to Authorize an Amendment to the Constitution of Canada

WHEREAS the Constitution Act, 1982 came into force on April 17, 1982, following an agreement between Canada and the provinces except Quebec;

AND WHEREAS the Government of Quebec has established a set of five proposals for constitutional change and has stated that amendments to give effect to those proposals would enable Quebec to resume a full role in the constitutional councils of Canada;

AND WHEREAS the amendment proposed in the schedule hereto sets out the basis on which Quebec’s five constitutional proposals may be met;

AND WHEREAS the amendment proposed in the schedule hereto also recognizes the principles of equality of all the provinces, provides new arrangements to foster greater harmony and cooperation between the Government of Canada and the governments of the provinces and requires that conferences be convened to consider important constitutional, economic and other issues;

AND WHEREAS certain portions of the amendment proposed in the schedule hereto relate to matters referred to in section 41 of the Constitution Action, 1982;

AND WHEREAS section 41 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and the House of Commons and of the legislative assembly of each province;

NOW THEREFORE the (Senate) (House of Commons) (legislative assembly) resolves that an amendment to Constitution of Canada be authorized to be made by proclamation issued by Her Excellency the Governor General under the Great Seal of Canada in accordance with the schedule hereto.

SCHEDULE: CONSTITUTIONAL AMENDMENT, 1987

Constitution Act, 1867

1. The Constitution Act, 1867 is amended by adding thereto, immediately after section 1 thereof, the following section:

2. (1) The Constitution of Canada shall be interpreted in a manner consistent with
(a) the recognition that the existence of French-speaking Canadians, centered in Quebec but also present elsewhere in Canada, and English-speaking Canadians, concentrated outside Quebec but also present in Quebec, constitutes a fundamental characteristic of Canada; and
(b) the recognition that Quebec constitutes within Canada a distinct society.

(2) The role of the Parliament of Canada and the provincial legislatures to preserve the fundamental characteristic of Canada referred to in paragraph (1) (a) is affirmed

(3) The role of the legislature and Government of Quebec to preserve and promote the distinct identity of Quebec referred to in paragraph (1)(b) is affirmed.

(4) Nothing in this section derogates from the powers, rights or privileges of Parliament or the Government of Canada, or of the legislatures or governments of the provinces, including any powers, rights or privileges relating to language.

2. The said act is further amended by adding thereto, immediately after section 24 thereof, the following section:

25. (1) Where a vacancy occurs in the Senate, the government of the province to which the vacancy relates may, in relation to that vacancy, submit to the Queen’s Privy Council for Canada the names of persons who may be summoned to the senate.
(2) Until an amendment to the Constitution of Canada is made in relation to the Senate pursuant to section 41 of the Constitution Act, 1982, the person summoned to fill a vacancy in the Senate shall be chosen from among persons whose names have been submitted under subsection (1) by the government of the province to which the vacancy relates and must be acceptable to the Queen’s Privy Council for Canada.

3. The said act is further amended by adding thereto, immediately after section 95 thereof, the following heading and sections:

Agreements on Immigration and Aliens

95A. The Government of Canada shall, at the request of the government of any province, negotiate with the government of that province for the purpose of concluding an agreement relating to immigration or the temporary admission of aliens into that province that is appropriate to the needs and circumstances of that province.

95B. (1) Any agreement concluded between Canada and a province in relation to immigration or the temporary admission of aliens into that province has the force of law from the time it is declared to do so in accordance with subsection 95C (1) and shall from that time have effect notwithstanding class 25 of section 91 or section 95.

(2) An agreement that has the force of law under subsection (1) shall have effect only so long as and so far as it is not repugnant to any provision of an Act of the Parliament of Canada that sets national standards and objectives relating to immigration or aliens, including any provision that establishes general classes of immigrants or relates to levels of immigration for Canada or that prescribes classes of individuals who are inadmissible into Canada.

(3) The Canadian Charter of Rights and Freedoms applies in respect of any agreement that has the force of law under subsection (1) and in respect of anything done by the Parliament or Government of Canada, or the legislature or government or a province, pursuant to any such agreement.

95C. (1) A declaration that an agreement referred to in subsection 95B (1) has the force of law may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of the province that is party to the agreement.

(2) An amendment to an agreement referred to in subsection 95B (1) may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized

(a) by resolutions of the Senate and House of Commons and of the legislative assembly of the province that is party to the agreement; or
(b) in such other manner as is set out in the agreement.

95D. Sections 46 to 48 of the Constitution Act, 1982 apply, with such modifications as the circumstances require, in respect of any declaration made pursuant to subsection 95C (1), any amendment to an agreement made pursuant to subsection 95C (2) or any amendment made pursuant to section 95E.

95E. An amendment to sections 95A to 95D of this section may be made in accordance with the procedure set out in subsection 38(1) of the Constitution Act, 1982, but only if the amendment is authorized by resolutions of the legislative assemblies of all the provinces that are, at the time of the amendment, parties to an agreement that has the force of law under subsection 95B(1).

4. The said Act is further amended by adding thereto, immediately preceding section 96 thereof, the following heading:

General

5. The said Act is further amended by adding thereto, immediately preceding section 101 thereof, the following heading:

Courts Established by the Parliament of Canada

6. The said Act is further amended by adding thereto, immediately after section 101 thereof, the following heading and sections:

Supreme Court of Canada

101A. (1) The court existing under the name of the Supreme Court of Canada is hereby continued as the general court of appeal for Canada, and as an additional court for the better administration of the laws of Canada, and shall continue to be a superior court of record.

(2) The Supreme Court of Canada shall consist of a chief justice to be called the Chief Justice of Canada and eight other judges, who shall be appointed by the Governor General in Council by letters patent under the Great Seal.

101B. (1) Any person may be appointed a judge of the Supreme Court of Canada who after having admitted to the bar of any province or territory, has, for a total of at least ten years, been a judge of any courts in Canada or a member of the bar of any province or territory.

(2) At least three judge of the Supreme Court of Canada shall be appointed from among persons who, after having been admitted to the bar of Quebec, have, for a total of at least ten years, been judges of any court of Quebec or of any court established by the Parliament of Canada, or members of the bar of Quebec.

101C. (1) Where a vacancy occurs in the Supreme Court of Canada, the government of each province may, in relation to that vacancy, submit to the Minister of Justice of Canada the names of any of the persons who have been admitted to the bar of the province and are qualified under section 101B for appointment to that Court.

(2) Where an appointment is made to the Supreme Court of Canada, the Governor General in Council shall, except where the Chief Justice is appointed from among members of the Court, appoint a person whose name has been submitted under subsection (1) and who is acceptable to the Queen’s Privy Council for Canada.

(3) Where an appointment is made in accordance with subsection (2) of any of the three judges necessary to meet the requirement set out in subsection 101B(2), the Governor General in Council shall appoint a person whose name has been submitted by the Government of Quebec.

(4) Where an appointment is made in accordance with subsection (2) otherwise than as required under subsection (3), the Governor General in Council shall appoint a person whose name has been submitted by the government of a province other than Quebec.

101D. Sections 99 and 100 apply in respect of judges of the Supreme Court of Canada.

101E. (1) Sections 101A to 101D shall not be construed as abrogating or derogating from the powers of Parliament to make laws under section 101 except to the extent that such laws are inconsistent with those sections.

(2) For greater certainty, section 101A shall not be construed as abrogating or derogating from the powers of the Parliament of Canada to make laws relating to the reference of questions of law or fact, or any other matters, to the Supreme Court of Canada.

7. The said Act is further amended by adding thereto, immediately after section 106 thereof, the following section:

106A. (1) The Government of Canada shall provide reasonable compensation to the government of a province that chooses not to participate in a national shared cost program that is established by the Government of Canada after the coming force of this section in an area of exclusive provincial jurisdiction, if the province carries on a program or initiative that is compatible with the national objectives.
(2) Nothing in this section extends the legislative powers of the Parliament of Canada or of the legislatures of the provinces.

8. The said Act is further amended by adding thereto the following heading and sections:

XII – Conferences on the Economy and other Matters

148. A Conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada at least once each year to discuss the state of the Canadian economy and such other matters as may be appropriate.

XIII – References

149. A reference to this Act shall be deemed include a reference to any amendments thereto.

Constitution Act, 1982

9. Sections 40 to 42 of the Constitution Act, 1982 are repealed and the following substituted therefor:

40. Where an amendment is made under subsection 38(1) that transfers legislative powers from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does not apply.
41. An amendment to the Constitution of Canada in relation to the following matters may be made proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:

(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;
(b) the powers of the Senate and the method of selecting Senators;

(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;

(d) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province was entitled to be represented on April 17, 1982;

(e) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;

(f) subject to section 43, the use of the English or French language;

(g) the Supreme Court of Canada;

(h) the extension of existing provinces into the territories;

(i) notwithstanding any other law or practice, the establishment of new provinces; and

(j) an amendment to this part.

10. Section 44 of the said Act is repealed and the following substituted therefor:

44. Subject to section 41, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.
11. Subsection 46(1) of the said Act is repealed and the following substituted therefor:

46. (1) The procedures for amendment under sections 38, 41, and 43 may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province.
12. Subsection 47(1) of the said Act is repealed and the following substituted therefor:

47. (1) An amendment to the Constitution of Canada made by proclamation under section 38, 41 or 43 may be made without a resolution of the Senate authorizing the issue if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing the issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.
13. Part VI of the said Act is repealed and the following substituted therefor:

Part VI

Constitutional Conferences

50. (1) A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada at least once each year, commencing in 1988.

(2) The conferences convened under subsection (1) shall have included on their agenda the following matters:

(a) Senate reform, including the role and functions of the Senate, its powers, the method of selecting Senators and representation in the Senate;
(b) roles and responsibilities in relation to fisheries; and

(c) such other matters as are agreed upon.

14. Subsection 52(2) of the said Act is amended by striking out the word “and” at the end of paragraph (b) thereof, by adding the word “and” at the end of paragraph (c) thereof, and by adding thereto the following paragraph:

(d) any other amendment to the Constitution of Canada.
15. Section 61 of the said Act is repealed and the following substituted therefor:

61. A reference to the Constitution Act, 1982, or a reference to the Constitution Acts, 1867 to 1982, shall be deemed to include a reference to any amendments thereto.
General

16. Nothing in Section 2 of the Constitution Act, 1867 affects section 25 or 27 of the Canadian Charter of Rights and Freedoms, section 35 of the Constitution Act, 1982 or class 24 of section 91 of the Constitution Act, 1867 .

Citation

17. This amendment may be cited as the Constitution Amendment, 1987.

Meech Lake Accord

Definition of Meech Lake Accord by Rand Dyck and Christopher Cochrane (in their book “Canadian Politics: Critical Approaches”) in the context of political science in Canada: The 1987 package of constitutional amendments intended to bring Quebec back into the constitutional fold.

Definition of Meech Lake Accord

The Canada social science dictionary [1] provides the following meaning of Meech Lake Accord: An agreement by the Prime Minister of Canada and the ten provincial premiers, signed June 3, 1987, to amend the Constitution of Canada to provide for: explicit recognition of Quebec as a ‘distinct society’; increased provincial power over immigration; limitation of federal government spending power; recognition of Quebec’s right to veto further Constitutional change; provincial participation over appointments of Supreme Court of Canada judges. The Accord required assent from Parliament and all ten provincial legislatures, but did not receive final ratification in either Newfoundland or Manitoba before the June 23, 1990 deadline. Principal components of the Accord were later included in the Charlottetown Agreement (August 28, 1992), a further attempt to amend the Constitution of Canada, which was defeated in a national referendum.

Meech Lake Accord: Resources

Notes and References

  1. Drislane, R., & Parkinson, G. (2016). (Concept of) Meech Lake Accord. Online dictionary of the social sciences. Open University of Canada

Resources

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  • Politics
  • Political Science

Supremacy of Parliament

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Supremacy of Parliament in Canada

Supremacy of Parliament and the Canadian Charter of Rights and Freedoms

The preamble to the Constitution Act, 1867, states that the provinces wished to be federally united “with a Constitution similar in Principle to that of the United Kingdom”. In effect, this established Supremacy of Parliament as one of the cornerstones of the constitution of Canada. In a system of Supremacy of Parliament, Parliament is deemed to have sovereign and uncontrollable authority in the making, amending and repealing of laws. Nothing is beyond its capacity to legislate upon. Parliament is the place where absolute legislative power resides. It is said to be able to do anything except for that which is naturally impossible. Strictly speaking, in a country of supremacy of Parliament, Parliament cannot issue an unconstitutional law since there are no bounds to its authority.

Supremacy of Parliament to 1982

This feature of the British constitution was transferred to Canada when legislatures were first created in the period after the conquest. The only restrictions that applied were those connected to the colonial status of the various provinces, the British Parliament having reserved for itself some of the legislative powers appertaining to sovereign authority. The Constitution Act, 1867, continued these restrictions, as Canada remained a colony under the authority of the Imperial Parliament and Government. The full extent of the supremacy, save for the part that touched upon the amendment to the constitution – a restriction that was only removed by the Constitution Act, 1982 -, was transferred to Canada by the Statute of Westminster in 1931.

However, while it is clear that Supremacy of Parliament applied to Canada, partly before and entirely after 1931, the supremacy was understood in Canada in the context of the federal system. What was supreme in Canada was Parliament, understood as the sum total of all the legislative bodies of the country, provincial and federal, each in their sphere of jurisdiction. Thus, it was possible for a legislative body to enact legislation deemed unconstitutional if it had acted beyond its legislative authority, if it had not legislated within its sphere of jurisdiction. Evidently, the courts would strike down legislation that was beyond the legislative powers of the federal Parliament, if it invaded provincial jurisdiction, or of the provincial legislatures, if it invaded federal jurisdiction.

To sum up, before 1982, one could always be certain that the legislative bodies of Canada could adopt laws, even of the most oppressive nature, as long as they acted within their fields of jurisdiction, that they did not invade the jurisdiction of the other level of government. This is why citizens facing repressive legislation rarely argued before the courts that such legislation could not be issued; rather, they would claim that the legislative body had acted beyond its power, such power residing only in the other level of government. It would implicitly or explicitly be admitted that some level of government could adopt repressive legislation; however, it was frequently claimed that it was only the other level of government that could do it. Such was the nature of constitutional contestations in Canada regarding the Supremacy of Parliament before 1982.

Supremacy of Parliament under the Canadian Charter of Rights

With the Constitutional Act, 1982, Canada diverted from a strict regime of Supremacy of Parliament. By including a Charter of Rights and Freedoms in the Constitution Act, 1982, Canada appeared to end Supremacy of Parliament. The Charter is clear on this point : it is stated in s. 32 (1) that it applies, or binds, the federal Parliament and the Legislatures of the provinces. Thus, legislation not conforming to the Charter is unconstitutional. Supremacy has been shifted, or so it would appear, from Parliament to the Constitution, and thus to the people. One should not be surprised at this outcome: why else would a Charter of Rights and Freedoms be issued if not to restrict the legislative powers of those that govern us? The prime purpose of a Charter of Rights is to affirm that some rights and freedoms are so important, and so dear to individuals and the democratic process, that never should they be infringed upon, even should a large number of people so wish it to be. Its purpose is to protect individual and minorities against the “tyranny of the majority” as expressed by the majority in the legislative bodies.

However, in the Canada of 1982, many were weary of departing completely from a regime of Supremacy of Parliament to jump into an American-style regime of Supremacy of the Constitution, of the supremacy of a Charter of Rights. Some argued that a country should not turn so clearly its back on its historical experience. Others claimed, not without some validity, that Canada had been served well by a regime of Supremacy of Parliament, that its record on human rights with such a regime was probably better than that achieved by the United States under a Bill of Rights, better than a country under which slavery and segregation were permitted and lawful, even when it had affirmed that “all men were born equal” and “with inalienable rights”. Others were wary of introducing a constitutional regime with which Canada did not have experience, and consequently where the country would likely draw much guidance from the United States, a prospect that worried some Canadian nationalists at the time. In any case, some of the champions of the principle of Supremacy of Parliament would have opposed the Charter altogether if concessions to the principle of Supremacy of Parliament were not made. As the November 1981 constitutional conference between the provinces and the Trudeau government made it clear, the latter had either to accept concessions and maintain a measure of supremacy in the legislatures or else there would be no Charter of Rights. These factors explain why some restrictions were written into the Charter.

Three types of restrictions on individual rights were written into the Canadian Charter of Rights and Freedoms: first, there is a general restriction in s. 1; secondly there are several specific restrictions in a number of individual articles; lastly there is the notwithstanding clause found in s. 33. These are explained and discussed briefly below.

1. The general restriction of s. 1

Section 1 makes it clear that the rights defined in the 34 articles that the Charter contains are not without possible limits, that they can be restricted by Parliament and the provincial legislatures. It states that the rights of the Charter are subjected “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The language used is very clear: a legislative body may issue a law, though it infringes upon the rights defined in the Charter, if this law merely just “limits” the right (presumably it could not abolish it), if such limits may be deemed reasonable in a free and democratic society. Thus, any legislature that enacts laws of a restrictive nature is bound to show up before the courts to argue that their “restriction” is justified to protect a free and democratic society. To use examples: in the Second Word War, newspapers were suppressed to protect our society and it was argued that Japanese Canadians were interned for the same reason. Would a Charter with a s. 1 have made a difference? In 1970, the Trudeau government adopted the War Measures Act, and many innocent people went to jail because of it. Would they have been saved this ordeal had a Charter of Rights with a s. 1 existed? Supporters of the clause argue that it is necessary to protect minorities from hate literature, children from exploiters, the people from powerful lobbies etc. Still, it is clear that Canada does not consider that individual rights are absolutes.

2. Specific restrictions

Several articles of the Charter are written with a qualifier that restricts the generality of the rights defined. The net effect is to narrow the range of rights and freedoms granted. For example: s. 2 declares that there is a right to peaceful assembly; s. 8 guarantees against unreasonable searches and seizure; s. 11 provides that upon arrest the accused must be informed of the charge not immediately but without unreasonable delay; an individual may not be denied reasonable bail without just cause; s. 12 provides guarantees against cruel and unusual treatment; s. 23 guarantees that minority language people have access to minority language schools but only where the number of such children warrants it; evidence improperly obtained will only be excluded from the court if such evidence “would bring the administration of justice into disrepute” (s. 24), etc.

3. The notwithstanding clause

Although frequently misunderstood, the best known restriction written into the Charter of Rights and Freedoms is the notwithstanding clause found in s. 33 of the Charter. The article stipulates that a law that infringes upon the Charter may still apply if such a law specified that it is enacted notwithstanding (regardless of) the provisions of the Charter. Thus, s. 33 clearly reintroduces a measure of Supremacy of Parliament. The legislative bodies of Canada can have the last word on a number of issues.

S. 33 does not apply to the whole of the Charter. It can be used to derogate from ss. 2 (fundamental freedoms), 7-14 (legal rights) and 15 (equality rights, the non-discrimination clauses). It cannot be applied to the following category of rights: democratic rights (ss. 3-5), mobility rights (s. 6), official languages (ss. 16-22), minority language rights (s.23) and aboriginal rights (s. 35; this section is not specifically in the Charter of Rights). In general, the legislative bodies can legislate notwithstanding individual rights but not collective rights.

The notwithstanding declaration only has validity for five years (s. 33 – 3) after which it dies unless it is reissued. It can never apply to gender rights (equality of male and female persons) as s. 28, with a notwithstanding clause of its owns, forbids it.

Some have argued that the notwithstanding clause renders the Charter “not worth the paper it is written on”. Such views are exaggerated as the right is restricted in scope and time. It has rarely been used and might be used to actually enhance rights of some individuals or groups. Others believe that its presence, by allowing that democratically elected individuals can have the last word, has had a beneficial effect on rights in Canada. The Supreme Court of Canada, generally a liberal court in any case, has not had to exercise judicial restraint in interpreting rights, as is customary in such situations, since it can leave the legislative bodies with the last word. The parliamentarians have rarely dared curtail the liberal interpretations of the Court.

Conclusion

The introduction of the Charter of Rights and Freedoms has curtailed, to some extent, the principle of Supremacy of Parliament in Canada. It cannot be said that the legislative bodies in Canada can do as they please, as was the case once upon a time. They have been restricted by specific provisions of the Charter. Neither can it be said that Canada has moved into a system of unfettered Supremacy of the Constitution (Charter). The restrictions of the Charter are too considerable not to recognize them. Thus, Canada has created a mixed system. In a country that prides itself to be reasonable and to govern by compromise, the Charter may be said to be typically Canadian.

© 2001 Claude Bélanger, Marianopolis College

Supremacy of Parliament

Definition of Supremacy of Parliament by Rand Dyck and Christopher Cochrane (in their book “Canadian Politics: Critical Approaches”) in the context of political science in Canada: The principle that no other organ of government can overrule Parliament or its laws, a principle modified to some extent in 1982 with an expanded power of judicial review incorporated in the Charter of Rights and Freedoms.

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  • Politics
  • Political Science