THE CANADIAN FEDERALISM

BRITISH NORT AMERICA ACT 1867

a British statute creates the federal dominion of CanadaCanada is a British colony subordinate to the UK in international affairs and subject to imperial limitations in local affairs:

Imperial Parliament can approve statutes having legal effects in CanadaBritish Government has the power to disallowance and reservationThe Queen appoints the Governor General

BRITISH NORT AMERICA ACT 1867

does not codify all the constitutional rules of the dominion

no amending clauseno bill of rightsthe parliamentary government is regulated by constitutional conventions* and not by written rules

CANADA ACT 1982

A British statute that made some important “repairs” to the Canadian constitutional law

introduces an amending formulaintroduces a (constitutional) bill of rights (Charter of rights and freedoms)ends the authority over Canada of the UK

sect. 52 of the constitution Act

The constitution of Canada includes The Canada Act 1982The acts and orders referred to in the Schedule [among them the BNA 1867]

“The constitution of Canada is the supreme law of Canada and any law inconsistent with the provisions of the Constitution is of no force or effect” [supremacy clause]

Amendments to the constitution of Canada shall be made only in accordance with the amending formula [entrenchment clause]

the federal parliamentary government

parliamentary government > the Government is responsible to the elective Assembly [confidence rule]Prime Minister > Leader of the majority partyHead of state > Queen represented by the Governor General

constitutional conventions

rules of the constitution rules that are not enforced by the courts (> not legal rules), but that the courts can recognize

rules considered obligatory by the officials to whom they apply can develop from

usage

an agreement between all the relevant officials

the executive branchPrime Minister > Leader of the majority partyMinisters > Individual responsibility

accountabilityresponsibility

Cabinet

confidence ruleunanimity ruleconfidentiality rule

the legislative branch

Parliament QueenSenateHouse of Commons

house of commons307 members > first past the post electoral system

strict party discipline

the terms of the House of Commons:

election at least every 5 years (BNA 1867)the Governor General can dissolve the chamber in advancefixed term parliament (statute) > election every 4 years the third monday in October

senate

not elected Chamber > members are appointed by the Governor Generalevery senator stays in office until the age 75 > continuous Chamber

24 representatives for every area (Ontario, Quebec, Maritime and West provinces) + 3 for the Territoriesnot effective representation of the provincial interests

limitations of the senate composition

some provinces are overrepresented, other are underrepresented

very weak link between senators and provinces (residence)the Government has the power to appoint 8 additional senators

governor generalBNA 1867 > the Queen has the executive power > Governor Generalno written rules about his appointment > Queen (advice Canadian Cabinet now)important powers exercised on the advice of the Canadian Government

to give the royal assent to the bills approved by the Chambersto appoint senatorsto appoint ministers

governor general

Personal prerogatives (no advice)

the appointment of the Prime Ministerthe dismissal of the Prime Ministerthe dissolution of the House od Commons

CANADA IS A QUASI-FEDERALISM (WHEARE)

The technique used to distribute the legislative power between federation and provinces ***The federal Government has the power to levy indirect and direct taxes

The federal Government has the power to appoint the Lieutenant Governor of each province

The federal Government has the power to disallow (invalidate) provincial statutes

The federal Government has the power to appoint judges of the superior courts of each province

PROVINCIAL CONSTITUTIONS

BNA 1867

title [parliamentary government = separation of powers > Lieutenant Governor]sect. 92(1) > provinces could amend their federal constitutions [today sect. 45 CA 1982] but

not the Lieutenant Governor > colonial dominionno special procedure > flexible constitutionslimitations from case law (OPSEU v. Ontario) > federal principle, bilingualism, responsible government

CANADA IS A FEDERAL STATE

Federal fiscal dominance > since II WW power back to the provincesDisallowance power is not already usedThe Lieutenant Governors act on the advice of the provincial CabinetsThe tradition of judicial independence is strong

THE DISTRIBUTION OF LEGISLATIVE POWERS

double list of matters (not one) both falling within the exclusive competence of one level of governmentthe residual clause is in favor of the federal Parliament

some important topics are allocated to the federal Parliament (trade and commerce, banking, marriage, divorce, criminal law, jails)

WHY A QUASI-FEDERALISM?

America federalism was a counter-model

Civil war > too many state powersDifferent solution to the problem of sovereignty

Strong federal government is the answer

FEDERAL COMPETENCES

Unity of the federal stateArmy and defenseEconomyInfrastructure and communicationNO treaty making and implementing power

THE SEPARATION OF LEGISLATIVE POWER IN

THE COURTSFederalism (entails)

written constitution > separation of powers

a rigid constitution

a judge who resolves conflicts of competence between the two levels of government

THE SEPARATION OF LEGISLATIVE POWER IN

THE COURTSNeither the American nor the Canadian constitution expressly provide for a judge

USA > Marbury v. Madison (1803) > Judicial review of legislation

Canada > Colonial Validity Act > JCPC and provincial judges had the power to review the coherence of legislation passed by the Canadian legislative assemblies with the Imperial statutes > after 1982 Canadian legislation has to respect the constitution

THE SEPARATION OF LEGISLATIVE POWER IN THE

COURTS1867-1949 [JCPC] > a narrow interpretation of the federal powers and a wide interpretation of the provincial powers1949-today [Supreme Court] > growth of the federal powers along with the transition from dual to cooperative federalism [/ U.S., because of the importance of agreements between the 2 levels of government]

THE POGG CLAUSE IN THE JCPC INTERPRETATION

matters not included among the federal and provincial competences + Canadian unquestionable interest

extraordinary circumstances or danger of the whole country > this clause could not justify the derogation from the division of legislative powers during the economic crisis (1934/35 > // U.S.)

THE POGG CLAUSE IN THE SUPREME COURT INTERPRETATION

Residual power branch > when a matter is not connected with the matters referred to in sect. 91 and 92Emergency branch > when there is an emergency to deal with (e.g. the inflation during the oil crisis in 1973)National concern branch > when a matter of national interest should be regulated

SUPREME COURT

9 Judges appointed by the Governor General [Cabinet]

3 from Quebec [law > civil law]3 from Ontario [practice > = Quebec]2 from the Western provinces1 from the Atlantic provinces

the last Court of Appeal for civil, criminal and constitutional casesreference jurisdiction

SUPREME COURT > reference jurisdiction

“The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning:(a) the interpretation of the Constitution Acts;(b) the constitutionality or interpretation of any federal or provincial legislation;....(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised”

SUPREME COURT > REFERENCE JURISDICTION

Governor General > Cabinet

Always used for constitutional cases

Not a traditional judicial function, because it lacks the adversarial and concrete character of a controversyAn advisory opinion has no legal effects and is not binding on the parties to reference

CONSTITUTION AMENDMENT

BNA 1867 contained no general provision for its own amendment > Imperial statute > Westminster ParliamentStatute of Westminster 1931 > Canada has the power to repeal or amend some Imperial statutes, but not the BNA 1867 [Opposition of the provinces]Imperial conference of 1930 > The UK Parliament can pass a statute applying to a dominion only with the consent of dominion [practice] > for every amendment involving provincial powers the unanimous provincial power was obtained

PATRIATION REFERENCE (1981)

1981 Trudeau wants the patriation of the Canadian constitution, also without the provincial consent

Supreme Court1. Is the provincial consent foreseen by the law? No

Is the provincial consent foreseen by a constitutional convention? Yes

Must be unanimous the provincial consent? No, so Quebec had not a veto power

> Agreement with 9 provinces (Quebec dissenting) > Canada Act 1982

CANADA ACT 1982

A British statute that made some important “repairs” to the Canadian constitutional law

Introduces an amending formulaIntroduces a (constitutional) bill of rights (Charter of rights and freedoms)Ends the authority over Canada of the UK

AMENDING FORMULA

General amending procedure (38) [once]Unanimity procedure (41)

“Some but not all provinces” procedure (43) > for amend provisions not applying to all provinces [seven]Federal Parliament alone procedure (44) > for amend provisions relating to the federal executive and to both houses of Parliament [twice]Provincial legislature alone procedure (45) *** > provincial constitutions

general amending procedure

For amendments not otherwise provided for

Requires the assent of federal Parliament and 2/3 (7/10) of the provinces representing at least 50% of the population

No single province has a veto power > but there is an opting out right***The 50% of population means at least the consent of 1 of the 2 most populous provinces [Ontario or Quebec]

UNANIMITY PROCEDURE

Requires the assent of the Canadian Parliament and of all provincesFor 5 subjects:

1. the office of the Queen, the Governor General and the Lieutenant Governor of a provincethe right of a province to have a number of representatives in the House of Commons not less than the number of senators by which the province is represented within the Senate the use of French and English language

1. the composition of the Supreme Court of Canada2. the amending formula

PATRIATION WITHOUT QUEBEC

The Canada Act is binding to all provinces, but Quebec refuses to participate in constitutional changes involving the use of the new amending formula >

Opting Out Right***Override Clause***

OPTING OUT RIGHTWhen an amendment “derogates from the legislative powers, the property rights or any other rights or privileges of the legislature or government of a province” the legislative assembly of a province can pass a resolution of dissent and therefore the amendment shall not have effect in that province (sect. 38,3)No veto power > no legal effects of an amendmennt within the dissenting provinceA resolution of assent can be passed at any times

OVERRIDE CLAUSE(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

...

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of a re-enactment made under limitation 33.

OVERRIDE CLAUSEThe result of a compromise during the patriation process The effects of the declaration last 5 years and can be renewed only onceThe legislature must declare expressly the use of the override clauseSome charter rights can be overriden

fundamental freedomslegal rightsequality rights

OVERRIDE CLAUSE:AN EVALUATION

PracticeFew used outside Quebec Used by Quebec as instrument of political opposition

Parliamentary sovereignty v. Constitution sovereigntyParliament v. Judges > problem of legitimacy of the judicial review of legislation > dialogue between the Court and the Legislature / weak judicial review of legislation

PATRIATION WITHOUT QUEBEC

Meech Lake Agreement (1984)*** > no unanimity of provincesCharlottetown Agreement (1992)*** > referendum defeatedParti Québécois (1994) > referendum on sovereignty defeated [50,6% / 49,4%] (1995) > Secession Reference (1998)

The federal Parliament passesa motion defining Quebec a distinct society***the Regional veto Act (1996)***

THE CONTENTS OF THE TWO AGREEMENTS

The recognition of Quebec as a distinct society

A greater power of Quebec in the migration policy

A provincial role in the appointment of the Canadian Supreme Court

Some limitations on the federal spending power

A veto power for Quebec on some constitutional amendments

SECESSION REFERENCECould Quebec secede unilaterally from Canada? No under the constitutional law > a secession would require a constitutional amendment (it is no clear what the procedure is to use) and the agreement between the federal Government and the other provincesA referendum in Quebec that yielded a clear majority on a clear question in favour of secession can not accomplish a secession, but would confer legitimacy on demands for secession and would give rise a reciprocal obligation on all parties to negotiate a constitutional change

CLARITY ACT 2000The House of Commons has the power to decide if a a referendum question on secession is clear > if the question is not clear, the federal Government cannot negotiate the secessionThe House of Commons has the power to decide if the majority in favour of a secession is clear by evaluating the size of majority, the turnout and any other matters or circumstances it consider to be relevantUnder the constitution of Canada there is no right of unilateral secession > an amendment of the constitution would be required for a province to secede from Canada

QUEBEC IS A DISTINCT SOCIETY

Expression born in the political debate to highlight the uniqueness of the Canadian province within the federation

The majority of the Canadian french-speakers live in Quebec > in Canada french-speaker are a minorityThe majority of the catholics live in Quebec > In Canada catholics are a minorityCivil law tradition due to the French colony that UK obtained with the Treaty of Paris

QUEBEC HISTORYTreaty of Paris (1763) New France was ceded to U.K. by France

The Quebec Act 1774 restored the civil law system abolished by the royal proclamation of 1773

The Constitutional Act 1791 Upper Canada (English) and Lower Canada (French) > the law of the former province of Quebec remains in force until modified by the Assemblies of both provinces. > Upper Canada modifies it, Lower Canada no.

The Union Act 1840 created a unique province (Canada) and confirmed the co-existence of two legal systems

The BNA 1867 divided the former province of Canada into 2 new provinces Ontario (former Canada West and Upper Canada) and Quebec (former Canada Est and Lower Canada) > every province manteins its body of law.

REGIONAL VETO ACTMinisters of Government cannot submit resolutions on constitutional amendments without the consent of:

OntarioQuebecBritish Columbia2 of the Atlantic Provinces2 of the Western Provinces

Is it a constitutional statute? maybe not, because it is an ordinary statute that indirectly “modify” the amending formulaNevertheless it is a statute able to influence the Government decisions concerning the constitutional amendments

ABORIGINAL PEOPLESect. 91(24) > Federal Parliament makes laws in relation to “Indians and lands reserved for the Indians” > why?

The level of government able to respect the Indian reserves, the treaties with Indians and the Indians rightsOne national policy in this matter

Indians = aboriginal people who had been living there long before European contact > Indians + Métis + Inuit (sect. 35 Charter)

ABORIGINAL PEOPLEThree territories - created by law - where the majority of the aboriginal people liveElective and legislative Assemblies > separation of legislative power similar to that in force between Federation and Provinces

North West (1875)Yukon (1989) Nunavut (1994)