The Constitution

 “This story tells Canadians that our deepest political values are
ultimately traceable to a denial of fairness, equality, and mutual
respect. This builds Canada on a dishonorable foundation.” John
Borrows
 Constitution: A constitution is a set of rules which establish structure
and the fundamental principles of a regime
 Constitutionalism: The idea that the regime itself must be ordered in
accordance with agreed-upon rules that will be supreme.
o Constitution act, 1982, section 52; The constitution is “the
supreme law of Canada, and any law that is inconsistent with
the provisions of the Constitution is, to the extent of the
inconsistency of no force or effect.
 Royal proclamation, 1763.
o Crown would have a relationship with indigenous people.
Nation to nation
 1867 British North America Act.
o Responsibility of the federal government.
 Louis Riel and the Metis Provisional Government, 1869-70.
o Metis thought they should have control of French land in the
west.
 A National Policy.
o Create infrastructures, national railways.
o You can move goods and people on trains.
o Although treaties will go on Canada will occupy the land.
o Displace people by putting indigenous people on reserves.
o Residential schools a way to construct ideals onto indigenous
people.
  Constitutional Functions.
o To establish an authority to govern a given territory and the
people within it.
o To establish which offices or institutions will exercise certain
forms of political authority.
o To establish the relative authority of different levels of
government.
o To mark out the limits of state power with respect to the
population.
o To provide an understood way to amend the document.
o To establish the role of citizens in the political regime.
o To state the general goals and values of the country, to foster a
common identity.
 A national purpose?
o British North America Act, 1867 vs. American Constitution, 1787-
89.
 How can an action of a Canadian federal or provincial government be
Legal but UNCONSTITUTIONAL?
 Keep this question in mind as we work through constitutional forms
and sources.
 Constitutional Forms/sources.
o Treaties (and Tradition)
o Entrenched Constitutional Acts.
o Organic statutes. (Laws passed by legislators.)
o Conventions. (Social norm/customs; stuff not written down
implicit agreement enforced in political)
o Judicial Interpretations.
 “The Living Tree” Constitutional Metaphor.
o “The British North America Act planted in Canada a living tree
capable of growth and expansion within its natural limits.”
Edwards v. Canada (attorney General 1929 [JCPC])- willing to
appoint women as senators. Women can become senators.

2
 o “The frozen concepts’ reasoning runs contrary to one of the
most fundamental principles of Canadian constitutional
interpretation: that our Constitution is a living tree which, by
way of progressive interpretation, accommodates and addresses
the realities of modern life.” Re: Same-Sex Marriage, 2004 [SC]
 British North America Act, 1867.
o Economy was struggling, colonies wanted to improve trades
between each other so built railways, created confederation
because they didn’t want to be annexed by USA. Maritime
provinces held conference to unite all provinces. Outlined new
parliamentary system and divide powers between federal and
provincial governments. No indigenous relations.
 From Father to Daddies.
o Process of trying to include indigenous people.
 Core Constitutional Features, 1867
o Executive power within a constitutional Monarchy. (Limited role
for the monarchy)
o Legislative power through responsible government.
o Judicial power through judicial review.
o Provincial power through federation.
o Citizen power through elections.
o Limits on majority power through minority rights protections
(language, religious schooling)
o Colonial power through assertion of dominion.
 Dominion of Canada.
o No longer called dominion as it was deemed too ‘churchy’.
o Elites political contract.
 Limiting Canadian Sovereignty.
o Britain appoints governor general.
o Powers of reservation and disallowance. (Allowed federal
government/governor general to reserve signature,
disallowance way of saying you shouldn’t be allowed to do that.)
o Arbitrary extension of imperial legislation to Canada.

3
 o Paramountcy of British legislation. (Britain’s law reigns supreme
if two laws go against each other.)
o Authority of the JPC as final court of appeal.
o British control of Canadian foreign/trade policy.
o No domestic amending formula.
 Expanding Canadian Sovereignty.
o 1919- League of Nations Membership.
o 1926- Balfour Declaration (imperial conference confers
autonomy on dominions.)
o 1931- Statute of Westminster (confirms independence from
Britain)
o 1949- Supreme Court of Canada (replaces JCPC as final court of
appeal)
o 1952- First Gov. General appointment from Canadian consulting
British.
 Onwards to (Re)Patriation
o 1920s-70s: Calls/negotiations for amending formula, Bill of
Rights, division of powers, etc. Mega-constitutional politics
emerge.
o 1960s-70s:
 Quiet revolution, election of Parti Quebecois government
(1976)
 Indigenous political resurgence.
 Women’s movement, nascent LGBTQ+ movement.
 Provinces more proactive.
o 1980: Quebec Referendum
o 1981: Patriation Reference
 Patriation reference
o The court decided that it was legal for the federal government to
patriate and amend Canada’s Constitution without the consent
of the provincial governments. But it also found that to do so in
areas.

4
 o Convention: Constitutional rule based on implicit political
agreement and enforced in the political arena rather than by the
courts.”
 Constitution Act, 1982.
 What’s new in ’82?
o Supreme Law (part 7)
o Charter of Rights and freedoms (part 1)
 Judicial vs parliamentary supremacy
 Women’s movement keeps s33 from applying to equality
rights.
o Enhanced indigenous 9parts 2 and 4)
o Provincial power over natural resources extended (part 6)
o Equalization payments (part 3)
 Five Amending Formulas.
o House, senate, 2/3 provinces representing 50% or more national
pop.
o Fed. Parliament only.
o Fed. Parliament and legislature of 1 province.
o Fed. Parliament and legislatures of some provinces.
o Fed. Parliament and all provinces.
 Single issue constitutional Amendments since 1982.

 MLA and CA.

o How would these past- 1982 metaconstitutional efforts have
changed political authority in Canada, and what did their failure
have on Canadian politics?

5
  MLA- Elite Politics (1987-90)
 Who speaks for Canada?
o Mitch lake would recognize Quebec as a distinct society.
o Clyde wells and Elijah Harper stopped the MLA.
 CA- Mass Politics (1992)
 Two new political forces.
o Preston Manning (Reform Party)
o Lucien Bouchard (Bloc Quebecois)
 After Charlottetown.
o 1995 Quebec Referendum (50.6/49.4)
o 1996 Federal Government Plan A: resolution that Quebec is a
distinct society within Canada, Ottawa passes law to commit
itself to securing regional agreement for constitutional
amendments, labor-market training transferred to provinces,
where desired.
 Sponsorship scandal…
o 1999 Federal Government Plan B: Clarity Act (reference to
Supreme Court)
o 2006 Federal Government Motion.
