- Количество слайдов: 19
Dec. 2: The Political Dynamics of Constitutional Reform 1981 -Present • • • • Senate Reference [Kit, p. 316] A. Cairns, “Constitutional Change…” [Kit, p. 138] R. Gibbons, “Shifting Sands…” [Kit, p. 163] Patriation Reference [Kit, p. 318] Meech Lake and Charlottetown Accord [Kit, pgs. 375 and 378] Resolution on Recognition of Quebec… [Kit, p. 389] An Act Respecting Constitutional Amendment [Kit, p. 390] A Framework to Improve the Social Union… [Kit, p. 392] Reference re. Secession of Quebec [Kit, p. 337] Alan Cairns: Constitutional Change and the Three Equalities [Kit, 138] K. Mc. Roberts, Misconceiving Canada, Chapter 9, “The 1995 Quebec Referendum” [Kit, p. 151] P. Hogg, “The Duty to Negotiate” [Kit, p. 178] Gall, Ch. 13, and Bogart, “The Administrative State and Judicial Review (182)”
Main Events surrounding Patriation controversy • • Balfour declaration: 1926 Statute of Westminster: 1931 Quiet Revolution: 1960 + Trudeau becomes PM, 1968 Victoria Charter: 1971 Senate reference: 1979 Quebec referendum: 1980 Negotiations re patriation & Charter, 1980 -81 • Unilateral attempt to patriate by Trudeau, 1981 • Patriation reference, 1981 • Agreement of Nov. 5, 1981 (Que not inc’d) • Canada Act signed, April 1982 • Quebec veto ref, 1982 • Meech Lake Acc, 19871990 • Charlottetown Accord, 1992 • Quebec referendum: 1995
Main events (2) • Resolution on recognition of Quebec as a Distinct Society (1995) • Act respecting constitutional amendment, and resolution to recognize Quebec as a “distinct society. ” (1996) • Calgary Declaration (1997) • Quebec secession reference (1998) • Social Union Framework Agreement (1999) • Clarity Act (2000)
Senate Reference (1979) • Already discussed in class on cooperative federalism, Nov. 4/05 • In 1978, the Trudeau government floated a “trial balloon, ” a paper on Senate reform. Possibilities included abolishing the Senate, or changing it into a “house of the provinces” where half of the Senators would be chosen by the provincial legislatures or governments. • Does Parliament have the ability to change the Senate in any of these ways? Reference question sent to Supreme Court. • Answer by “the court” (Laskin, CJ): No. To change the Senate is to abolish the current Parliament (H of C, Senate, Queen) and replace it with a new Parliament. That requires a constitutional amendment by UK Parliament [after 1982, through the unanimity formula].
Patriation reference (1981) • Would the proposed amendments affect provincial powers: Yes (unanimous) • Is there a convention of provincial consultation? – Yes: Martland, Ritchie, Dickson, Beetz, Chouinard & Lamer (substantial, not unanimous) – No: Laskin, Estey & Mc. Intyre: No • Has the convention hardened into constitutional law? – No: Laskin, Dickson, Beetz, Estey, Mc. Intyre, Chouinard & Lamer – Yes: Martland & Ritchie
Alan Cairns: three equalities [Kit, 138] • Citizens • Provinces • Two nations • Debate over assymetrical federalism • Charter: a constraint on federalism • Charter’s popularity in Quebec
Meech Lake Accord – Compensation provided for any province opting out of any constitional amenendment under 7 -50 formula that transfers prov powers to Ottawa. • Meech Lake Accord: – “distinct society” clause – “constitutionalize” immigration agreements – Provinces submit names for vacancies to SCC – Any province can opt out of a shared cost program in areas of prov. jurisdiction & receive compensation if the province operates a similar program that meets “national standards. ” • Additions: – Senate reform: prov’s nominate Senators to begin with – First ministers conf on economy annually – Annual constitutional conferences to discuss Senate reform, fisheries and other matters.
Charlottetown Accord • Everything in Meech Lake plus: – Canada Clause – Aboriginal rights strengthened, including right to negotiate selfgovernment – Non-justiciable social charter – Measures to strengthen s. 121 – Senate reform: 6 elected senators from each province, and 1 from each Territory, plus Aboriginal representation – SCC appointments: feds can appoint if provinces don’t nominate. – Guarantee of 25% of seats in H of C for Quebec – Prov. authority in areas of prov. Jurisdiction strengthened. – Fed powers of disallowance and reservation repealed – Fed declaratory power limited; require prov. consent.
Social Union Framework Agreement (1999) • All Canadians are equal • Needs must be met everywhere • Social programs should be adequate and sustainable • Promote mobility within Canada • Public accountability and transparency • Evaluate results of programs • Participative democracy • Funding predictability • Fed-prov consultation, not unilateral action
Québec Secession Reference (1998) • Stéphane Dion – Critical of “yes” side in 1995 referendum – Asked by PM to become Min of Intergovernmental Affairs in 1996 & context by -election – Proponent of “Plan B: ” fed gov’t should be active in opposing Québec separatism. • Guy Bertrand (a former sovereignist leader in Québec turned federalist) – began a litigation process in which challenged the Québec government’s attempts to institute sovereignty on Charter of Rights grounds. – Québec government tried to block Bertrand’s challenge, so fed gov’t continued the litigation through the reference (part of “Plan B”)
Québec Secession Reference (2) • Argued in Feb, 1998 – Québec gov’t wouldn’t participate, so SCC appointed André Joli-Cœur as amicus curiae. – Amicus argued that reference jurisdiction of SCC is ultra vires. • Can an appeal court be given original jurisdiction? Yes. • Can an appeal court advise? In Canada, yes (despite rule about no specific mention). • Justiciability: – Too theoretical? – Too political? – Not ripe? • Canada does not have as strict a separation of powers as U. S. • Advisory opinion different from a litigated case.
Québec Secession Reference (3) • Questions: – 1. Under Can Const, can Québec secede unilaterally, without a constitutional amendment? – 2. Under Int law, can Québec secede unilaterally? – 3. If conflict between (1) and (2), which takes precedence? • Why did SCC write such a lengthy judgment? • 1. Can Québec secede unilaterally under constitution? – Arguments in favour based on democracy. – What is democracy? – Our democracy is based on shared values, and unilateral secession puts these at risk. Thus, duty to negotiate. – Was SCC too activist, or not activist enough re “clear question” and “clear majority”?
Québec Secession Reference (4) • 2. Does international law give Québec the right to secede unilaterlally? – Amicus: right to selfdetermination belongs to all “peoples. ” – Do Québeckers constitute a “people”? – SCC: not necessary to decide, because even if yes, the right only exists where a “people” is mistreated. • right to only arises under international law where “a people” is governed as part of a colonial empire, “is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. ”
Québec Secession Reference (5) • Spring of 2000: Bill C-20: “An Act to give effect to the requirement for clarity…. ” – Within 30 days of a prov legislature tabling a referendum question, H. of C. must declare whether question is “clear. ” – If question considered “clear, ” and a majority votes in favour, H of C must determine whether majority is “clear. ” Consider: • • Size of majority Proportion voting Views of political parties View of Senate
Québec Secession Reference (6) • After SCC decision: PQ gov’t seemed to support decision. • Jacques-Yvan Morin (former Québec intergovernmental affairs minister): SCC decision means feds can’t refuse to negotiate, but can put up many obstacles to Quebec secession. • Kenneth Mc. Roberts: The Trudeau strategy for Canadian unity has failed. • Hogg: – Québec can no longer claim that it can secede unilaterally. – The “duty to negotiate” secession in face of a “clear majority” vote in favour in a province is unprecedented in world history.
Gall – last chapter • New directions: – Is law the best way to implement a public policy? – If so, think about federalism issues in potential litigation. What mechanisms are there for cooperation? – Technology • A tool for judges • Education for lawyers and judges • Electronic law library • Public image of legal profession – Public education – Legal accountability – Case management, ADR, mediation – Legal fees – Legal insurance – Continuing education (prof. Dev. LLM at Osgoode) – Alternative careers for lawyers – Law reform (Canada Law Commission)
W. A. Bogart, Courts & Country, Ch 4 (The administrative state and judicial review, kit 182) • Do courts promote a fairer society, or act as a roadblock to advancement? – Federal administrative agencies (eg. CRTC, Hum Rts Comm): 640. – Ontario: 36 reg bodies (eg. Lab rels bd, WSIB – ½ million claims/yr), 44 licensing appeal tribunals, 8 compensation boards, 19 arbitration agencies, 95 advisory boards. • Leg’s try to keep courts from supervising admin agencies too closely. Why? • Should courts intervene in admin trib’s rarely, when there are clear issues of fairness? • Bogart: courts may be good, at times, in signaling unfairness, but are not usually good at finding solutions.
Review for Exam • See review notes on web page
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