THE CANADIAN FEDERALISM BRITISH NORT AMERICA ACT

THE CANADIAN FEDERALISM

BRITISH NORT AMERICA ACT 1867 a British statute creates the federal dominion of Canada 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 Canada British Government has the power to disallowance and reservation The Queen appoints the Governor General

BRITISH NORT AMERICA ACT 1867 does not codify all the constitutional rules of the dominion no amending clause no bill of rights the 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 formula introduces 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 1982 The 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 > the Government is responsible to the elective Assembly [confidence rule] Prime Minister > Leader of the majority party Head 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 branch Prime Minister > Leader of the majority party Ministers > Individual responsibility accountability responsibility Cabinet confidence rule unanimity rule confidentiality rule

the legislative branch Parliament Queen Senate House of Commons

house of commons 307 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 advance fixed term parliament (statute) > election every 4 years the third monday in October

senate not elected Chamber > members are appointed by the Governor General every senator stays in office until the age 75 > continuous Chamber 24 representatives for every area (Ontario, Quebec, Maritime and West provinces) + 3 for the Territories not 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 general BNA 1867 > the Queen has the executive power > Governor General no 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 Chambers to appoint senators to appoint ministers

governor general Personal prerogatives (no advice) the appointment of the Prime Minister the dismissal of the Prime Minister the dissolution of the House od Commons

CANADA IS A QUASIFEDERALISM (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 dominion no special procedure > flexible constitutions limitations 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 provinces Disallowance power is not already used The Lieutenant Governors act on the advice of the provincial Cabinets The 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 government the 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 QUASIFEDERALISM? America federalism was a counter-model Civil war > too many state powers Different solution to the problem of sovereignty Strong federal government is the answer

FEDERAL COMPETENCES Unity of the federal state Army and defense Economy Infrastructure and communication NO treaty making and implementing power

THE SEPARATION OF LEGISLATIVE POWER IN THE COURTS Federalism (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 COURTS Neither 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 COURTS 1867 -1949 [JCPC] > a narrow interpretation of the federal powers and a wide interpretation of the provincial powers 1949 -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 92 Emergency 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 provinces 1 from the Atlantic provinces the last Court of Appeal for civil, criminal and constitutional cases reference 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 controversy An 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 Parliament Statute 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 Court 1. 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 formula Introduces 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 provinces For 5 subjects: 1. the office of the Queen, the Governor General and the Lieutenant Governor of a province the 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 Canada 2. 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 RIGHT When 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 province A 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 CLAUSE The result of a compromise during the patriation process The effects of the declaration last 5 years and can be renewed only once The legislature must declare expressly the use of the override clause Some charter rights can be overriden fundamental freedoms legal rights equality rights

OVERRIDE CLAUSE: AN EVALUATION Practice Few used outside Quebec Used by Quebec as instrument of political opposition Parliamentary sovereignty v. Constitution Parliament 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 provinces Charlottetown Agreement (1992)*** > referendum defeated Parti Québécois (1994) > referendum on sovereignty defeated [50, 6% / 49, 4%] (1995) > Secession Reference (1998) The federal Parliament passes a 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 REFERENCE Could 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 provinces A 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 2000 The 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 secession The 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 relevant Under 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 minority The majority of the catholics live in Quebec > In Canada catholics are a minority Civil law tradition due to the French colony that UK obtained with the Treaty of Paris

QUEBEC HISTORY Treaty 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 ACT Ministers of Government cannot submit resolutions on constitutional amendments without the consent of: Ontario Quebec British Columbia 2 of the Atlantic Provinces 2 of the Western Provinces Is it a constitutional statute? maybe not, because it is an ordinary statute that indirectly “modify” the amending formula Nevertheless it is a statute able to influence the Government decisions concerning the constitutional amendments

ABORIGINAL PEOPLE Sect. 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 rights One national policy in this matter Indians = aboriginal people who had been living there long before European contact > Indians + Métis + Inuit (sect. 35 Charter)

ABORIGINAL PEOPLE Three territories - created by law - where the majority of the aboriginal people live Elective and legislative Assemblies > separation of legislative power similar to that in force between Federation and Provinces North West (1875) Yukon (1989) Nunavut (1994)