To mark the day, some of us Canuck law-talkin’ guys have decided to start a thread for questions about the Constitution of Canada. Spoons and Malthus are on-side, and I hope Muffin will join in as well. Any other Canuck law-talkin’ guys (or gals, of course) who want to join in, please do so.
We just have two guiding principles for this thread: we want it mainly fact-based, to keep it in GQ, and we want to avoid derailing it with debates (west v. east, Quebec v. ROC, francos v. anglos, queen v. republic, and so on). Nothing wrong with those debates, but we don’t want them to derail this thread. If you want to start a debate on one of those issues, or if one of them starts to arise in the thread, please take it to GD or IMHO, as appropriate.
And of course the usual caveat: this is not meant as legal advice, just a general discussion on matters of public interest. If you need legal advice on whether your hockey team playing on an outdoor rink that crosses a provincial boundary is a federal or provincial matter, please consult a division of powers lawyer in your province.
So, with those ground rules in mind: who’s up first? what burning question have you always had about the Constitution of Canada? law-talkin’guys (and gals) are standing by to take your calls! here’s your chance!
[ol]
[li]Do the provinces have their own constitutions, or is that unnecessary (or even impossible) with Canada’s flavor of federalism?[/li][li]Did anything else of legal importance change in 1982, with the new constitution, besides your detaching yourselves from Britain (mostly)?[/li][li]Is there any way for you guys to impeach or remove the Governor General, if he gets on your nerves too much?[/li][li]What are some of the thornier issues the Supreme Court has had to address since 1982?[/li][/ol]
Woah, to use Canadian units, that’s a metric shitload of questions.
I’ll start with the first.
There has been some movements in Quebec to enact a formal provincial constitution:
These have not been carried out.
Currently, the situation is this: each province has a set of legislation and laws that are functionally deemed “consitutional”, and which are subordinate to the Canadian constitution.
The situation was explained by the Supreme Court as follows:
Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2
Does the “Notwithstanding Clause” eviscerate, if not make impotent, the rest of the Constitution?
At the end of the day, as evidenced by that clause, those who drafted the Constitution felt that politicians should trump the judiciary as to what constitutes (most of) the rights of Canadians. In my mind, that is unpardonable and helps makes the answer to the above, ‘yes’.
ETA: I assume you had a pool as to how long it would take before that clause was brought up.
I think one of the best questions for a non-Canadian is, “What exactly is it?”
If you were to ask me about the US Constitution, I could hand you a leaflet including seven initial Articles and 27 Amendments, and say, “This is the text of our Constitution,” and then point you to that massive rack of tomes and say, “And these volumes detail how it has been explicated in case law.”
I am under the impression that, like Sweden, Canada has a Constitution consisting of a few statutes enacted over a century and a half and portmanteaued together into a coherent whole, that being the equivalent of my leaflet from the previous paragraph. Could you briefly describe the Canadian Constitution in those terms, what enactments go together to comprise it and how they work together?
In practical terms, the actual use of the notwithstanding clause has been pretty minimal. The general feeling is that using it carries such a hefty political price that it is unlikely to be used much in the future.
So, practically it does not (or at least it has not) made the Charter impotent, as much government legislation is in fact struck down on Charter grounds, and the various Canadian legislatures have only very rarely invoked the clause to protect it. Even Quebec has come around to accepting it and redrafted its language laws so as to avoid Charter attack, rather than continue to rely on the clause.
I suspect this result is a simple feature of the general acceptance of Charter values in Canada since its adoption. Now, invoking the “notwithstanding” clause is an open admission that what you are trying to do is something somewhat nefarious - robbing someone of their Charter rights - and so, legislatures are hesitant to do it.
Ignoring for the moment issues of repatriation (a complication caused by Canada being originally that odd creature, a self-governing dominion), the Canadian consitution really has two basic functioning parts that get referenced in legal cases a lot:
(1) The part that defines the division of powers between the federal and provincial governments - from the Constitution Act of 1867 (the British North America Act); and
(2) the Charter of Rights and Freedoms, or “Charter” for short, that as the title states defines individual citizen’s rights, etc. which was introduced in 1982 when the constitution was repatriated.
There is of course lots of other stuff - the “Constitution of Canada” is defined in the 1982 Constitution Act as including a whole list of Acts and Orders - but between those two sources you have 99.9% of what constitutes the actual, day-to-day important bits of the Constitution. Much of the other stuff is significant only historically. For example, ss. 52(2) of the Constitution Act references a schedule containing bits like " Order of Her Majesty in Council admitting Rupert’s Land and the North-Western Territory into the union, dated the 23rd day of June, 1870". This is a “constitutional” document, but really of historic interest.
For most possible amendments, you need an act passed by the Parliament of Canada and an identical act passed by two thirds of the provinces (meaning, now, 7 out of 10) that represent at least 50% of the country’s population.
If the amendment is specific to a province, it requires only passage by the federal government and the province in question (this has been used, in fact.)
For a few specific things, the act must be passed by Parliament and by all the provinces. Things requiring unanomity are listed in Section 41 of the Constitution Act and include big things like the monarchy and the composition of the Supreme Court and stuff.
Thank you - what you say makes perfect sense and I agree (but must confess that my ability to agree is rather limited given my rather limited understanding of such things).
I guess my point, notwithstanding that invocation of the Notwithstanding Clause is, and will likely remain, rather rare, is that its very existence sullies and demeans the whole document. That it even exists, ever threatening to trample the rights of the individual, is a rogue elephant in the room of the Canadian justice system.
I suppose that one reply in defense of the Clause would be that any politician or government that invokes it risks being summarily booted out at the next election. What that argument fails to address, however, is that the rights of any minority (especially a minority of one) would still be left unprotected. A facile example: The government invokes the clause to ban or outlaw the practice of a particular religion. Is it not conceivable that the majority of the population might support such an outrage and heartily re-endorse the ruling party at the next election?
Remember that the Notwithstanding Clause (s. 33 of the Charter, for those who wish to reference it) has its limitations: it can only be invoked for a period of five years, after which its use must be renewed; and it can only be used to override rights granted in ss. 2 through 7, and in s. 15. In other words, it is not indefinite, and only certain Charter rights can be overridden. Or, for example, it cannot be used to make a law passed by a province the supreme law of the land (counter to Charter s. 1), or a law that permits warrantless searches (counter to Charter s. 8).
Karl, your religion example would fall under s. 2(a); and while it is technically possible to override one’s freedom of conscience and religion rights by invoking the Notwithstanding Clause, I suppose, I’d suggest that it would be unlikely. So far, the use (and proposed use) of the Notwithstanding Clause has been for things that many Canadians disagree with–the most notable use has been the restriction of expression in Quebec caused by French language laws. A proposed use was here in Alberta, where the provincial government wanted to enact a law defining marriage as between a man and a woman (i.e. gay marriage would be illegal); and while Alberta considered using the Notwithstanding Clause, it eventually didn’t–the matter was taken out of Alberta’s hands when the Supreme Court of Canada ruled that Parliament had exclusive authority to define marriage (see Reference re Same-Sex Marriage [2004] 3 S.C.R. 698). Like all the other provinces, Alberta had to allow gay marriage.
But here are two examples that, while popular with some, tended to leave a bad taste in the mouths of many more, precisely because the Notwithstanding Clause removes Charter rights. So, while your example is technically possible, I must agree with Malthus’ sentiment, stated upthread: “Now, invoking the “notwithstanding” clause is an open admission that what you are trying to do is something somewhat nefarious - robbing someone of their Charter rights - and so, legislatures are hesitant to do it.”
“Ask the” threads usually go in MPSIMS, so I’m moving this there from GQ. However, please note the request of the OP that the thread be kept mainly factual, and refrain from starting debates.
It’s been my understanding that Canadian law is fairly uniform throughout the country, at least when it comes to criminal matters (Criminal Code of Canada), rather than the 50-odd systems that you have in the US. Do you have many conflict of law issues (e.g. John lives in Ontario and Bill lives in Nova Scotia, and they sign a contract concerning property located in Alberta while physically present in Prince Edward Island, and then they get into a dispute and Bill wants to sue under Alberta or Nova Scotia law because it favors his position but John will hear of no such thing and insists that because the contract was signed in PEI, then PEI law (which would favor John’s position) must be followed, or do you have issues like “This Ultra-9000 Plasma Pistol is 100% legal in Ontario, Quebec, and five cities in New Brunswick, but if they catch you with it in in any of the western provinces it’s a 20 year felony and in Nova Scotia it’s a capital offense!”
This hasn’t been addressed, so let’s deal with it.
Short answer: No.
Long answer: No, but it doesn’t really matter. The Governor-General (GG) really isn’t empowered under the Constitution to do much where he could get on somebody’s nerves. Yes, he signs bills passed by the House of Commons and the Senate into law, but his function there is more of a rubber stamp. He does not interfere in Parliament because he has no influence there. (IIRC, it is traditional, when when the GG summons the Commons to the Senate chamber to hear the Speech from the Throne, to have the Commons ignore his messenger’s first two requests, coming only upon the third request–this symbolizes his lack of influence on and power over the Commons.)
But the GG is pleased and proud to attend at this important event, and at that ceremony, and to host state dinners, and to award honours to outstanding Canadians. I don’t know, but I’d suggest that such duties are what takes up most of his time.
In brief, his powers under the constitution are extremely limited; including, I’d suggest, the power to get on Canadians’ nerves.
The Criminal Code is a federal statute that applies to all of Canada. Provinces have statutes that deal with various non-criminal offences (parking tickets, etc.), but not criminal matters.
Our constitution sets out which issues are under federal jursdiction and which issues are under provincial jurisdiction. When there is overlap, usually the feds trump.
Yes, conflict of laws issues can arise between juristictions in private matters (e.g. contract disputes or marital property issues).
There is a lot of cross-pollination in statute drafting and in judicial decisions that leads to a fair bit of uniformity between provincial laws under a common law system that arose out of British common law. The exception is Quebec, which has it’s own civil law system that originated out of French civil law.
There is a difference between the way things are officially set out, and the way things really work. Part of our constitution is made of up a heap of documents, but part of it is formed by the way things are done.
Parliament is composed of the House of Commons (we elect Members of Parliament to sit in the House of Commons), the Senate (the Queen appoints senators on the advice of the Prime Minister), and the Crown (presently, the Queen, as represented in Canada by the Governor General). Good luck in trying to find the source of the authority for the existence of the Prime Minister in our constitutional documents.
The way it works with the Governor General is that the Crown is expected to do what the government (through the Prime Minister) advises it to do. If the Crown fails to fall in line, there will be a constitutional crisis. Theoretically, the Crown trumps the government, but in reality it is quite the other way around.
The balance between the Crown and the government can come in handy when it comes time to form a government or toss out a government. If a party or a coalition of parties holds the confidence of the House, it can ask the Crown to let it form a government. If a government no longer holds the confidence of the House, the Governor General can dissolve Parliament and force an election (although the Prime Minister should ask the Governor General to dissolve Parliament, if the Prime Minister fails to do so, the Governor General should step in and act without the request – again forcing a constitutional crisis).
Understand first, that the Supreme Court of Canada is not limited to constitutional matters–matters of private law can be appealed to it as well. I’m going to assume, based on your given date of 1982, that you’re referring to constitutional matters however. So let’s look at those.
In my opinion, the thornier ones would include the following:
– Reference re Secession of Quebec, [1998] 2 S.C.R. 217: Under the Constitution, can Quebec unilaterally decide to secede from Canada? (Answer: No. But if Quebec really wanted to secede, and Quebecers overwhelmingly voted to do so, Canada couldn’t justifiably deny Quebec the right to do so.)
– Vriend v. Alberta, [1998] 1 S.C.R. 493. Can gays be discriminated against, as they are not a protected class under human rights legislation? (Answer: No. Just because the legislators did not include homosexuality alongside race, religion, disability, etc., does not mean that equality rights under Charter s. 15 can be ignored. Homosexuals are equal and can be “read into” the legislation as a protected class.)
– R. v. Morgentaler, [1988] 1 S.C.R. 30. Does including abortion in the Criminal Code violate rights granted under the Charter? (Answer: Yes. Criminalizing abortion interferes with a woman’s “life, liberty, and security of the person” rights under Charter s. 7.)
Just a few examples for now. I am sure that my colleagues can provide more.
