Ask the Canuck law-talkin' guys about the Constitution of Canada!

Couldn’t the prime minister simply have the governor general dismissed, though? I mean, the Queen could decide to annoy people, but that’s also pretty unlikely. IIRC, there’s a five year period where provincial lieutenant governors are harder to fire, but I don’t think the governor general gets that privilege.

So its been thirty years. Major question; was it really needed? After the Statute of Westminster, Canada was functionally independent and the BNA 1867 (although without a Charter) was certainly a Constitution and the various later BNA’s made appropriate change to the original. Canada seems to have managed not to be a rouge state.

I thought Lieutenant Governors (Lieutenants Governor?) are appoint by the Governor General (on advice of PM) in the Queen’s name and serves at the pleause of the federal government. So the PM can remove them just as easily as he can the GG. I guess this also means the PM can (via the GG) instruct an LG to intervene in provincial politics in a constitutional crisis (like refusing assent and disolving the Legislative Assembly if it trys to unilaterily declare PEI independent and dismissing the provincial cabinet, though that would probally just make things worse). Is any of that incorrect?

Back to the OP, is the Act of Settlement part of the Canadian Constition? If so can it be changed by an act of parliament alone, does one of the amending formulae need to be used (if so which one)? I asked 'cause supposedly the PMs of the Commonwealth Realms have agreeded to switch from male-preference primogenture to equal primogeniture and that’s probally going to be an issue if Prince William’s first-born is a girl.

That’s not a bad summary already, Polycarp. As Malthus mentioned, there are two major Acts: the Constitution Act, 1867 and the Constitution Act, 1982. They are the two longest Acts which make up the Constitution. The 1867 Act created the country and allocates legislative authority between the federal Parliament and the provincial legislatures. The 1982 Act contains the Charter, which is the equivalent to the US Bill of Rights, and also implemented a domestic amending formula, replacing the power of the British Parliament to amend our Constitution. This is commonly called the “patriation” of the Constitution, by ending the last vestiges of British authority.

Wikipedia has a nice list of the various Acts which make up the Constitution: List of Canadian Constitutional Documents. If you take a look at that list, you’ll see that some of them are amendments to the 1867 Act; some of them added new territories and provinces to Canada; some dealt with boundary changes; some amended particular provisions of the Constitution relating only to specific provinces; some amended the 1982 Ace; and others dealt with the number and distribution of seats in the House of Commons.

While it may look like a longer list than the US federal Constitution, we include things in our definition of the Constitution that Americans do not - for instance, the Louisiana Purchase and the North-West Ordinance are not considered part of the US federal Constitution, nor are the Congressional acts which added new states, or changed the method for allocating seats in the House of Representatives. The equivalent Canadian provisions are considered part of our Constitution, so the list is longer.

This statement highlights the different way we think about our Constitutions. What you are summarising is the federal Constitution. While it places limits on how the states govern themselves, it does not spell out the structure of the states, the legislative powers, the state bills of rights, and so on. So to have a complete picture of how Americans govern themselves, it is not sufficient simply to look at the federal Constitution - you also have to look at the 50 state constitutions as well.

That’s not how it works in Canada. The term ‘Canada’ has two different meanings in our Constitution: in some contexts, it means the country of Canada, including both the federal government and the provincial governments, but in other contexts, it means the federal government. When we say the “Constitution of Canada” in this thread, we’re talking about the Constitution of the country as a whole, not just the constitution of the federal government. When we look at the provisions of the Constitution of Canada, we are looking at the provisions of both the federal and provincial governments - so in that sense, it is a much more compact and integrated constitutional system than in the United States, in my opinion, which does not neatly integrate the federal and state constitutions into one system the way the Canadian Constitution does.

Depends what part of the organization of provincial government you mean.

The basic structure of the provincial Legislatures is set out in the Constitution Act, 1867. They are composed of an elected house (different names in different provinces) and the Crown. The provinces cannot unilaterally change that basic structure, because it is part of the Constitution of Canada, not just the provincial constitutions. (Although some provinces did have upper houses and have abolished them.) In particular, they cannot abolish the powers of the Crown in the legislative branch.

As well, the legislative powers of the provincial governments are set out in the Constitution Act, 1867 (ss. 92 to 95). The provinces cannot unilaterally change their legislative powers, since the allocation of legislative power is part of the Constitution of Canada as a whole.

However, things like the size of the elected house, the electoral process, the organization of the executive branch of the provincial government and so on, can be amended by the provincial Legislatures at will.

Yes. The Constitution Act, 1982 added a major new head of provincial power, s 92A, dealing with provincial regulation of non-renewable natural resources, and in the process overturning the law as declared by the Supreme Court in a couple of major cases in the 70s. As well, the Constitution Act, 1982 entrenched aboriginal and treaty rights in the Constitution, via s. 35, which is not part of the Charter.

Yes. The Governor General is appointed by Her Majesty, and serves at Her Majesty’s pleasure. Her Majesty, by constitutional convention, acts on the advice of the Prime Minister of Canada. if the Prime Minister believes that the GovGen should be removed from office, he could advise Her Majesty to pull the plug.

The provision is actually a lot weaker than I remembered. I had thought that for their first five years in office they could only be removed with the consent of parliament, but parliament just has to be told of the reasons for the dismissal.

The Constitution is mundane? pointless?!? I’m crushed!

As Spoons mentions, our Supreme Court is a court of general appeal jurisdiction, giving it much broader powers than the SCOTUS. That means that our Court can rule on questions of provincial law, not just federal and constitutional matters. The Court will interpret the common law uniformly across the country, and will try to interpret provincial statutes consistently, if possible, creating greater uniformity of law across Canada (with the exception of Quebec civil law, of course).

Our Federal Court system does not have the equivalent of diversity jurisdiction, so civil matters governed by provincial law must be dealt with in the provincial courts, even when there are significant inter-provincial implications. However, the provincial Legislatures have been passing statutes regulating when the courts of a particular province should assume jurisdiction over a case, or should cede jurisdiction to the courts of another province which has a better claim to hear the case.

Since the provinces don’t have criminal law power, they cannot criminalise a particular weapon, nor can there be this range of sentences.

Except the one exception in the Statute of Westminster for Canada was the BNA Act itself - Canada could not amend its own constitution. Only the British Parliament could amend the major provisions of our constitution. There was no problem getting Westminster to amend it if there was unanimous consent from Parliament and the provinces, but there was a real uncertainty what the British government should do if not all of the provinces supported the proposed amendment. Effectively that meant that Canada’s constitutional amending formula was unanimity, which is very difficult to achieve.

There was an article that appeared today that outlined how much uncertainty there was in the British government in 1982 whether they should pass the amendments to patriate the Constitution: Thatcher cabinet looked at rejecting Canadian Charter of Rights plan So long as another country had that sort of control, we were lacking full independence.

Am I correct that the jurisdiction of Canadian federal courts solely encompasses disputes arising under federal law? That is to say, there is no equivalent to what American federal courts call diversity jurisdiction, whereby a citizen of one state can sue a citizen of another state in federal court for claims arising purely under state law?

Yes. Canadian federal courts deal with matters that are purely within federal jurisdiction: disputes arising under the Income Tax Act, for example. They will not involve themselves with interprovincial disputes arising out of private law matters, as your example suggests. The interprovincial matter would end up being adjudicated under the laws of a particular province, according to conflict of laws rules. (See, for example, the Tolofson Rule.)

As an Australian student, we do consider some Canadian cases from time to time.

What provisions for aboriginal people are in the Canadian constitution? Was Canada ever considered terra nullius?

Aside from the tremendous importance of full independence, the biggie was the Charter, which has helped make major differences in our society. For example, striking down the Lord’s Day Act, striking down the Criminal Code provision against, and forcing the government’s hand resulting in same sex marriage.

The federal Parliament has exclusive jurisdiction to legislate for “Indians, and lands reserved for Indians.” (Constitution Act, 1867, s. 91(24)). That means that any questions of Indian status, aboriginal rights, treaties and reserve land or aboriginal title can only be dealt with through federal legislations.

The Charter, s. 25, states that aboriginal rights recognised by the Royal Proclamation of 1763 or which exist by current treaties or land claims agreements are not affected by the Charter. The purpose of this provision was to ensure that the Charter, particularly the equality clause, would not be interpreted in a way that cast into doubt those settled rights, even though they have a strong race/ethnic base to them.

Section 35 of the Constitution Act, 1982, goes on to “recognise and affirm” all existing aboriginal and treaty rights, giving them constitutional protection.

Canada has not been considered terra nullius under British rule (don’t know if the issue ever came up under French rule prior to 1763). The Royal Proclamation of 1763 recognised that there could be no settlement of land held by aboriginal peoples without first having a treaty with them, entered into by the Crown - no-one else. That principle has been at the heart of dealings with the aboriginal peoples ever since, although not always implemented (British Columbia, for instance, tried to argue that it only applied to eastern Canada, not B.C., but the Supreme Court rejected that argument).

Interestingly, the Royal Proclamation also applied in the 13 colonies, and was one of the grievances of the colonists, because it clogged westward expansion. It’s an example of the divergence in our constitutional traditions: what was a grievance in the 13 colonies became part of the constitution of Canada, to provide constitutional protection to aboriginal peoples

Interesting thread - thanks!

  • What would need to be done, either on the Federal or the provincial level, if, say, Nova Scotia wanted to secede from Canada and join the United States?

  • Does the Governor General have any reserve powers at all, or is he (or she) entirely the PM’s puppet?

  • Does the current PM, Mr. Harper, have any views on the Constitution that anyone in this thread considers odd or out of the mainstream?

  • Has there been any move to explicitly recognize the office and role of the PM in the Constitution?

  • Is there broad consensus that patriation was a good thing, or is there anyone who still thinks that leaving the British Parliament with a role in Canadian governance - even a small one - had its uses?

  • What reform, if any, of the Senate would anyone in this thread support?

  • Given the different legal system in Quebec, is there a custom or requirement that at least one justice on the Supreme Court of Canada be from there?

  • Is there any actual risk of Quebec secession in the foreseeable future?

Best wishes to the law-talkin’ dudes and dudettes of the Great White North.

You don’t think small, do you !

On the fly at Timmies, so I’ll just answer the easy one - Supreme Court Act requires that three of the nine justices be from Quebec, and that requirement is protected by the Constitution Act 1982. Since the Court’s quorum is five, that means the Court could sit with a majority of Quebec judges on a matter dealing with Quebec’s Civil Code.

Thanks. SCC justices are, I presume, required to swear an oath to Canada and not to their province, I presume, to (hopefully) ensure they take a national and not a (heh) provincial view?

To neither, actually. They swear to perform their duties as a judge of the Court duly, faithfully and to the best of their skill and ability. I presume it’s a matter of judicial independence - they don’t swear allegiance to one of the government s that will appear before them. Their job is not to favour either the federal or the provincial governments particularly in a federal-provincial dispute.

When I was doing my LLB a few years back, one of my Tutors mentioned that (this was in the UK) that if Quebec attempts to leave Canada unilaterally after an unclear referendum result then it could potentially go to London. This was during a lecture on surviving constitutional relationship with the Dominions. I thought that this was bunk frankly, your opinion?

I must say I am surprised that the SCC agrees to hear cases on pure provincial law. In South Asia where the Federal structure has borrowed heavily from Canada, both the Pakistan and India SC have traditionally shown great reluctance to hear matters of pure provincial law*, unless they raise a constitutional question or the decision below is so perverse that it cannot be maintained.
*The exception is in Admin law.

[quote=“AK84, post:39, topic:619073”]

I thought that this was bunk frankly, your opinion?[/]Concur. When the British Parliament passed the Canada Act 1982, it surrendered all residual legislative authority over Canada. By constitutional convention, the Queen only acts on the advice of the Canadian Prime Minister in relation to Canadian matters. The British courts already held, at the time of the Patriation Debate, that the British government no longer has any role in advising Her Majesty on Canadian matters.

This was an issue when the SCC was set up - was it a federal court, like SCOTUS, or was it a more general court? The Constitution Act 1867 authorizes Parliament to create a “general court of appeal” like the House of Lords. Eventually Parliament settled on giving it the widest possible jurisdiction, partly as a measure to foster greater national unity. In the result, the SCC is one of the most powerful courts in the common law countries. It has more power within the Canadian court system than SCOTUS has in the US system, and more than the Supreme Court of the UK has in the British system.