You should keep escalating that part of the ceremony every year. Throw cream pies at him. Scatter marbles in his path. Launch a cow at him.
Give him a wedgie.
I’m sure that’s true — although I still have to wonder, at least a little, what would happen if this were really tested. What happens if Parliament passes a bill that the UK strongly considers to be against its interests? Has that happened yet?
If you have a National Court deciding matters of a law which is exclusive to a sub national entity one of the problems is that that particular dicta becomes entrenched and it becomes impossible for the sub national Courts and difficult for the sub-national legislature to reverse. That is one of the reasons I have heard for the reluctance to hear purely provincial matters. How does the SCC handle that concern.
I believe that in the UK House of Commons, it is traditional to slam the door in his face. I don’t know if we do that here, though.
And I’m unsure if you could give him a wedgie, given the uniform that he wears. 
Can someone comment, in general terms, on how the powers of the provinces compare to those of the American states? We’ve already seen one major difference in this thread–that in Canada the federal government handles criminal law and criminal prosecutions. Are there other major differences? How do provincial spending and taxation compare to the federal government? In the US state and local governments account for about one fourth of all government spending.
Well, as a result of patriating the Constitution, the UK now has no more political influence upon Canada than Washington does (or Paris, Rome, Buenos Aires, Canberra, etc.). So if the UK didn’t like what the Canadian Parliament was doing, it would simply have to deal. Oh, it might make its displeasure known through diplomatic channels, but that’s all it could do.
Remember, the Queen’s role in Canada is not as Queen of the UK–it is as Queen of Canada. So, for Canadian constitutional purposes, the Queen is not part of the UK at all. She just happens to live there; and so she has a representative in Canada: the GG.
That being said, however, we have had one constitutional crisis where the GG has refused a request from the Canadian Prime Minister: the King-Byng Affair. I don’t have time right now to explain it, but the Wikipedia link is good, and I’m sure that one of my colleagues can fill in any details until I return.
When speaking about the realationship between the Crown and Canada, the Crown refers to the legal person of Queen of Canada, not the Queen of England or any other nation. The Queen of Canada is part of Canadian Parliament (and the provincial Parliaments), and also holds Royal prerogative powers. It happens that the same physical person is Queen of both these nations and quite a few others, but her role as Queen of Canada has nothing in law to do with England, and therefore no entity in England other than the Queen of Canada who happens to live in England has any authority in Canada. When it comes to the Crown, the only external constraint that I can think of is that Canada would have to obtain the consent of the UK and all the other commonwealth realms before monkeying with the line of royal succession, but since Canada can turf its monarchy (and install another one if is wishes), that issue is moot.
In 1922, Canada asserted diplomatic and military independence (Chanak crisis). In 1931, Canada obtained much but not all of its legislative independance (Statute of Westminster) – the bump in the road was failure to agree upon a formula for amending the constitution. In 1949 Canada’s top level of appeal ceased to be the Judicial Committee of the British House of Lords. In 1982 upon agreeing on a formula for amending the constitution, Canada obtained all of its legislative independance (Patriation of the Constitution). Since then, England has no say at all in Canadian affairs.
I wonder if your teacher might have been thinking of pre-1949 Canada when the Law Lords were the highest level of appeal for Canadian cases, or might have been thinking of pre-1982 Canada in which Canada still did not have the final say in amending its own constitution, or might have confused Canada with another Commonwealth nation?
Actually, its sort of messy when it comes to criminal prosecutions. The Criminal Code of Canada is exclusively the criminal law across all of Canada, but its application is usually handled provincially. For example, the prosecutors are provincial employees, and the courts are either provincial courts or provincially funded superior courts.
I just have to say, I am really enjoying this thread. Thanks for starting it!
Well, Federal judges here are certainly not supposed to favor Federal interests over state interests. Their oath is to the U.S. Constitution (as indeed are the oaths of all Federal, state and local officeholders). Have the SCC justices from Quebec ever credibly been accused of favoring Quebec interests over national interests?
Perhaps the GG could construct some sort of large wooden rabbit to sneak into the chamber. Or, I suppose, this being Canada, a moose or a beaver.
Mind you, møøse bites can be pretty nasty…
No, IMHO.
Thanks Northern Piper! When we discussed native title, Canada and New Zealand were examples given of places that did it better than we did. (Because hey, we didn’t, is the problem.)
Another question please. Does Canada still have a constitutional right of appeal to the Privvy Council? (Or did it ever, I suppose?) Is that right still exercised?
In Australia, after the Australia Acts in 1986, technically we can still go to the Privvy Council but it’s nearly impossible now to bring about a circumstance in which that happens anymore, so de facto it doesn’t happen. What happens in Canada? Is the SCC the final arbiter?
Thanks, this is making me law nerd squee all over the place.
No, appeals to the Privy Council in the UK are no longer allowed. As Muffin mentioned earlier, the SCC has been the highest court of appeal since 1949.
The Constitution is–and to the best of my knowledge, always was–silent on the matter of appeal to the Privy Council, stating only that Parliament can provide for a general court of appeal (Constitution s. 101). Appeals to the Privy Council occurred because they had always occurred–this was one of the “traditions” that are not written down, much like the Constitution is silent on the matter of a Prime Minister.
But we also have the Supreme Court Act, R.S.C., 1985, c. S-26; which states the following at s. 52:
So, with the Constitution silent on the matter of appeal to the Privy Council, and the Supreme Court Act stating that the SCC has the final word, it would seem to me that any appeals to the Privy Council are impossible.
Anyone care to tackle the rest of these?
With respect to Nova Scotia waving bye-bye, have a look at Reference re Secession of Quebec, [1998] 2 SCR 217, which discusses the national and international law issues. It gets into the difference between acting on a simple majority verses needing to have more than a simple majority. It also gets into fundamentals of the unwritten component of our constitution.
Another case that considers how the unwritten component of our constitution can fill in gaps that the written constitution does not cover is Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3.
I’ll try this one:
“Has there been any move to explicitly recognize the office and role of the PM in the Constitution?”
No. But I don’t believe there is a need to. The key lies in the following part of the preamble to the Constitution:
Emphasis added. It is this “similar in principle” concept that carries the structure of the UK Parliament into Canada’s. Since the UK government is formed by the person who has the confidence of the House of Commons, and is styled the “Prime Minister”; so too is the Canadian government. So the concept of a Prime Minister as head of government is not explicitly stated in our Constitution, but it can be inferred.
Besides, amending our Constitution is probably not something most Canadians would like to see. We have had two incidents so far where amendments have been tried; each time, the amendments failed, and nearly ripped the country apart. That may have had something to do with the subject matter of the amendments (for a quick explanation of the amendments, see the Wikipedia pages on the Meech Lake Accord and the Charlottetown Accord); but I would suggest that they also had the effect of making Canadians extremely leery of Constitutional amendments. Given this general unease about amendments, I think it is unlikely that Canadians would support amending the Constitution just to mention the role and office of the Prime Minister. Or, in other words, it ain’t broke, so we don’t need to fix it.
Hey, some of us have day jobs!
When he was a political activist but not elected to any office, Mr Harper signed the “firewall letter”, urging the provincial government of Alberta to take whatever steps possible, within the existing constitutional framework, to reduce federal influence in Alberta. Since becoming PM, Mr Harper has not tried to implement that policy directly, but as a small-c conservative, many of his government’s policies have been aimed at reducing the federal footprint generally. However, nothing like Rick Perry’s comments on illegitimate federal government powers in the US.
As a matter of law, the Gov Gen does has reserve powers, notably the power to appoint the PM and the power to dissolve. However, as a practical matter, the Gov Gen never exercises those powers except as determined by the electorate (in the case of appointing the PM) or on the advice of the PM (in the case of dissolution).
In South Africa a lot of the Bill of Rights was basically borrowed wholesale from your Charter. I know that the South African courts often look at human rights jurisprudence from other countries to help interpret the Bill of Rights. (And, perhaps unsurprisingly, Canada is one of the countries most commonly referred to.) Do Canadian courts do the same thing when interpreting the Charter?
Yes, and not just Charter cases or human rights cases. Any sort of case might involve the court considering foreign decisions or writings of foreign legal authorities/authors.