Canada Act 1982

The Canada Act 1982 (1982 c. 11; French: Loi de 1982 sur le Canada) is an act of the Parliament of the United Kingdom which was passed (as stated in the preamble) at the request of the Parliament of Canada, to "patriate" Canada's constitution, ending the power of the British Parliament to amend the Constitution of Canada. The act also formally ended the "request and consent" provisions of the Statute of Westminster 1931 in relation to Canada, whereby the British parliament had a general power to pass laws extending to Canada at its own request.

Annexed as Schedule B to the act is the text of the Constitution Act, 1982, in both of Canada's official languages (i.e. English and French). Because of the requirements of official bilingualism, the body of the Canada Act itself is also set out in French in Schedule A to the act, which is declared by s. 3 to have "the same authority in Canada as the English version thereof".[1]

Canada Act 1982
Long titleAn Act to give effect to a request by the Senate and House of Commons of Canada.
Citation1982 c. 11
Territorial extentCanada
Dates
Royal assentMarch 29, 1982
Status: Current legislation
Text of statute as originally enacted
Revised text of statute as amended

History

Canada's modern political history as a union of previously separate provinces began with the British North America Act, 1867 (currently officially called in Canada the Constitution Act, 1867).[2] This act combined the Province of Canada (now Ontario and Quebec) with Nova Scotia and New Brunswick into a Dominion within the British Empire.[2] Canada adopted a Westminster style government with a Parliament of Canada. A Governor General fulfilled the constitutional duties of the British Sovereign on Canadian soil. Similar arrangements applied within each province.

Despite this autonomy, the United Kingdom still had the power to legislate for Canada. The Statute of Westminster 1931 removed this power of the British Parliament for Canada,[3] as well as for the other British Dominions (Australia [adopted 1942], the Irish Free State, New Zealand [adopted 1947], the Union of South Africa, and the Dominion of Newfoundland [never ratified, joined Canada in 1949]), unless (sec. 4) the Dominion requested and consented to Imperial legislation. The British North America (No. 2) Act, 1949 was also passed by the British Parliament, giving the Parliament of Canada significant constitutional amending powers.[4]

However, with Canada's agreement at the time, under the Statute of Westminster (sec. 7(1)) the British Parliament also retained the power to amend the key Canadian constitutional statutes, namely the British North America Acts.[5][6][7] In effect, an act of the British Parliament was required to make certain changes to the Canadian constitution.[8] Delay in the patriation of the Canadian constitution was due in large part to the lack of agreement concerning a method for amending the constitution that would be acceptable to all of the provinces, particularly Quebec.[9]

Enactment

The Canada Act 1982 was passed by the Parliament of the United Kingdom in response to the request from the Parliament of Canada to take over authority for amending its own constitution.[10][11] After unpromising negotiations with the provincial governments, Prime Minister Pierre Trudeau proclaimed that the federal Parliament would unilaterally patriate the constitution. After numerous references by the provinces, the Supreme Court of Canada ruled in the Patriation Reference that provincial consent was not legally necessary, but to do so without substantial consent would be contrary to a longstanding constitutional convention.[12] Trudeau succeeded in convincing nine provinces out of ten to consent to patriation by agreeing to the addition of a Notwithstanding Clause to limit the application of the Canadian Charter of Rights and Freedoms[13] as a result of discussions during a First Ministers' conference and other minor changes in November 1981.[14]

In the UK, 44 Members of Parliament voted against the Act, including 24 Conservative and 16 Labour MPs, citing concerns over Canada's past mistreatment of Quebec and Aboriginal peoples (as recalled with frustration by Jean Chrétien in his memoirs Straight from the Heart); overall there was little opposition from the British government to passing the Act. However, new research into documents of the Margaret Thatcher government indicate that Britain had serious concerns about the inclusion of the Canadian Charter of Rights and Freedoms within the Canada Act. Part of this concern stemmed from letters of protest the British received about it from provincial actors, but also because the Charter undermined the principle of parliamentary supremacy, which until that time had always been a core feature of every government practising the Westminster system.[15]

Through section 2 of the Canada Act 1982, the United Kingdom ended its involvement with further amendments to the Canadian constitution.[16] The procedure for amending the Constitution Act, 1982 must comply with its Part V, instead of the usual parliamentary procedure requiring the monarch's Royal Assent for enacting legislation.

Proclamation by the Queen of Canada

While the Canada Act 1982 received royal assent on March 29, 1982 in London, it was not until the Queen visited Canada the following month [17] that the Constitution Act, 1982, its Canadian equivalent, was proclaimed by letters patent as a statutory instrument by the Queen during her presence in Canada.[18]

Canada's Constitution Act, 1982 was signed into law by Elizabeth II as Queen of Canada on April 17, 1982 on Parliament Hill in Ottawa.[19][18] Queen Elizabeth's constitutional powers over Canada were not affected by the act, and she remains Queen and Head of State of Canada.[20] Canada has complete sovereignty as an independent country, however, and the Queen's role as monarch of Canada is separate from her role as the British monarch or the monarch of any of the other Commonwealth realms.[21]

See also

References

  1. ^ Canada Act 1982, s. 3.
  2. ^ a b "Canada in the Making – Constitutional History". .canadiana.org. Retrieved 2010-10-18.
  3. ^ "The Statute of Westminster, 1931". Efc.ca. Retrieved 2010-10-18.
  4. ^ "British North America (No. 2) Act, 1949". Solon.org. Retrieved 2010-10-18.
  5. ^ "Proclamation of the Constitution Act, 1982". Canada.ca. Government of Canada. May 5, 2014. Retrieved February 10, 2017.
  6. ^ "A statute worth 75 cheers". Globe and Mail. Toronto. March 17, 2009. Retrieved February 10, 2017.
  7. ^ Couture, Christa (January 1, 2017). "Canada is celebrating 150 years of… what, exactly?". CBC. CBC. Retrieved February 10, 2017. ... the Constitution Act itself cleaned up a bit of unfinished business from the Statute of Westminster in 1931, in which Britain granted each of the Dominions full legal autonomy if they chose to accept it. All but one Dominion — that would be us, Canada — chose to accept every resolution. Our leaders couldn't decide on how to amend the Constitution, so that power stayed with Britain until 1982.
  8. ^ Gérin-Lajoie, Paul (1951). "Constitutional Amendment in Canada". The Canadian Journal of Economics and Political Science. Blackwell Publishing on behalf of Canadian Economics Association. 17: 6. JSTOR 137699.
  9. ^ "Intellectuals for the Sovereignty of Quebec". Rocler.qc.ca. 1995-10-30. Retrieved 2010-10-18.
  10. ^ "Proclamation of the Constitution Act, 1982". Library and Archives, Government of Canada. Government of Canada. 2015. Retrieved 13 February 2017.
  11. ^ "The Constitution—The Monarchist League of Canada". Monarchist.ca. Retrieved 2010-10-18.
  12. ^ "1981 CanLII 25 (S.C.C.)". CanLII. Retrieved 2010-10-18.
  13. ^ "The Notwithstanding Clause of the Charter (BP-194E)". .parl.gc.ca. Retrieved 2010-10-18.
  14. ^ Siddiqui, Haroon (2012-04-15). "Canada's cherished Charter could not have happened without "kitchen accord"". Toronto Star. Retrieved 15 April 2012.
  15. ^ Frédéric Bastien. 2010. ―Britain, the Charter of Rights and the spirit of the 1982 Canadian Constitution.‖ Commonwealth & Comparative Politics 48 (3): 320–347.
  16. ^ Feasby, Colin (2006). "Constitutional Questions About Canada's New Political Finance Regime" (PDF). Osgoode Hall Law School York University. p. 18 Volume 48, Number 1. Retrieved 2010-10-18.
  17. ^ "Proclamation of the Constitution Act, 1982". Library and Archives, Government of Canada. Government of Canada. 2015. Retrieved 13 February 2017. The signing of the proclamation on April 17, 1982, marked the end of efforts by many successive governments. The new Constitution was accompanied by The Canadian Charter of Rights and Freedoms, and an amending formula that would no longer require an appeal to the British Parliament.
  18. ^ a b Lauterpacht, E (1988). International Law Reports. Cambridge University Press. p. 457. ISBN 0-521-46423-4. Retrieved 2010-10-18.
  19. ^ "Proclamation of the Constitution Act, 1982". Library and Archives, Government of Canada. Government of Canada. 2015. Retrieved 13 February 2017. The signing of the proclamation on April 17, 1982, marked the end of efforts by many successive governments. The new Constitution was accompanied by The Canadian Charter of Rights and Freedoms, and an amending formula that would no longer require an appeal to the British Parliament.
  20. ^ Cyr, Hugo (2009). Canadian Federalism and Treaty Powers: Organic Constitutionalism at Work. Bruxelles ; New York : P.I.E. Peter Lang. ISBN 978-90-5201-453-1. Retrieved 2010-10-18.
  21. ^ "Some Visual Aspects of the Monarchical Tradition" (PDF). Canadian Parliamentary Review 31. 2004. p. 17. Archived from the original (PDF) on 2010-03-08. Retrieved 2010-10-18.

External links

British North America Acts

The British North America Acts 1867–1975 are a series of Acts at the core of the constitution of Canada. They were enacted by the Parliament of the United Kingdom and the Parliament of Canada. In Canada, some of the Acts were amended or repealed by the Constitution Act, 1982. The rest were renamed in Canada as the Constitution Acts. In the United Kingdom, those Acts that were passed by the British Parliament remain under their original names. The term "British North America" (BNA) refers to the British colonies in North America.

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms (French: La Charte canadienne des droits et libertés), in Canada often simply the Charter, is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all areas and levels of the government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17, 1982, along with the rest of the Act.

The Charter was preceded by the Canadian Bill of Rights, which was enacted in 1960. However, the Bill of Rights is only a federal statute, rather than a constitutional document. As a federal statute, it can be amended through the ordinary legislative process and has no application to provincial laws. The Supreme Court of Canada also narrowly interpreted the Bill of Rights and the Court was reluctant to declare laws inoperative. The relative ineffectiveness of the Canadian Bill of Rights motivated many to improve rights protections in Canada. The movement for human rights and freedoms that emerged after World War II also wanted to entrench the principles enunciated in the Universal Declaration of Human Rights. The British Parliament formally enacted the Charter as a part of the Canada Act 1982 at the request of the Parliament of Canada in 1982, the result of the efforts of the government of Prime Minister Pierre Trudeau.

One of the most notable effects of the adoption of the Charter was to greatly expand the scope of judicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Bill of Rights. The courts, when confronted with violations of Charter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when Canadian case law was primarily concerned with resolving issues of federalism. The Charter, however, granted new powers to the courts to enforce remedies that are more creative and to exclude more evidence in trials. These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada's parent country the United Kingdom, was based upon Parliamentary supremacy. As a result, the Charter has attracted both broad support from a majority of the Canadian electorate and criticisms by opponents of increased judicial power. The Charter only applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, not to private activity.

Canadian Human Rights Act

The Canadian Human Rights Act (the Act) is a statute passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set of prohibited grounds such as sex, sexual orientation, race, marital status, gender identity or expression, creed, age, colour, disability, political or religious belief.

Canadian Senate divisions

Canadian Senate divisions refers to two aspects of the Senate of Canada. First, it refers to the division of Canada into four regional Senate divisions of 24 senators each, as set out in the Constitution of Canada (as defined in subsection 52(2) of the Constitution Act, 1982, consisting of the Canada Act 1982 (including the Constitution Act, 1982), all acts and orders referred to in the schedule (including the Constitution Act, 1867, formerly the British North America Act), and any amendments to these documents. The four regions are the Western Provinces, Ontario, Quebec and the Maritimes. These regions are intended to serve the Senate's purpose of providing regional representation in the Parliament of Canada, in contrast to the popular representation that the House of Commons is intended to provide. While not within any of the original four Senate divisions, Senate seats are also allocated to Newfoundland and Labrador and the three territories. The four divisions can be expanded when the need arises to have an extra two senators appointed to each regional division.

Second, it refers to divisions within a province represented by senators from the Canadian Senate, also known as "senatorial designation". Under the Constitution, only Quebec has official Senate divisions for each of the senatorial designations within the province. In all other provinces, Senators are appointed to represent the province as a whole and the Constitution makes no reference to official senatorial designations for those provinces. Senators from provinces outside Quebec may simply "designate" a district they wish to symbolically represent within their province, which can be named at the time of their appointment or at a later time. These senate divisions have no specific geographic boundaries though their names often give a reference to a general geographic area. However a senator will sometimes create boundaries for their senate division even though it has no legal status. While relatively rare, a senator outside of Quebec can change his or her division in the same manner as party affiliation, simply by notifying the Clerk of the Senate.

Canadian cultural protectionism

Cultural protectionism in Canada has, since the mid-20th century, taken the form of conscious, interventionist attempts on the part of various Governments of Canada to promote Canadian cultural production and limit the effect of foreign culture on the domestic audience. Sharing a large border and a common language with the United States, Canadian politicians have perceived the need to preserve and support a culture separate from US-based North American culture in the globalized media arena. Canada's efforts to maintain its cultural differences from the US and Mexico have been balanced by countermeasures in trade arrangements, including the General Agreement on Tariffs and Trade (GATT) and the North American Free Trade Agreement (NAFTA).

Constitution Act, 1982

The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867.. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.

This process was necessary because, after the Statute of Westminster, 1931, Canada decided to allow the British Parliament to temporarily retain the power to amend Canada's constitution, on request from the Parliament of Canada. In 1981, the Parliament of Canada requested that the Parliament of the United Kingdom remove that authority from the UK. The passing of the UK's Canada Act 1982 in March 1982 confirmed the Patriation of the Constitution and transferred to Canada the power of amending its own Constitution.On April 17, 1982, Queen Elizabeth II and Prime Minister Pierre Trudeau, as well as the Minister of Justice, Jean Chrétien, and André Ouellet, the Registrar General, signed the Proclamation which brought the Constitution Act, 1982 into force. The proclamation confirmed that Canada had formally assumed authority over its constitution, the final step to full sovereignty.As of 2019, the government of Quebec has never formally approved of the enactment of the act, though the Supreme Court concluded that Quebec's formal consent was never necessary. Nonetheless, it has remained a persistent political issue in Quebec. The Meech Lake and Charlottetown Accords were designed to secure approval from Quebec, but both efforts failed to do so.

Constitution of Canada

The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. Canada is one of the oldest constitutional democracies in the world. The constitution outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada.The composition of the Constitution of Canada is defined in subsection 52(2) of the Constitution Act, 1982, as consisting of the Canada Act 1982 (including the Constitution Act, 1982), all acts and orders referred to in the schedule (including the Constitution Act, 1867, formerly the British North America Act, 1867), and any amendments to these documents. The Supreme Court of Canada has held that the list is not exhaustive and includes a number of pre-confederation acts and unwritten components as well. See list of Canadian constitutional documents for details.

Constitutional history of Canada

The constitutional history of Canada begins with the 1763 Treaty of Paris, in which France ceded most of New France to Great Britain. Canada was the colony along the St Lawrence River, part of present-day Ontario and Quebec. Its government underwent many structural changes over the following century. In 1867 Canada became the name of the new federal Dominion extending ultimately from the Atlantic to the Pacific and the Arctic coasts. Canada obtained legislative autonomy from the United Kingdom in 1931, and had its constitution (including a new rights charter) patriated in 1982. Canada's constitution includes the amalgam of constitutional law spanning this history.

Cunningham v Homma

Cunningham v Homma, is a decision of the Judicial Committee of the Privy Council that upheld a British Columbia law that prohibited Japanese Canadians and Chinese Canadians from voting.The case originated with an attempt by Tomekichi Homma, a Japanese immigrant and naturalized Canadian, to register to vote in 1900. The registrar of voters, Thomas Cunningham, rejected Homma's application. Homma took the British Columbia government to court over the issue.

Homma was successful at the County Court and the Supreme Court of British Columbia However, the case ultimately made its way to the Judicial Committee of the Privy Council, which at that time was the highest court in the Canadian legal system. In Cunningham v Homma, the Privy Council ruled against Homma. The court determined that while the federal government had exclusive jurisdiction over the naturalization of citizens, the provinces had the right to legislate who could vote in provincial and municipal elections. There was no inherent right to vote for naturalized citizens. Provinces and their municipalities could determine who could vote, which meant they could bar any naturalized ethic group they chose. Parks Canada has designated this case as being of National Historical Significance.Asian Canadians would not garner the right to vote until 1949, four years after Homma died. In recognition of his contribution to the democratic system, in December 2017 the Government of Canada, through Parks Canada, dedicated a plaque in his honour at the Nikkei National Museum and Cultural Centre in Burnaby.

List of Canadian constitutional documents

The Constitution of Canada is a large number of documents that have been entrenched in the constitution by various means. Regardless of how documents became entrenched, together those documents form the supreme law of Canada; no non-constitutional law may conflict with them, and none of them may be changed without following the amending formula given in Part V of the Constitution Act, 1982.

The constitution includes legislation that was specifically written as constitutional documents, statutes that have become entrenched since their original creation, some ancient treaties and royal proclamations, unwritten procedures adopted from the British parliamentary system of government, and unwritten underlying values.

The oldest Canadian constitutional documents were enacted before Confederation, and originated from the English or British government. Those documents were received—along with many subconstitutional laws—into the law of Canada and its provinces by means of section 129 of the Constitution Act, 1867 (then called the British North America Act, 1867). Between Confederation in 1867 and patriation in 1982, the United Kingdom enacted some Canadian constitutional documents by means of the Colonial Laws Validity Act 1865 and the Statute of Westminster, 1931, most notably the British North America Acts. During this time, Canada also passed a small number of constitutional documents for itself. After patriation, all new constitutional documents were passed by the Parliament of Canada and the Legislatures of its provinces.

After patriation, the methods of constitutional entrenchment are:

specific mention as a constitutional document in section 52(2) of the Constitution Act, 1982;

amendments to constitutional documents using the amending formula in Part V the Constitution Act, 1982;

in some cases, reference by an entrenched document;

ruling by a court that a practice is part of Canada's unwritten constitution; or

judicial interpretation of constitutional provisions.The list of documents for the first two methods is well-established. For the next two, however, there is debate about which documents, or which parts of those documents, are included in the constitution. In some cases, the Supreme Court of Canada has made definitive rulings regarding whether a given documents forms part of the constitution, but in many cases the question is still unclear.

List of countries that have gained independence from the United Kingdom

This is a line of countries and territories formerly ruled or administered by the United Kingdom or part of the British Empire, with their independence days. Some countries did not gain their independence on a single date, therefore the latest day of independence is shown with a break down of dates further down.

Patriation

Patriation was the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. That Act was necessary because under the Statute of Westminster 1931, with Canada's agreement at the time, the British parliament had retained the power to amend Canada's Constitution Acts (Statute of Westminster sec. 7(1)), and to enact more generally for Canada at the request and with the consent of the Dominion (sec. 4). That authority was removed from the UK by the passing of the Canada Act 1982 on March 29, 1982, by the Parliament of the United Kingdom, as requested by the Parliament of Canada.Patriation was subsequently confirmed by Canada's Constitution Act, 1982 which was signed by then Prime Minister Pierre Trudeau and by Elizabeth II, as Queen of Canada, on April 17, 1982, on Parliament Hill, in Ottawa. Queen Elizabeth's constitutional powers over Canada were not affected by the act. Canada has complete sovereignty as an independent country, however, and the Queen's role as monarch of Canada is distinct from her role as the British monarch or the monarch of any of the other Commonwealth realms.The patriation process saw the provinces granted influence in constitutional matters and resulted in the constitution being amendable by Canada only and according to its amending formula, with no role for the United Kingdom. Hence, patriation is associated with the establishment of full sovereignty.

Quebec Veto Reference

Quebec Veto Reference (officially, Reference: Objection by Quebec to a Resolution to amend the Constitution) [1982] 2 S.C.R. 793 is a Supreme Court of Canada opinion on whether there is a constitutional convention giving the province of Quebec a veto over Amendments to the Constitution of Canada. The issue arose during patriation debates, after the Supreme Court ruled in the Patriation Reference that there is a constitutional convention requiring "a substantial degree of provincial consent" for amendments to the Constitution of Canada.

In November 1981, the Government of Quebec ordered that a reference be taken in the Quebec Court of Appeal, asking whether the consent of the Province of Quebec is required, by constitutional convention, for constitutional amendments affecting the legislative competence of the Quebec legislature, or the status or role of Quebec's government or legislature.

On April 7, 1982, the Quebec Court of Appeal answered in the negative. By that time, the Canada Act 1982 had already been passed by the UK Parliament, though not proclaimed in force. On April 13, 1982, the Attorney General of Quebec appealed to the Supreme Court of Canada, but on April 17, 1982, the Canada Act 1982 was proclaimed in force by the Queen.

In June 1982 the Supreme Court heard the appeal. On December 6, 1982, the Supreme Court rendered judgement, upholding the opinion of the Quebec Court of Appeal that Quebec did not have a veto by constitutional convention.

Section 27 of the Canadian Charter of Rights and Freedoms

Section 27 of the Canadian Charter of Rights and Freedoms is a section of the Charter that, as part of a range of provisions within the section 25 to section 31 bloc, helps determine how rights in other sections of the Charter should be interpreted and applied by the courts. It is believed that section 27 "officially recognized" a Canadian value, namely multiculturalism.The section reads,

Statutory instrument

In many countries, a statutory instrument is a form of delegated legislation.

Succession to the Throne Act 1937

The Succession to the Throne Act (1 Geo. VI, c.16) (the Act) is the act of the Canadian parliament that ratified the Cabinet's consent to His Majesty's Declaration of Abdication Act 1936, an act of the United Kingdom parliament that allowed Edward VIII to abdicate and pass the throne to George VI. However, it was the Canadian government's request and consent, and not the Succession to the Throne Act, that gave the British Act of Parliament effect in and made it part of the law of Canada, as per section 4 of the Statute of Westminster 1931, which allowed the British parliament to legislate for the Dominions only with their agreement.

Two Solitudes (Canadian society)

"Two Solitudes" refers to a perceived lack of communication, and moreover a lack of will to communicate, between Anglophone and Francophone people in Canada. The term was popularized by Hugh MacLennan's novel Two Solitudes. In her investiture speech as Governor-General of Canada, Michaëlle Jean specifically stated that "the time of 'two solitudes' had finished".

Victoria Charter

The Victoria Charter was a set of proposed amendments to the Constitution of Canada in 1971. This document represented a failed attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add rights and freedoms to it and entrench English and French as Canada's official languages; he later succeeded in all these objectives in 1982 with the enactment of the Canada Act 1982.

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