Canadian Canadian Canadian Canadian Constitutional Constitutional Constitutional Constitutional

History History History History

Grade 11 Canadian Law

History History History History

Canadian Canadian Canadian Canadian Constitutional Constitutional Constitutional Constitutional

History History History History

Grade 11 Canadian Law

History History History History

Contents

• What is a Constitution?• Types of Constitutions• The British North America Act• The King-Byng Affair• The Statute of Westminster• The 1960 Bill of Rights

The British North America Act

The Statute of Westminster

What is a Constitution?

• A constitution is a fundamental set of laws that defines how a government is run.

• There are essentially two types of constitution, written and unwritten– Unwritten constitutions generally follow the British pattern– Unwritten constitutions generally follow the British pattern– Written constitutions generally follow the American pattern

• -Canada has a bizarre hybrid system of written and unwritten constitutional law

What is a Constitution? @@@@

A constitution is a fundamental set of laws that defines

There are essentially two types of constitution, written

Unwritten constitutions generally follow the British patternUnwritten constitutions generally follow the British patternWritten constitutions generally follow the American pattern

Canada has a bizarre hybrid system of written and

Types of Constitutions

• An “unwritten constitution” is no single, formal document outlining how the government is to be run

• It basically uses legal precedent, customs and parliamentary rights and traditions– It changes over time to reflect society’s progress– It changes over time to reflect society’s progress

• The main example is England/Great Britain/United Kingdom, whose constitution has evolved over the last 1,000 years

Types of Constitutions @@@@

An “unwritten constitution” is no single, formal document outlining how the government is to be runIt basically uses legal precedent, customs and parliamentary rights and traditions

It changes over time to reflect society’s progressIt changes over time to reflect society’s progress

The main example is England/Great Britain/United Kingdom, whose constitution has evolved over the last

Types of Constitutions

• A “written constitution” has all of its procedures and laws clearly laid out in a (usually) single document– This document is then interpreted by judges for use in everyday life

• The main example is the United States, whose constitution was adopted in 1789

Types of Constitutions @@@@

A “written constitution” has all of its procedures and laws clearly laid out in a (usually) single document

This document is then interpreted by judges for use in

The main example is the United States, whose constitution was adopted in 1789

Types of Constitutions

ADVANTAGES

UNWRITTEN -easily allows change over time-certain traditions considered “unassailable” (Bill of Rights, supremacy of Parliament”-elected officials make and -elected officials make and interpret the laws in Parliament

WRITTEN -all in one document-laws and traditions are entrenched and important ones are difficult to change-IF judges are elected they interpret the law

Types of Constitutions @@@@

DISADVANTAGES

easily allows change over timecertain traditions considered “unassailable” (Bill of Rights, supremacy of Parliament”elected officials make and

-difficult to interpret as it is always changing-some archaic laws and traditions

elected officials make and interpret the laws in Parliament

entrenched and important ones

IF judges are elected they

-extremely difficult to change (amending formula)-different judges have different interpretations of the law-if judges are appointed they are still interpreting the law rather than elected officials

The BNA Act

• The British North America (Bthe Dominion of Canada as a separate political identity from the United Kingdom– We were however still part of the British Empire

• The BNA Act established federal and provincial responsibilities and systems of governance and finance

• It established English Common Law, Magna Carta, the Habeas Corpus Act of 1679 and the 1689 Bill of Rights as the fundamental principles our constitution– Just like in the UK

The BNA Act @@@@

ica (BNA) Act of 1867 established the Dominion of Canada as a separate political identity

We were however still part of the British Empire

The BNA Act established federal and provincial responsibilities and systems of governance and finance

It established English Common Law, Magna Carta, the Habeas Corpus Act of 1679 and the 1689 Bill of Rights as the fundamental principles our constitution

The BNA Act

• However there were some ambiguities in the BNA Act– Some federal/provincial jurisdictions weren’t clear (i.e. natural resources)

– Provinces had to follow federatechnically independent of the federal government

• Also, any changes to the way the country was run or the unwritten constitution had to be sent to Britain for a decision– In order to change it ourselves we had to “patriate” our constitution

The BNA Act @@@@

However there were some ambiguities in the BNA ActSome federal/provincial jurisdictions weren’t clear (i.e. natural

ederal guidelines for funding, but were technically independent of the federal government

Also, any changes to the way the country was run or the unwritten constitution had to be sent to Britain for a

In order to change it ourselves we had to “patriate” our

The BNA Act

• Having Britain make decisions about our laws and constitution wasn’t always seen as a bad thing

• Canada was seen as somewhat “backwards” by the UK in the early 20th century and some of our laws were in the early 20th century and some of our laws were wisely changed in London– For example the Supreme Court of Canada refused to recognize women as “persons” in 1927, so the “Famous Five” took their case to Britain and had the decision overturned

– Canada also had numerous laws discriminating against immigrant minorities and natives which were changed

The BNA Act @@@@

Having Britain make decisions about our laws and constitution wasn’t always seen as a bad thing

Canada was seen as somewhat “backwards” by the UK in the early 20th century and some of our laws were in the early 20th century and some of our laws were

For example the Supreme Court of Canada refused to recognize women as “persons” in 1927, so the “Famous Five” took their case to Britain and had the decision overturnedCanada also had numerous laws discriminating against immigrant minorities and natives which were changed

The King-Byng Affair

• The BNA Act gave Canada a viceroy (someone with the powers of the monarch) called a Governorrepresented the British Government in Canada

• In 1926 there was a severe disagreement between • In 1926 there was a severe disagreement between Prime Minister W.L.M. King and the GG Viscount Vimy (Julian Byng) about the role of the GG in Canada

• Afterwards, King petitioned the British Government to change the GG’s role to be a representative of the monarch only and have the Government be represented by a High Commissioner– This was carried in the Balfour Declaration of 1926 and is the system still in use today

Byng Affair @@@@

The BNA Act gave Canada a viceroy (someone with the powers of the monarch) called a Governor-General who represented the British Government in Canada

In 1926 there was a severe disagreement between In 1926 there was a severe disagreement between Prime Minister W.L.M. King and the GG Viscount Vimy (Julian Byng) about the role of the GG in CanadaAfterwards, King petitioned the British Government to change the GG’s role to be a representative of the monarch only and have the Government be represented

This was carried in the Balfour Declaration of 1926 and is the

William Lyon Mackenzie King Field Marshal Julian Byng, Lord VimyWilliam Lyon Mackenzie King Field Marshal Julian Byng, Lord Vimy

The Statute of Westminster

• Prior to 1931 the British Government could make or change laws (“legislate”) for the Dominions without their input

• The Statute of Westminster, 1931 established legislative • The Statute of Westminster, 1931 established legislative independence for the six selfBritish Empire:– Dominion of Canada– Commonwealth of Australia– Irish Free State– Dominion of Newfoundland (never ratified)– Dominion of New Zealand– Union of South Africa

The Statute of Westminster @@@@

Prior to 1931 the British Government could make or change laws (“legislate”) for the Dominions without their

The Statute of Westminster, 1931 established legislative The Statute of Westminster, 1931 established legislative independence for the six self-governing entities of the

Dominion of Newfoundland (never ratified)

The Statute of Westminster

• It established the British Commonwealth in place of the British Empire, where all Commonwealth nations are equal, rather than subordinate to the UK

• Canada was now independent of Britain and could make and change its own laws without permission from and change its own laws without permission from London

• However, Canada could not make any changes to its constitution without British permission– Britain offered this, but the federal and provincial governments could not agree on an amending formula that would be fair to everyone

– As a result it was agreed to leave amendments to Britain for the time being

The Statute of Westminster @@@@

It established the British Commonwealth in place of the British Empire, where all Commonwealth nations are equal, rather than subordinate to the UK

Canada was now independent of Britain and could make and change its own laws without permission from and change its own laws without permission from

However, Canada could not make any changes to its constitution without British permission

Britain offered this, but the federal and provincial governments could not agree on an amending formula that would be fair to

As a result it was agreed to leave amendments to Britain for

The CommonwealthThe Commonwealth

The 1960 Bill of Rights

• Much had changed since Canada’s last effective Bill of Rights was written (England’s 1689 Bill of Rights, 271 years before!)

• To reflect Canada’s new position as an independent and • To reflect Canada’s new position as an independent and powerful country, in 1960 the Conservative government of John Diefenbaker created a uniquely Canadian Bill of Rights, enshrining:– Freedom of speech and religion– Equality rights– Right to life, liberty and security of person– Right to property– Right to legal counsel

The 1960 Bill of Rights @@@@

Much had changed since Canada’s last effective Bill of Rights was written (England’s 1689 Bill of Rights, 271

To reflect Canada’s new position as an independent and To reflect Canada’s new position as an independent and powerful country, in 1960 the Conservative government of John Diefenbaker created a uniquely Canadian Bill of

Freedom of speech and religion

Right to life, liberty and security of person

1960’s and 70’s

• Throughout the 1960’s and 70’s there were only a few major events in Canada’s constitutional evolution– Maximum ages were set for Senators and Superior Court judges at 75 years

– Previously they could serve for life– Previously they could serve for life

• Seats in the House of Commons were also given to the Yukon and Northwest Territories

1960’s and 70’s @@@@

Throughout the 1960’s and 70’s there were only a few major events in Canada’s constitutional evolution

Maximum ages were set for Senators and Superior Court

Previously they could serve for lifePreviously they could serve for life

Seats in the House of Commons were also given to the Yukon and Northwest Territories

Constitution Act, 1982

• The Constitution Act of 1982 was the largest change to Canada’s legal and political system since Confederation– It “patriated” Canada’s constitution

• The Act consists of 7 parts:• The Act consists of 7 parts:– 1. The Charter of Rights and Freedoms– 2. Aboriginal Peoples– 3. Regional Disparities– 4. Constitutional Conference (repealed)– 5. Amending the Constitution– 6. Amendment to 1867 Act– 7. General Provisions

Constitution Act, 1982 @@@@

The Constitution Act of 1982 was the largest change to Canada’s legal and political system since Confederation

It “patriated” Canada’s constitution

The Act consists of 7 parts:The Act consists of 7 parts:1. The Charter of Rights and Freedoms

4. Constitutional Conference (repealed)5. Amending the Constitution