David Smellie
Canada’s largest amendment to its Constitution is the Constitution Act of 1982 (6). This act made major changes to the Canadian Constitution, including establishing judicial review, changing the procedure for amending the Constitution, and guaranteeing human rights (1) (2). This amendment deals primarily with changing Canada’s political institutions and firmly entrenching human and civil rights in Canadian law. The Constitution Act of 1982 also granted significant powers of judicial review to the Canadian Supreme Court and established a procedure for all future amendments. According to Lijphart, this marks a significant change in Canada’s process of adapting its Constitution as it establishes one of the most stringent amendment procedures as well as a judiciary with significant judicial review powers (3).
The history of Constitution Act of 1982 is one of the decline of the British Empire. The Empire had lost most of its overseas holdings after World War II and in 1968 began the process of turning the Constitution over to Canada (8). As such, in 1982 the United Kingdom relinquished its ability to make laws affecting Canada (7). This lead to Canada deciding to make major reforms to its Constitution in accordance with their ideas. The provinces in Canada demanded the inclusion of a notwithstanding clause in order to have the ability to object to a Constitution that was absolutely incompatible with Constitutional ideals (8). This has lead to Quebec still withholding approval of the Constitution despite multiple attempts to get the province to agree to the Constitution (8).
The Constitution Act of 1982 was created due to the vagueness of the old Canadian Constitution (Constitution Act of 1867), as well as a lack of desired features. As the original constitution was a hierarchical constitution, passed down by British Parliament it did not represent the view of the Canadian people, or the Canadian elite. This lead to a more majoritarian system then Canada desired with its strong provinces leading to a federal state. Federal states tend towards more consensual governing due to the decentralized nature of power (9). This lead towards numerous consensual provisions being included in the Constitution Act of 1982 including constitutionally protected rights and a supermajority requirement for amendments.
One of the major new additions of the Constitution Act of 1982 was the Charter of Rights and Freedoms (8). This act established numerous fundamental and civil rights and was strongly pushed for by then Prime Minister Trudeau (8). Additional features of the Constitution Act of 1982 include establishing aboriginal rights in part ii, establishing supremacy in article 52, and laying out the procedure for amendments in part v (8). The overall goal of the Constitution was to patriate away from British Parliament while developing a government more desirable to the Canadian people (8).The provinces were also guaranteed payments in order to ensure equalization, a concept in which all provinces supply approximately the same level of services to citizens living in the province (8).This was required by more rural, less wealthy provinces in order to agree to any sort of constitutional design.
References:
1. Assigned: CCW Files on Canada: “Canada constitution.doc”
2. Canadian constitution.https://www.constituteproject.org/constitution/Canada_2011.pdf
3. Assigned: Lijphart Chapter 12
4. http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-38
9.Assigned: Lijphart chapter 2
Elmer van der Vlugt
ReplyDeleteI agree that the Constitution Act of 1982 is one of the most significant changes to Canada’s constitutional documents, if not the most important. As David pointed out, it introduces entrenched civil rights and judicial review to the Canadian law system, whilst finalising the legal independence from Britain, in part by constituting an independent amending formula. As Kilgour explains, the amendment procedures agreed upon in the 1982 Act are some sort of compromise between two ideas: popular and provincial influence (1). His formal analysis of the amendment procedure shows that, at the time of the Act, Quebec and Ontario or Ontario and British Columbia could pass a constitutional amendment if a majority of population was the only requirement. However, because amendments need a popular majority and the consent of at least 7 provinces, the relative influence on constitutional amendments of highly populated provinces is decreased in favour of less populated ones (1).
With regards to the Charter of Rights and Freedoms and the Canadian Supreme Court, MacKay, in a 1983 analysis, noted that the Court had never really been too activist or creative, unlike its American equivalent, and therefore concludes that if change in legal practice were to happen, it would likely be gradual and slow (2). In 1997, Hogg & Bushell claimed that, although judicial review by unelected officials (appointed judges) may seem undemocratic and lacking in legitimacy, in the Canadian case, the Court makes decisions that leave room for legislators to fix the constitutional problems and thus have an effect without bypassing the democratic system (3). Downplaying the Charter’s effect somewhat, Epp notes that the Charter itself may have affected Canadian politics to a large extent, but that other factors should not be ignored, such as the institutional layout of Canada (4).
In conclusion, I would argue that the 1982 Act is so significant because it combines multiple influential changes. Each part of the Constitution Act separately may have arguments in favour and against its effective influence and change, but altogether they culminate in a very important modification of Canada’s constitutional documents.
References:
1. Original: Kilgour, D. Marc (1983) “A Formal Analysis of the Amending Formula of Canada’s Constitution Act, 1982” Canadian Journal of Political Science 16(4), 771-777
2. Original: MacKay, A. Wayne (1983) “Judicial Process in the Supreme Court of Canada: The Patriation Reference and its Implications for the Charter of Rights” Osgoode Hall Law Journal 21(1), 55-81
3. Original: Hogg, Peter W. & Allison A. Bushell (1997) “The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing after All)” Osgoode Hall Law Journal 35(1), 75-124
4. Original: Epp, Charles R. (1996) “Do Bills of Rights Matter? The Canadian Charter of Rights and Freemdoms” American Political Science Review 90(4), 765-779
Elizabeth Caldwell
ReplyDeleteThere have been several amendments passed since the Constitution Act of 1982 and 33 of them (2) were passed as a package under the Canadian Charter of Rights and Freedoms (1). This is arguably the most important set of amendments (3) to exist in Canada since the numerous social justice and humanitarian changes have been brought about by these document improving lives and rights of many Canadians (3).
Women have been given time off work for maternity leave when previously they could be fired. Abortion is now legal when before it was determined to be murder(4). A mother does not have to list a father on the birth record. (5)
Lawyers have been guaranteed to those who could not afford them. Police powers became restricted including some laws that were determined to be the assumption of “guilty-until-proven-innocent” (5). The charter also redefined phone tapping under an emergency to allow for more accountability.
Language rights were extended to outside of Quebec including the opportunity for students to receive an education in their first language no matter which province they were in(5). Native peoples were guaranteed land claims and are to be consulted if a decision will impact natural resources and development that would be an overburden to the native people. (4)
Rights were increased for the LGBT community as discrimination became illegal, spousal support was guaranteed if the couple split and gay marriage became legal. (4+5)
In terms of constitutional specificity the Charter of Right and Freedoms could not have been handled any other way. Many court rulings differed significantly with the rights laid out in the Charter and only another court ruling based on a different law could have changed it(4+5). As the Charter was an amendment to the law of the land, this helped propel all the court decisions that interpreted these greater rights and freedoms. The charter also includes a clause that helps prevent changes to it by determining what is or is not a positive change for the people and banning changes that would take away from the rights and freedoms. (5) So unlike a normal law it cannot be merely overwritten at a simple vote from Parliament.
1. http://en.wikipedia.org/wiki/Canadian_Charter_of_Rights_and_Freedoms
2. http://laws-lois.justice.gc.ca/eng/const/page-15.html
3. http://www.pch.gc.ca/eng/1355260548180/1355260638531
4. http://www.cbc.ca/news/canada/6-big-changes-the-charter-of-rights-has-brought-1.1244758
5. http://www.charterofrights.ca/en/28_00_01
Jesse Moehlman
ReplyDeleteDavid correctly points out the importance of the Constitution Act of 1982, and contrasts this with the vagueness of the Canadian Constitution of 1867. F. L. Morton writes that the Charter of Rights and Freedoms amounted to stepping away from the British model of an “unwritten constitution” (1). Many of the freedoms inscribed in the Charter were already recognized in Canada’s legal system prior to its drafting, yet Morton also explains that this applied only to the Federal government; the establishment of the Charter extended the guarantee of these freedoms to all levels of Canadian society, and because this amendment was adopted through Parliament it established parliamentary supremacy, at least in writing (1). Lijphart points out in Chapter 12 that Canada has one of the most rigid constitutions, meaning that it is very difficult to amend (2). This factor makes the passing of such a wide-ranging amendment that much more significant, and shows the extent to which Canada wanted protections of individual rights to be a part of its written constitution.
It is interesting to note that Canada already had a good record on human rights and individual freedoms, relative to other nations, before amending the constitution with the inclusion of the Charter of Rights and Freedoms (1). However, the Bill of Rights of 1960, which guaranteed these rights, did not give the Canadian Supreme Court a lot of latitude to use judicial review to protect civil rights (1). As stated above, the Charter established parliamentary supremacy on the issue, and thus applied these constitutional provisions to both federal and regional levels of government. Morton notes that the Charter has led to a dramatic shift in jurisprudence from the Supreme Court, which fits with Lijphart’s conclusion in Chapter 12 (1 and 3). While the Bill of Rights in 1960 did guarantee many of the rights enshrined in the Charter, it did not grant the same authority of judicial review to the Court. This difference highlights the significance of the Charter and the overall significance of the Constitution Act of 1982.
References:
1. F.L. Morton, “The Political Impact of the Canadian Charter of Rights and Freedoms,” Canadian Journal of Political Science, 1987, pp. 31-34. http://www.jstor.org.proxy.lib.umich.edu/stable/pdfplus/3228804.pdf?acceptTC=true&jpdConfirm=true
2. Lijphart, Chapter 12, charts on pages 208 and 215
3. Lijphart Chapter 12, page 216
Stephen Siddall
ReplyDeleteI agree with David and would contend that the Constitution Act of 1982 is the most important amendment in Canada’s constitutional history. It made many clarifications to a vague 1867 document. The clarification I will be focusing on is the reaffirmation of Canadian federalism.
Canadian federalism has its routes in the Constitution Act of 1867, which granted several enumerated powers to provincial legislatures exclusively. Among these listed in section 92 are direct taxation, borrowing, as well as management of natural resources, prisons, courts, and hospitals among other things. (1) Additionally section 40 states that parliamentary seats are distributed among the provinces, giving politicians accountability from regional constituencies. (1)
Though federalism was is clearly present in the first document, it was reaffirmed and made stronger through the Constitution Act of 1982. First, it outlined a detailed, clear amendment process with section 45 holding that amendments solely concerning the provinces can be passed without the central parliament. (1) Also, section 38 created the 7/50 rule which made the threshold for passing a general constitutional amendment approval of two-thirds or seven of the eleven provincial legislatures constituting fifty percent of the total population. (1) As Elmer mentions, this gives more power to smaller provinces and takes power away from larger ones, creating stronger federalism. Additionally, section 33 allows individual provinces to nullify single acts of the parliament if they do not agree. (1) This is commonly known as the “notwithstanding clause.” (2) This gives further autonomy to individual provinces as they do not have to fully comply with acts of the central government. Canada has a rich history of federalism beginning with the Constitution Act of 1867. Canadian federalism with strengthened and clarified with the Constitution Act of 1982. According to Lijphart, Canada’s government ranks among the most federal and decentralized of all democracies. (3) Perhaps this federalist is due to Canada’s vast cultural, linguistic, economic, and geographical differences.
Sources:
(1) Canadian Constitution https://www.constituteproject.org/constitution/Canada_2011
(2) Wikipedia http://en.wikipedia.org/wiki/Section_Thirty-three_of_the_Canadian_Charter_of_Rights_and_Freedoms
(3) Lijphart, Arend. Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries. New Haven, CT: Yale University Press, 2012. Print.