Canada Act 1982

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Canada Act 1982
Long title An Act to give effect to a request by the Senate and House of Commons of Canada.
Chapter 1982 c. 11
Dates
Royal Assent 29 March 1982
Text of statute as originally enacted
Revised text of statute as amended

The Canada Act 1982 (1982 c. 11) is an Act of the Parliament of the United Kingdom that was passed at the request of the Canadian federal government to "patriate" Canada's constitution, ending the necessity for the country to request certain types of amendment to the Constitution of Canada to be made by the British parliament. 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] As a result, the Canada Act is the only British legislation forming a part of the Constitution of Canada that has an official text in both languages, rather than just in English. It is also the only law passed by the British legislature in French since the Middle Ages.[citation needed]

History[edit]

Canada's political history began with the British North America Act, 1867 (currently officially called the Constitution Act, 1867).[2] This act created the modern state of Canada by combining the Province of Canada (now Ontario and Quebec), Nova Scotia, and New Brunswick into a dominion within the British Empire.[2] From this 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.

Despite this, 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 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]), except where the Dominion consented to Imperial legislation. Also, the British North America (No. 2) Act, 1949 was passed by the British Parliament, giving the Parliament of Canada significant constitutional amending powers.[4] However, an Act of the British Parliament was still required to make some amendments in the Canadian constitution.[5] 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.[6]

Enactment of the Act[edit]

The Canada Act was the last request of the Canadian government to amend the country's constitution.[7] After unpromising negotiations with the provincial governments, Pierre Trudeau eventually began to hope that the federal Parliament could unilaterally patriate the constitution. The Supreme Court of Canada ruled in the Patriation Reference that provincial consent was not technically needed, but that substantial consent from the provinces was needed according to constitutional convention.[8] Trudeau succeeded in convincing nine provinces out of ten by adding the Notwithstanding Clause to limit the application of the Canadian Charter of Rights and Freedoms[9] as a result of discussions during a First Ministers' conference in November 1981.[10]

Aside from some objections from British MPs who protested Canada's past mistreatment of Quebec and Aboriginal peoples (as recalled with frustration by Jean Chrétien in his memoirs Straight from the Heart), there was little opposition from the British government to passing the Act.[citation needed] However, new research into documents of the 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 practicing the Westminster system.[11]

Through section 2 of the Canada Act 1982, the United Kingdom ended its involvement with further amendments to the Canadian constitution.[12]

Proclamation by the Queen of Canada[edit]

While the Canada Act 1982 received royal assent on March 29, 1982 in London, it was not until the Queen came to Canada 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.[13]

The Constitution Act, 1982 was signed into law by Elizabeth II as Queen of Canada on April 17, 1982 on Parliament Hill in Ottawa.[13] Queen Elizabeth's constitutional powers over Canada were not affected by the Act, and she remains Queen and Head of State of Canada.[14] Canada has complete sovereignty as an independent country 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.[15]

See also[edit]

References[edit]

  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. ^ Gérin-Lajoie, Paul (1951). "Constitutional Amendment in Canada". The Canadian Journal of Economics and Political Science (Blackwell Publishing on behalf of Canadian Economics Association): 6 Vol. 17, No. 3. JSTOR 137699. 
  6. ^ "Intellectuals for the Sovereignty of Quebec". Rocler.qc.ca. 1995-10-30. Retrieved 2010-10-18. 
  7. ^ "The Constitution—The Monarchist League of Canada". Monarchist.ca. Retrieved 2010-10-18. 
  8. ^ "1981 CanLII 25 (S.C.C.)". CanLII. Retrieved 2010-10-18. 
  9. ^ "The Notwithstanding Clause of the Charter (BP-194E)". .parl.gc.ca. Retrieved 2010-10-18. 
  10. ^ Siddiqui, Haroon (2012-04-15). "Canada’s cherished Charter could not have happened without "kitchen accord"". Toronto Star. Retrieved 15 April 2012. 
  11. ^ Frédéric Bastien. 2010. ―Britain, the Charter of Rights and the spirit of the 1982 Canadian Constitution.‖ Commonwealth & Comparative Politics 48 (3): 320–347.
  12. ^ Feasby, Colin (2006). "Constitutional Questions About Canada's New Political Finance Regime". Osgoode Hall Law School York University. p. 18 Volume 48, Number 1. Retrieved 2010-10-18. 
  13. ^ a b Lauterpacht, E (1988). International Law Reports. Cambridge University Press. p. 457. ISBN 0-521-46423-4. Retrieved 2010-10-18. 
  14. ^ 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. 
  15. ^ "Some Visual Aspects of the Monarchical Tradition". Canadian Parliamentary Review 31. 2004. p. 17. Retrieved 2010-10-18. 

External links[edit]