Talk:Constitution of Canada

From Wikipedia, the free encyclopedia
Jump to: navigation, search
          This article is of interest to the following WikiProjects:
WikiProject Canada / Governments / Law (Rated Start-class, High-importance)
WikiProject icon This article is within the scope of WikiProject Canada, a collaborative effort to improve the coverage of Canada on Wikipedia. If you would like to participate, please visit the project page, where you can join the discussion and see a list of open tasks.
Start-Class article Start  This article has been rated as Start-Class on the project's quality scale.
 High  This article has been rated as High-importance on the project's importance scale.
Taskforce icon
This article is supported by WikiProject Governments of Canada.
Taskforce icon
This article is supported by WikiProject Canadian law.
 
WikiProject Politics (Rated Start-class, Mid-importance)
WikiProject icon This article is within the scope of WikiProject Politics, a collaborative effort to improve the coverage of politics on Wikipedia. If you would like to participate, please visit the project page, where you can join the discussion and see a list of open tasks.
Start-Class article Start  This article has been rated as Start-Class on the project's quality scale.
 Mid  This article has been rated as Mid-importance on the project's importance scale.
 
WikiProject Law (Rated Start-class)
WikiProject icon


This article is within the scope of WikiProject Law, an attempt at providing a comprehensive, standardised, pan-jurisdictional and up-to-date resource for the legal field and the subjects encompassed by it.
Start-Class article Start  This article has been rated as Start-Class on the project's quality scale.
 ???  This article has not yet received a rating on the project's importance scale.
 

Earlier discussions[edit]

I'm starting to put some work into this article and so far made a few changes that may prove controversial. Particularly, I've removed the British legislation from the list of "frequently cited" parts of the constitution. I did this because those two acts, at least in Canadian Constitutional law, are not cited that much at all. I don't deny they are important parts of the constitution but nevertheless they are more historical than anytihing else. They aren't given that much analysis in Courts. If anyone disagrees with any of my changes I hope we can work it out. -- PullUpYourSocks 22:09, 11 September 2005 (UTC)

In some of the wikipedia articles on the Constitution of Canada, including this one and Amendments to the Constitution of Canada, I have noticed that there is a suggestion that provincial legislatures can make amendments to the Constitution of Canada unilaterally. It is my understanding that this is not true and these articles may be misrepresenting the actual amending formula. The amending formula states that provincial legislatures may make laws amending to the constitution of the province (such as the Quebec legislature did in 1968, abolishing the Legislative Council and renaming the Legislative Assembly to the National Assembly), but not that they may make amendments unilaterally to the Constitution of Canada itself. It is my understanding that any amendment whatsoever to the Constitution of Canada requires the support of Parliament at least. Some confusion may be caused by the complex amending formula and its different levels of support required for different types of amendments: some amendments require unanimous consent of Parliament and the provincial legislatures, some require the 7/50 formula, some require only Parliament and the legislatures of the provinces affected, and some can be made by Parliament alone, but none can be made by a provincial legislature alone. If I am correct and these articles incorrect, the articles should be changed appropriately. —Preceding unsigned comment added by 99.235.250.111 (talk) 01:43, 23 February 2008 (UTC)

In response to the previous question, yes: Provincial legislatures have the right to unilaterally amend the Constitution under s. 45 of the Constitution Act, 1982. They may make amendments with respect to the "constitution of the province." To explain what that means I need to first mention that the Constitution of Canada is actually composed of three overlapping "spheres." You have a federal constitution, which governs the structure and organization of the federal government and parliament. You have the provincial constitutions, which govern the structure and organization of the provincial ones (note that for the most part, those sections that deal with their structure usually say something like "whatever the Feds have, the provinces have something similar mutatis mutandum"). Finally, there is a "national" constitution, which is basically those components and parts which govern everyone. The Federal Parliament has the power to unilaterally alter its own federal constitution/structure (minus some reservations such as the office of the Queen, the Senate, etc which are protected by other more stringent formulae). The provinces may, likewise, alter their own provincial structure/constitution (minus some explicit exceptions again, such as the office of the Lieutenant Governor and some language laws). Efylinx (talk) 23:53, 10 December 2009 (UTC)

List[edit]

I forgot to log in when I did it, but I added to the article a list of the documents that form the Canadian constitution. These are the acts and orders listed in the Constitution Act, 1982, as well as the further ammendments to those acts. --Q Canuck 14:52, 9 August 2006 (UTC)

I think the list of British acts that are part of Canada's constitution includes documents that are pre-1867, and much more than the Act of Settlement, as per section 129 of the BNA, 1867. No provincial or Dominion act can repeal or contradict an act of the British parliament. This was true until 1931 when the UK then gave up the right to legislate for Canada with the Statute of Westminster as well as permitting Dominion and provincial laws to contradict British laws.

For instance, the notion that public law is common, not civil, law in Quebec was established in the Quebec Act and has not been mentioned since, yet it is still cited as valid constitutional law (probably per section 129 of the BNA). This is the case because later British acts did not repeal the Quebec Act in full (few laws fully replace previous laws) and certain provisions remain law. The question is whether, because of the above process, is it now just statutory law or has it acquired the aura of constitutional entrenchment.

All told this was a very messy way to create a constitution. You really need a constitutional expert to compile a list of extant laws which form part of Canada's constitution. -- G. Csikos, 30 April 2007

Vandalism[edit]

I added this section after recently seeing the actual vandalized constitution in a new public display at the Ottawa archives where I work. I think it's a fact not known by most canadians that both original copies of our constitution are physically damaged - one by rain and one by paint.Bennyxbo 12:27, 26 July 2007 (UTC)

Fair use rationale for Image:Can-pol w.jpg[edit]

Nuvola apps important.svg

Image:Can-pol w.jpg is being used on this article. I notice the image page specifies that the image is being used under fair use but there is no explanation or rationale as to why its use in this Wikipedia article constitutes fair use. In addition to the boilerplate fair use template, you must also write out on the image description page a specific explanation or rationale for why using this image in each article is consistent with fair use.

Please go to the image description page and edit it to include a fair use rationale. Using one of the templates at Wikipedia:Fair use rationale guideline is an easy way to insure that your image is in compliance with Wikipedia policy, but remember that you must complete the template. Do not simply insert a blank template on an image page.

If there is other fair use media, consider checking that you have specified the fair use rationale on the other images used on this page. Note that any fair use images uploaded after 4 May, 2006, and lacking such an explanation will be deleted one week after they have been uploaded, as described on criteria for speedy deletion. If you have any questions please ask them at the Media copyright questions page. Thank you.

BetacommandBot 05:39, 27 October 2007 (UTC)

"Privacy" section[edit]

This is now the second time I have had to remove a fictionalized entry on privacy. Here are the facts: 1) there was no ammendment to the constitution in 1989; 2) there is no s. 7(b) in the Charter; 3) protection of private property was specifically not included in the Charter; and 4) s. 8 is the only protection of privacy. While the section that keeps being added also refers to the privacy commissioner (which is the only non-fiction in the entire proposed section), that has nothing to do with the constitution. Singularity42 (talk) 11:03, 12 June 2009 (UTC)

Magna Carta[edit]

"Even Magna Charta [sic], which does have constitutional status in Canada, was occasionally called into service in legal argument. [citation needed]"

One such case is Christie v. AG of B.C. et al. (2005)

In the Reasons for Judgment, the B.C. Supreme Court stated: "[The Act] constitutes indirect taxation and is a tax on justice contrary to the Magna Carta and the Rule of Law…

I am prepared to grant the following declarations: A declaration that the Act is ultra vires in the Province of British Columbia to the extent that it applies to legal services provided for low income persons."

Someone should correct the spelling error, also.

Ilnyckyj (talk) 17:17, 29 June 2009 (UTC)

Be bold. :) Singularity42 (talk) 20:51, 29 June 2009 (UTC)

Mention of the Prime Minister[edit]

The article currently states "(Even today, there is no mention of the person called “Prime Minister” anywhere in the Canadian Constitution.[citation needed] " noting the citation needed.

This is incorrect. While no where in the Constitution will you find a reference to the WHAT a Prime Minister is, you will find a reference from 1982 regarding the Prime Minister being mandated to attend certain meetings once a year.

I could pour through the text and find the reference, but given that this line has no current citation anyway, I'm going to remove it (Since it *IS* inaccurate) if no one has any objections? Dphilp75 (talk) 21:48, 29 January 2010 (UTC)

Removing the text sounds fine to me. —fudoreaper (talk) 19:49, 30 January 2010 (UTC)
It's been a couple of days with one agreement and no nays, so I'm going to go ahead and remove it. Thanks! Dphilp75 (talk) 12:57, 31 January 2010 (UTC)
Cool man. Thanks for the correction, which is subtle, but accuracy matters in Wikipedia. Good eye. —fudoreaper (talk) 08:21, 1 February 2010 (UTC)
TYVM. I hate to admit it, but little errors like that drive me nuts. Largely because its fun little facts like this that one can bring up in a debate to, well, crush your adversaries... ;) Dphilp75 (talk) 14:11, 1 February 2010 (UTC)
Ha ha. That kind of attitude makes sense in Wikipedia. If you really wanna crush your enemies, though, you should go further and quote the part from 1982 that mentions the PM for the first time. Show that the PM is mentioned by name in constitutional documents. That would really be the way to win trivia competitions! ;) —fudoreaper (talk) 22:50, 2 February 2010

(UTC)

Ok, I added it! ;) Not thoroughly happy with the language, but if someone would like to clean it up, I'd be all for it! Dphilp75 (talk) 18:43, 3 February 2010 (UTC)
Alright, awesome! I took your request for cleanup help, and changed it a bit, too, to integrate it into the surrounding text better. Again, good work with the sourcing. Hrm, we couldn't link to these sections of the Act somewhere on the web, could we? That would be the ultimate... —fudoreaper (talk) 12:47, 5 February 2010 (UTC)
Geez, you just want it all don't ya? :P Added! :) Dphilp75 (talk) 16:10, 7 February 2010 (UTC)

The Prime Minister is mentioned in two documents, to my knowledge.

The first is in the Letters Patent, 1947 s. XIV: "And whereas great prejudice may happen to oOur Service and to the security of Canada by the absence of Our Governor General, he shall not quit Canada without having first obtained leave from Us for so doing through the Prime Minister of Canada." (This is one of the three offices constitutionally empowered to act in the name of the Crown, the main one of course being the Governor General, who is authorised to exercise a broad range of executive powers in the Constitution Act, 1867 "on behalf and in the name of the Queen" and to exercise nearly all the monarch's powers and authority for Canada in the Letters Patent, 1947, and the third the lieutenant governor for each province who is authorised to summon the legislative assembly (s.82) and for Quebec appoint new members of the Legislative Council (s. 75) "in the Queen's name" — but "on behalf of the Queen", the difference being that the CA, 1867 is explicit in locating the Crown only in the executive government and Parliament of the "One Dominion", the provinces being merely divisions of the Dominion established at Union, and not federating Dominions retaining Crown sovereignty as the Australian states did at Federation.)

The CA, 1982 invests the Prime Minister of Canada with the responsibility to convene constitutional conferences in ss. 35.1, 37.1 (repealed), and 49. Kiwehtin (talk) 19:33, 25 August 2013 (UTC)

Empire Conference[edit]

I created Empire Conference as a redirect to the SS Narva article. It is linked from this article, suggesting that it may need to be turned into a dab. Not sure which "Empire Conference" is meant here though. Anyone who can sort out a dab please do so. Mjroots (talk) 13:19, 11 June 2010 (UTC)

"Canada was still legally a colony instead of a fully-fledged member of the sisterhood of nation-states"[edit]

I added {{dubious}} to the following sentences in the article: "In the interim, the British Parliament periodically passed enabling acts and other legislation to retroactively legitimate the actions of the Canadian Parliament and government. This was never anything but a rubber stamp, but it did mean Canada was still legally a colony instead of a fully-fledged member of the sisterhood of nation-states." The sentence is in the sixth paragraph of the "History of the Constitution" section of the article, and deals with the fact that the Statute of Westminster was never ratified in full in respect of Canada until the Constitution was patriated in 1982.

First, I know that the British Parliament had to enact any changes to the Canadian Constitution, but I was not aware that they had to enact enabling legislation in support of other actions of Canada's Parliament. Does anyone have any more information on this, and more importantly, can they point to relevant sources?

Second, and this is the real issue, assuming the first sentence is correct, I'm not sure about the conclusions reached in the second sentence (other than the rubber stamp metaphor). Not only do I doubt that there is a legal definition of colony that would apply in such circumstances, but I am also not sure that this fact situation meant that Canada was a colony until 1982 as the term is normally understood. This is the sort of thing that would have to be pretty clearly and unambiguously sourced to remain in the article. Hopefully someone can point us in the right direction. --Skeezix1000 (talk) 19:37, 16 November 2010 (UTC)

The British North America Act, 1871, especially section 5, may be what is being referred to by "retroactively legitimate", but I don't know of any similar British legislation. I agree that it does not support the conclusions stated without citations to support them. Indefatigable (talk) 04:56, 17 November 2010 (UTC)
You're right - that might be the sort of thing the author of the sentences in question had in mind. However, that 1871 Act is constitutional in nature, and I don't think there is any dispute that Canada had to get Westminster to rubber stamp constitutional changes prior to 1982. I'm not aware, however. of any times where the British Parliament passed legislation (enabling or otherwise) for Canada that was not constitutional in nature.--Skeezix1000 (talk) 17:15, 17 November 2010 (UTC)
Interestingly, a sentence later on in respect of the 1982 patriation says: "Ratified by all provinces except Quebec, this was the formal Canadian Act of Parliament that achieved full and final political independence from the United Kingdom. Part V of this Act established an amending formula for the Canadian Constitution, the lack of which (due to more than 50 years of disagreement between the federal and provincial governments) was the only reason Canada's actions still required quarterly approval by the British Parliament after ratification of the Statute of Westminster in 1931." (underlining added) What is this quarterly approval? As in every four months? Does anyone know? --Skeezix1000 (talk) 17:21, 17 November 2010 (UTC)
Interesting that the 1982 Constitution has that phrasing - but does the British North America Act? Because we're all taught that Canada was made a Dominion, which was a new category of imperial organization, concocted so that we were not the "Kingdom of Canada" so as not to offend the yanquitos. Doesn't sound much different than "home rule" although that term didn't come along until the Irish revolts of the early 20th C. And colonial legislation had, SFAIK, a different process for ratification/approval than Dominion legislation. Maybe true colonies were monitored/governed by the Colonial Office, whereas "we" were by Parliament (maybe the Home Office?). Not sure about that quarterly approval thing, i.e. how long that remained in practice - did the British Parliament really, four times a year, review all legislation of the Canadian Parliament? I know there were Law Lords appeals right up into the '70s. Whatever the case I submit that it's the wording of the British North America Act that has primacy for describing what we were in 1871-1982, and that the wording of the Constitution Act of 1982 is a post facto descriptor, and indeed political in its overtone of describing us as a colony (as justification for hte Act). We certainly weren't a Crown Colony in 1982....Skookum1 (talk) 18:05, 17 November 2010 (UTC)
What phrasing are you referring to? BTW, the appeals to the JCPC, not the Law Lords, ended in 1949 (although cases that were already in the pipe prior to 1949 maintained appeal rights until they concluded). --Skeezix1000 (talk) 21:48, 17 November 2010 (UTC)
I may be way out of my element commenting on this, but I thought I'd do a little searching on the topic. I found this phrase curious, ...Canada was still legally a colony instead of a fully-fledged member of the sisterhood of nation-states. Is there really a bright line between "colony" and "fully-fledged member of the sisterhood of nation-states"? First I thought of the UN. Well, Canada was admitted to the UN in 1945 (UN Member States). Then I thought about international treaty-making and found an interesting webpage: International Treaties: Canadian Practice. In particular this paragraph (footnotes in parentheses):
  • The Government of Canada gradually intervened on its own initiative in discussions relating to the negotiation of international treaties and conventions(2) and over the years the country increasingly took independent action in its external affairs.(3) After the First World War, the federal government acted on its own authority internationally and the British authorities merely ratified the treaties put before them. In 1931, under the Statute of Westminster, Canada and a number of other British dominions, acquired full independence(4) and with it authority to act internationally with all the attributes of a sovereign state. Full power over foreign affairs was thus conferred on Canada and section 132 of the Constitution Act, 1867 became obsolete.
However, the 4th footnote, following "acquired full independence", says, Except with respect to amendments to Canada’s Constitution, which remained under the British Parliament’s jurisdiction until 1982. I realize y'all are talking about this above already, but I thought this source might be of interest. It seems to me that British control of amendments to Canada's constitution hardly disqualify Canada as a "fully-fledged member of the sisterhood of nation-states". I would think other nations have similar, minor "power dependencies" among one another, here and there, no? Perhaps it is just a matter of wording things better. Pfly (talk) 18:19, 17 November 2010 (UTC)

This seems to me like a case of bad and misleading wording. Certainly Canada still had to approach the UK Parliament to pass a constitutional amendment until the constitution was patriated in 1982, but this was just a formality — the UK had no real authority to refuse such a request, or to dictate the content of our constitution; that authority already rested with us, and the only reason we had to go to them for rubberstamping at all was because we had the obvious difficulties reaching the final patriation agreement. And as already noted, the Statute of Westminster 1931 ensured that Canada had complete legislative authority over our own affairs; even then, we effectively already had it in practice and that just made it official. So while you could certainly make a case (albeit still a POV one) that Canada was still legally a British colony prior to Westminster, there's no real basis for such a claim after that. It's kind of like a company or institution that begins operating some time before its "official opening"; it simply took us a bit longer to agree on how to formalize an independence that we already had in actual practice. There are better ways to express the situation than the disputed paragraph, certainly. Bearcat (talk) 19:33, 17 November 2010 (UTC)

I agree completely, and Pfly has found a good source for the constitutional rubber stamping. --Skeezix1000 (talk) 22:08, 17 November 2010 (UTC)
The questionable text has been removed and Pfly's source added. Thanks all. --Skeezix1000 (talk) 17:48, 17 December 2010 (UTC)

"Ratified by all provinces except Quebec"[edit]

Correct me if I'm wrong, but there was no legal requirement that any constitutional amendment be approved by the provinces at this time, much less "ratified". What really happened is that Québec's premier objected to the newly-decided amending formulae after a first ministers' conference. SCC has said that convention suggested that general consensus be sought from the provincial governments before asking the UK to table a constitutional amendment, but as this was not a legal requirement, I think we ought to clarify our language for the sake of being precise. Jagislaqroo (talk) 19:12, 17 December 2010 (UTC)

Agreed and good catch. Just to be clear - constitutional conventions can be legal requirements. But the term "ratified" in this context does, as you say, suggest that there was a prior amending formula in the constitution that required provincial sign-off. The term a bit of an Americanism. --Skeezix1000 (talk) 22:18, 17 December 2010 (UTC)

Is royal assent excluded?[edit]

Given that the article is incomplete if it does not let the reader know whether or not the amendment procedure introduced by the 1982 act excludes royal assent for any particular amendment to the Constitution under Part V of the Act,[1] is the inclusion of that information stalled for lack of secondary sources? Qexigator (talk) 09:43, 25 May 2015 (UTC)