British North America Act 1867 Ordinary Act of

British North America Act, 1867 Ø Ordinary Act of UK Parliament Ø Defined institutions of government, e. g. , Senate, Governor General, House of Commons, Provincial Legislatures Ø Distribution of powers and establishment of jurisdiction – e. g. provinces & education Ø No bill of rights Ø Most constitutional questions re: jurisdiction 10/2/2020 1

Some Charter History Ø Much opposition to idea of adopting a Charter Ø Revolutionary idea: Westminster model and parliamentary supremacy replaced with constitutional democracy and judicial review Ø Constitutional legality of Trudeau govt’s plan to implement Charter challenged in “Patriation Case” 10/2/2020 2

Reference Re Resolution to Amend the Constitution of Canada (1981) Claim: Patriation unconstitutional owing to lack of consent of all parties whose power affected – provincial & federal govt’s 10/2/2020 3

British North America Act, 1867 BNA Act Ø No amending formula Ø Ordinary act of UK Parliament Ø Thus, no means available to Canada to amend/alter except to make request to UK Parliament to make desired changes Ø Colonial legacy 10/2/2020 4

Questions Ø (1) Was it unconstitutional for Trudeau government to request the UK parliament to “patriate” the Constitution of Canada without provincial assent? Ø (2) If provincial assent required, was unanimous assent required? 10/2/2020 5

Answers Ø Yes, according to constitutional convention, but not constitutional law. Ø (2) Unanimous assent not required, but “a substantial measure” of provincial assent required 10/2/2020 6

Reasons for Judgment Ø The Constitution of Canada = Constitutional Law & Constitutional Conventions (Dicey) Ø Constitutional Law = Statutory & Common Law rules 10/2/2020 7

Constitutional Conventions Ø unwritten social rules Ø based on non-judicial custom and precedent Ø regulate activities of parts of the state: e. g. executive, legislative and judicial branches Ø sometimes reduced to written word 10/2/2020 8

Constitutional Conventions, cont’d Ø not enforceable by Courts Ø no formal legal sanctions for breach Ø usually political sanction (e. g. removal of GG from office) Ø generally circumscribe “wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all. ” 10/2/2020 9

Reasons for Judgment, cont’d Ø Convention existed requiring assent of provincial govt’s on matter affecting provincial powers Ø Adding Charter significantly affected provincial powers Ø Therefore “substantial measure” of provincial assent required 10/2/2020 10

Reasons for Judgment, cont’d Ø SCC did not define “substantial” Ø Trudeau government assumption: assent of all provinces except one satisfied criterion of substantial assent 10/2/2020 11

Reasons for Judgment, cont’d Ø Quebec later challenged assumption, but point was moot Ø Charter already “patriated” 10/2/2020 12

Pre-Enactment Concerns Re: Charter of Rights Ø Substituting Parliamentary supremacy with entrenched rights against gov’t Ø Judicial review by unelected judges Ø Unsettles too much settled law Ø Compromise: Sec 1 & 33 10/2/2020 13