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Article

Constitution of Canada

The Constitution of Canada is the country’s governing legal framework. It defines the powers of the executive branches of government and of the legislatures at both the federal and provincial levels. Canada’s Constitution is not one document; it is a complex mix of statutes, orders, British and Canadian court decisions, and generally accepted practices known as constitutional conventions. In the words of the Supreme Court of Canada, “Constitutional convention plus constitutional law equal the total constitution of the country.” The Constitution provides Canada with the legal structure for a stable, democratic government.

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Guerin Case

The Guerin case (R. v. Guerin) resulted in a pivotal decision by the Supreme Court of Canada in 1984 about Indigenous rights. It centred on the fiduciary (guardian or trustee) responsibility of the Crown to consult openly and honestly with Indigenous peoples before making arrangements for the use of their land. (See also Duty to Consult.) For the first time, it established that the Crown has a legal responsibility to First Nations and not simply a moral one. It also recognized Aboriginal title to their land to be a sui generis (Latin for “unique”) right.

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Charlottetown Conference

The Charlottetown Conference set Confederation in motion. It was held from 1–9 September 1864 in Charlottetown, with additional meetings the following week in Halifax, Saint John and Fredericton. The conference was organized by delegates from New BrunswickNova Scotia and Prince Edward Island to discuss the union of their three provinces. They were persuaded by a contingent from the Province of Canada, who were not originally on the guest list, to work toward the union of all the British North American colonies. The Charlottetown Conference was followed by the Quebec Conference (10–27 October 1864) and the London Conference (December 1866–March 1867). They culminated in Confederation on 1 July 1867.

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The American Response to the Canadian Rebellions of 1837–38

By December 1837 and January 1838, rebels from Upper and Lower Canada had suffered heavy defeats at the hands of British and Loyalist forces. (See: Rebellion in Lower Canada; Rebellion in Upper Canada.) They fled to the United States to seek financial and military assistance. The American public was aware that there had been armed conflicts in the Canadas. Many were even initially supportive. However, the presence of Canadian rebels on American soil forced many to question American involvement. The growing tensions with Great Britain over the Caroline Affair complicated matters. The creation of the Republic of Texas and the fight over the abolition of slavery were also factors. In January 1838, US President Martin Van Buren took steps to ensure America’s neutrality in the Canadian rebellions.

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Governor General of Canada

Canada is a constitutional monarchy. As such, there is a clear division between the head of state and the head of government. The head of government is the prime minister, an elected political leader. The head of state is the Canadian monarch; their duties are carried out by the governor general, who acts as the representative of the Crown — currently Elizabeth II — in Canada. (Lieutenant-Governors fulfill a similar role in provincial governments.) The governor general has extensive ceremonial duties. They also fulfill an important role in upholding the traditions of Parliament and other democratic institutions. Canada’s most recent governor general was Julie Payette. Following her resignation on 21 January 2021, the chief justice of the  Supreme Court of Canada, Richard Wagner, assumed the responsibilities of the office until a replacement could be confirmed.

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Newfoundland and Labrador and Confederation

Attempts to bring Newfoundland into Confederation in the 1860s and 1890s were met with lukewarm interest in the colony. In 1934, Newfoundland was in bankruptcy during the Great Depression. It suspended responsible government and accepted an unelected Commission Government directed by Britain. In a 1948 referendum, Newfoundlanders were given the choice to either continue with th Commission Government, join Canada, or seek a return to responsible government as an independent dominion. The independence option won the first vote. But the Confederation option won a run-off vote with 52.3 per cent support. The British and Canadian parliaments approved of the union. Newfoundland became Canada’s 10th province on 31 March 1949. In 2001, the province’s name was officially changed to Newfoundland and Labrador.

Editorial

Editorial: The Charlottetown Conference of 1864 and the Persuasive Power of Champagne

On Monday, 29 August 1864, eight of 12 cabinet members from the government of the Province of Canadaboarded the steamer Queen Victoria in Quebec City. They had heard that representatives of Nova Scotia, New Brunswick and PEIwere meeting in Charlottetown to discuss a union of the Maritime colonies. (See Charlottetown Conference.) The Canadian officials hoped to crash the party. Their government was gripped in deadlock. Even old enemies such as John A. Macdonald and George Brownagreed that a new political arrangement was needed. As the Queen Victoria made its way slowly down the Gulf of St. Lawrence, the Canadians frantically worked on their pitch.

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Constitutional Act, 1791

The Constitutional Act, 1791 was an act of the British Parliament. Also known as the Canada Act, it divided the Province of Quebec into  Upper Canada and Lower Canada. The Act was a first step on the long path to Confederation, but its rigid colonial structures also set the stage for rebellion in the Canadas. (See Rebellions of 1837–38.) The Act was also notable for giving women who owned property in Lower Canada the right to vote — a high level of inclusion by the standards of the time.

Editorial

Editorial: Baldwin, LaFontaine and Responsible Government

The BaldwinLaFontaine government of 1848 has been called the “great ministry.” In addition to establishing responsible government, it had an incomparable record of legislation. It established a public school system and finalized the founding of the University of Toronto. It set up municipal governments and pacified French-Canadian nationalism after a period of unrest. Responsible government did not transform Canada overnight into a fully developed democracy. But it was an important milestone along the road to political autonomy. Most importantly, it provided an opportunity for French Canadians to find a means for their survival through the British Constitution. The partnership and friendship between Baldwin and LaFontaine were brilliant examples of collaboration that have been all too rare in Canadian history.

Editorial

Editorial: William Lyon Mackenzie and the Rebellion in Upper Canada

At 8:00 p.m. on Monday, 4 December 1837, William Lyon Mackenzie set out by horse down Yonge Street to scout the route for his attack on Toronto. At the top of Gallows Hill (below St. Clair Ave.) he met Tory alderman John Powell, himself on patrol from the city. Mackenzie and his men took Powell prisoner. “Do you have a gun?” Mackenzie asked Powell. “No,” Powell replied. Mackenzie took his word as a gentleman and sent him back toward the rebel headquarters at Montgomery’s Tavern.

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Constitutional History of Canada

The Constitution of Canada is the country’s governing legal framework. It defines the powers of the executive branches of government and of the legislatures at both the federaland provincial levels. Canada’s Constitution is not one legal document. It is a complex mix of statutes, orders, British and Canadian court decisions, and generally accepted practices known as constitutional conventions. The Constitution has been in constant evolution from colonial times to the present day. The story of the Constitution is the story of Canada itself. It reflects the shifting legal, social and politicalpressures facing Canadians, as well as their choices as a society.

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Dominion of Canada

Dominion of Canada is the country’s formal title, though it is rarely used. It was first applied to Canada at Confederation in 1867. It was also used in the formal titles of other countries in the British Commonwealth. Government institutions in Canada effectively stopped using the word Dominion by the early 1960s. The last hold-over was the term Dominion Day, which was officially changed to Canada Day in 1982. Today, the word Dominion is seldom used in either private or government circles.

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Emergencies Act

In July 1988, the War Measures Act was repealed and replaced by the Emergencies Act. The Emergencies Act authorizes “the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof.” In contrast to the sweeping powers and violation of civil liberties authorized by the War Measures Act, the Emergencies Act created more limited and specific powers for the federal government to deal with security emergencies of five different types: national emergencies; public welfare emergencies; public order emergencies; international emergencies; and war emergencies. Under the Act, Cabinet orders and regulations must be reviewed by Parliament, meaning the Cabinet cannot act on its own, unlike under the War Measures Act. The Emergencies Act outlines how people affected by government actions during emergencies are to be compensated. It also notes that government actions are subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.

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Statute of Westminster, 1931

The Statute of Westminster is a British law that was passed on 11 December 1931. It was Canada’s all-but-final achievement of independence from Britain. It enacted recommendations from the Balfour Report of 1926, which had declared that Britain and its Dominions were constitutionally “equal in status.” The Statute of Westminster gave Canada and the other Commonwealth Dominions legislative equality with Britain. They now had full legal freedom except in areas of their choosing. The Statute also clarified the powers of Canada’s Parliament and those of the other Dominions. (See also Editorial: The Statute of Westminster, Canada’s Declaration of Independence.)

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Abortion in Canada

Abortion is the premature ending of a pregnancy. Inducing an abortion was a crime in Canada until 1988, when the Supreme Court of Canada struck down the law as unconstitutional. Since then, abortion has been legal at any stage in a woman’s pregnancy. Abortion is publicly funded as a medical procedure under the Canada Health Act. (See Health Policy.) However, access to abortion services differs across the country. Despite its legalization, abortion remains one of the most divisive political issues of our time.

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Canadian Bill of Rights

The Canadian Bill of Rights was the country’s first federal law to protect human rights and fundamental freedoms. It was considered groundbreaking when it was enacted by the government of John Diefenbaker in 1960. But it proved too limited and ineffective, mainly because it applies only to federal statutes and not provincial ones. Many judges regarded it as a mere interpretive aid. The bill was cited in 35 cases between 1960 and 1982; thirty were rejected by the courts. Though it is still in effect, the Bill of Rights was superseded by the Canadian Charter of Rights and Freedoms in 1982.

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Rep by Pop

Representation by population is a political system in which seats in a legislature are allocated on the basis of population. It upholds a basic principle of parliamentary democracy that all votes should be counted equally. Representation by population was a deeply divisive issue among politicians in the Province of Canada (1841–67). Nicknamed “rep by pop,” it became an important consideration in the lead up to Confederation. (See also: Representative Government; Responsible Government.)