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Constitution Act, 1982

The Constitution Act, 1982 is a landmark document in Canadian history. It achieved full independence for Canada by allowing the country to change its Constitution without approval from Britain. It also enshrined the Charter of Rights and Freedoms in Canada’s Constitution, the highest law of the land. The Act was passed after a fierce, 18-month political and legal struggle that dominated headlines and the agendas of every government in the country. (See Patriation of the Constitution.)

Editorial

Editorial: Newfoundland’s Contribution to the Patriation of the Constitution

In the decades since 1982, politicians and the media have recounted the same story about the patriation of Canada’s constitution and the adoption of the Charter of Rights and Freedoms. Most of the credit in this version goes to Prime Minister Pierre Trudeau. Three others are credited with breaking an impasse in the 1981 negotiations: federal justice minister Jean Chrétien, Saskatchewan attorney general Roy Romanow, and Ontario attorney general Roy McMurtry. But in his memoirs, former Newfoundland PremierBrian Peckford argues that the key intervention in the patriation process came from Peckford and the members of the Newfoundland delegation.

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Royal Proclamation of 1763

The Royal Proclamation of 1763 was issued by King George III on 7 October 1763. It established the basis for governing the North American territories surrendered by France to Britain in the Treaty of Paris, 1763, following the Seven Years’ War. It introduced policies meant to assimilate the French population to British rule. These policies ultimately failed and were replaced by the Quebec Act of 1774 (see also The Conquest of New France). The Royal Proclamation also set the constitutional structure for the negotiation of treaties with the Indigenous inhabitants of large sections of Canada. It is referenced in section 25 of the Constitution Act, 1982. As such, it has been labelled an “Indian Magna Carta” or an “Indian Bill of Rights.” The Proclamation also contributed to the outbreak of the American Revolutionary War in 1775. The Proclamation legally defined the North American interior west of the Appalachian Mountains as a vast Indigenous reserve. This angered people in the Thirteen Colonies who desired western expansion.

This is the full-length entry about the Royal Proclamation of 1763. For a plain language summary, please see Royal Proclamation of 1763 (Plain Language Summary).

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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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Chinese Head Tax in Canada

The Chinese head tax was enacted to restrict immigration after Chinese labour was no longer needed to build the Canadian Pacific Railway. Between 1885 and 1923, Chinese immigrants had to pay a head tax to enter Canada. The tax was levied under the Chinese Immigration Act (1885). It was the first legislation in Canadian history to exclude immigration on the basis of ethnic background. With few exceptions, Chinese people had to pay at least $50 to come to Canada. The tax was later raised to $100, then to $500. During the 38 years the tax was in effect, around 82,000 Chinese immigrants paid nearly $23 million in tax. The head tax was removed with the passing of the Chinese Immigration Act in 1923. Also known as the Chinese Exclusion Act, it banned all Chinese immigrants until its repeal in 1947. In 2006, the federal government apologized for the head tax and its other racist immigration policies targeting Chinese people.

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Patriation Reference

The Patriation Reference, formally known as Re: Resolution to Amend the Constitution, was a reference case of the Supreme Court of Canada. On 28 September 1981, the court decided that it was legal for the federal government to patriateand amend Canada’s Constitution without the consent of the provincial governments. But it also found that to do so in areas that affect provincial powers would be a breach of constitutional convention. The court’s decision concluded that such conventions are of great significance. In the words of the court, “Constitutional convention plus constitutional law equal the total constitution of the country.”

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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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Responsible Government

Responsible government refers to a government that is responsible to the people. In Canada, responsible government is an executive or Cabinet that depends on the support of an elected assembly, rather than a monarch or their representatives. A responsible government first appeared in Canada in the 1830s. It became an important part of Confederation. It is the method by which Canada achieved independence from Britain without revolution.

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Peace, Order and Good Government

“Peace, order and good government” is a phrase that is used in section 91 of the British North America Act of 1867 (now called the Constitution Act, 1867). It offers a vague and broad definition of the Canadian Parliament’s lawmaking authority over provincial matters. Since Confederation, it has caused tensions between federal and provincial governments over the distribution of powers. The phrase has also taken on a value of its own with Canadians beyond its constitutional purpose. It has come to be seen as the Canadian counterpart to the American “life, liberty and the pursuit of happiness” and the French “liberty, equality, fraternity.”

Editorial

Editorial: The Canadian Constitution Comes Home

In April 1982, as an Ottawa winter turned to spring, Queen Elizabeth II made her eleventh visit to Canada. She had come to make it official. After more than a half-century of trying, Canada would have its own constitution. A Canadian-made constitution was unfinished business from the country’s colonial past. The British North America Act in 1867 set out the jurisdictions of the federal and provincial governments and created the Dominion of Canada. It was, however, a law of the British Parliament, and it could only be amended (changed) by the British.

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Patriation of the Constitution

In 1982, Canada fully broke from its colonial past and “patriated” its Constitution. It transferred the country’s highest law, the British North America Act (which was renamed the Constitution Act, 1867), from the authority of the British Parliament to Canada’s federal and provincial legislatures. The Constitution was also updated with a new amending formula and a Charter of Rights and Freedoms. These changes occurred after a fierce, 18-month political and legal struggle that dominated headlines and the agendas of every government in the country.

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Confederation's Opponents

Opposition to Confederation has existed since a union of British North Americancolonies was first proposed in the late 1840s. In the eastern parts of the country, opponents generally feared that Confederation would strip power from the provincesand hand it to the federal government; or that it would lead to higher taxes and military conscription. Many of these opponents ultimately gave up and even served in the Canadian government. In the West, Indigenous peoples in the Red River Colonywere never asked if they wanted to join Confederation. Fearing for their culture and land rights under Canadian control, they mounted a five-month insurgency against the government. Many Quebec nationalistshave long sought to separate from Confederation, either through the extreme measures of the Front de libération du Québec (FLQ), or through referenda in 1980 and 1995.

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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.