Canada - Constitution Act 1982
School
Law
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{ Adopted in: 1982 }
{ ICL Document Status: 14 April 1994 }
Part I Canadian Charter of Rights and Freedoms
[Preamble]
Whereas Canada is founded upon the principles that recognize the
supremacy
of God and the rule of law:
[Title 1] Guarantee of Rights and Freedoms
Section 1 [Limitation of Rights]
The Canadian Charter of Rights and Freedoms guarantees the rights
and
freedoms
set out in it subject only to such reasonable limits prescribed by
law
as
can be demonstrably justified in a free and democratic society.
[Title 2] Fundamental Freedoms
Section 2 [Freedom of Religion, Speech, Association]
Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including
freedom
of the press and other means of communication;
(c) freedom of peaceful assembly and
(d) freedom of association.
[Title 3] Democratic Rights
Section 3 [Electoral Rights]
Every citizen of Canada has the right to vote in an election of
members
of
the House of Commons or of a legislative assembly and to be
qualified
for
membership therein.
Section 4 [Term Limits]
(1) No House of Commons and no legislative assembly shall continue
for
longer
than five years from the date fixed for the return of the writs at a
general
election of its members.
(2) In time of real or apprehended war, invasion or insurrection, a
House
of Commons may be continued by Parliament and a legislative assembly
may
be continued by the legislature beyond five years if such
continuation
is
not opposed by the votes of more than one-third of the members of
the
House
of Commons or the legislative assembly, as the case may be.
Section 5 [Minimum Sessions]
There shall be a sitting of Parliament and of each legislature at
least
once
every twelve months.
[Title 4] Mobility Rights
Section 6 [Freedom to Move]
(1) Every citizen of Canada has the right to enter, remain in, and
leave
Canada.
(2) Every citizen of Canada and every person who has the status of a
permanent
resident of Canada has the right
(a) to move to and take up residence in an province; and
(b) to pursue the gaining of livelihood in any province.
(3) The rights specified in Subsection (2) are subject to
(a) any laws or practices of general application in force in a
province
other
than those that discriminate among persons primarily on the basis of
present
or previous residence; and
(b) any laws providing for reasonable residency requirements as a
qualification
for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or
activity
that has as its object the amelioration in a province of conditions
of
individuals
in that province who are socially or economically disadvantaged if
the
rate
of employment in that province is below the rate of employment in
Canada.
[Title 5] Legal Rights
Section 7 [Personal Integrity]
Everyone has the right to life, liberty, and security of the person
and
the
right not to be deprived thereof except in accordance with the
principles
of fundamental justice.
Section 8 [Search and Seizure]
Everyone has the right to be secure against unreasonable search or
seizure.
Section 9 [Imprisonment]
Everyone has the right not to be arbitrarily detained or imprisoned.
Section 10 [Arrest]
Everyone has the right on arrest or detention
(a) to be informed promptly of the reason therefor;
(b) to retain and instruct counsel without delay and to be informed
of
that
right; and
(c) to have the validity of the detention determined by way of
habeas
corpus
and to be released if the detention is not lawful.
Section 11 [Fair Trial]
Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific
offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in a proceedings against
that
person
in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in
a
fair
and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without cause;
(f) except in the case of an offence under military law tried before
a
military
tribunal, to the benefit of trial by jury where the maximum
punishment
for
the offence is imprisonment for five years or a more severe
punishment;
(g) not to be found guilty on account of any act or omission unless,
at
the
time of the act or omission, it constituted an offence under
Canadian
or
International law or was criminal according to the general
principles
of
law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it
again
and,
if finally found guilty and punished for the offence, not to be
tried
or
punished for it again; and
(i) if found guilty of the offence and if punishment for the offence
has
been varied between the time of commission and the time of
sentencing,
to
the benefit of the lesser punishment.
Section 12 [No Cruel Punishment]
Everyone has the right not to be subjected to any cruel or unusual
treatment
or punishment.
Section 13 [Right Against Self-Incrimination]
A witness who testifies in any proceedings has the right not to have
any
incriminating evidence so given used to incriminate that witness in
any
other
proceedings, except in a prosecution for perjury or for the giving
of
contradictory
evidence.
Section 14 [Right to Interpreter]
A party or witness in any proceedings who does not understand or
speak
the
language in which the proceedings are conducted or who is deaf has
the
right
to the assistance of an interpreter.
[Title 6] Equality Rights
Section 15 [General Equality, No Discrimination]
(1) Every individual is equal before the and under the law and has
the
right
to the equal protection and equal benefit of the law without
discrimination
based on race, national or ethnic origin, colour, religion, sex,
age,
or
mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity
that
has
as its object the amelioration of conditions of disadvantaged
individuals
or groups including those that are disadvantaged because or race,
national
or ethnic origin, colour, religion, sex, age, or mental or physical
disability.
[Title 7] Official Languages of Canada
Section 16 [English, French]
(1) English and French are the official languages of Canada and have
equal
rights and privileges as to their use in all institutions of the
Parliament
and government of Canada.
(2) English and French are the official languages of New Brunswick
and
have
equality of status and equal rights and privileges as to the use in
all
institutions
of the legislature and government of New Brunswick.
(3) Nothing in this Charter limits the authority of Parliament of a
legislature
to advance the equality of status or use of English and French.
Section 16.1 [New Brunswick]
(1) The English linguistic community and the French linguistic
community
in New Brunswick have equality of status and equal rights and
privileges,
including the right to distinct educational institutions and such
distinct
cultural institutions as are necessary for the preservation and
promotion
of those communities.
(2) The role of the legislature and the government of New Brunswick
to
preserve
and promote the status, rights and privileges referred to in
Subsection
(1)
is affirmed.
Section 17 [Parliamentary Languages]
(1) Everyone has the right to use English or French in any debates
or
other
proceedings of Parliament.
(2) Everyone has the right to use English or French in any debate
and
other
proceeding of the legislature of New Brunswick.
Section 18 [Legislative Languages]
(1) The Statutes, records and journals of Parliament shall be
printed
and
published in English and French and both language
versions are equally authoritative.
(2) The Statutes, records and journals of New Brunswick shall be
printed
and published in English and French and both language versions are
equally
authoritative.
Section 19 [Court Languages]
(1) Either English or French may be used by any person in, or in any
pleading
in or process issuing from any court established by Parliament.
(2) Either English or French may be used by any person in, or in any
pleading
in or process issuing from any court of New Brunswick.
Section 20 [Administrative Languages]
(1) Any member of the public of Canada has the right to communicate
with,
and to receive available services from, any head or central office
of
an
institution of the Parliament or government of Canada in English or
French,
and has the same right with respect to any other office of any such
institution
where
(a) there is significant demand for communications with and services
from
that office in such language; or
(b) due to the nature of the office, it is reasonable that
communications
with and services from that office be available in both English and
French.
(2) Any member of the public in New Brunswick has the right to
communicate
with, and to receive available services from, any office of an
institution
of the legislature or government of New Brunswick in English or
French.
Section 21 [Other Language Provisions]
Nothing in Sections 16 to 20 abrogates or derogates from any right,
privilege,
or obligation with respect to the English and French languages, or
either
of them, that exists or is continued by virtue of any other
provision
of
the Constitution of Canada.
Section 22 [Prior Language Rights]
Nothing in Sections 16 to 20 abrogates or derogates from any legal
or
customary
right or privilege acquired or enjoyed either before or after the
coming
into force of this Charter with respect to any language that is not
English
or French.
[Title 8] Minority Language Educational Rights
Section 23 [Educational Languages]
(1) Citizens of Canada
(a) whose first language learned and still understood is that of the
English
or French linguistic minority population of the province in which
they
reside,
or
(b) who have received their primary school instruction in Canada in
English
or French and reside in a province where the language in which they
received
that instruction is the language of the English or French linguistic
minority
population of the province,
have the right to have their children receive primary and secondary
school
instruction in that language in that province.
(2) Citizens of Canada of whom any child has received or is
receiving
primary
or secondary school instruction in English or French in Canada, have
the
right to have all their children receive primary and secondary
school
instruction
in the same language.
(3) The right of citizens of Canada under Subsections (1) and (2)
to have their children receive primary and secondary school
instruction
in
the language of the English or French linguistic minority population
of
a
province
(a) applies wherever in the province the number of children of
citizens
who
have such a right is sufficient to warrant the provision to them out
of
public
funds of minority language instruction; and
(b) includes, where the number of children so warrants, the right to
have
them receive that instruction in minority language educational
facilities
provided out of public funds.
Section 29 [School Privileges]
Nothing in this Charter abrogates or derogates from any rights or
privileges
guaranteed by or under the Constitution of Canada in respect of
denominational,
separate, or dissentient schools.
Section 30 A reference in this Charter to a Province
or
to
the legislative assembly or legislature of a province shall be
deemed
to include
a reference to the Yukon Territory
and the
Northwest Territories,
or to the appropriate legislative authority thereof, as the case may
be.
Section 31 Nothing in this Charter extends the legislative
powers
of any body or authority.
Section 32 (1) This Charter
applies
a) to the
Parliament
and government of Canada in respect of all matters within the
authority
of Parliament including all matters relating to the Yukon
Territory and
Northwest Territories; and
b) to the
legislature
and government of each province in respect of all matters within
the
authority
of the legislature of each province.
(2) Notwithstanding subsection (1), section 15 shall not have
effect
until
three years after this section comes into force.
Section 33 (1) Parliament or the
legislature
of a province may expressly declare in an Act of Parliament or of
the
legislature,
as the case may be, that the Act or a
provision
thereof shall operate notwithstanding a provision included in
section
2 or sections 7 to 15 of this Charter.
(2) An
Act
or a provision of an Act in respect of which a declaration made
under
this section is in effect shall have such operation as it would
have but
the
provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have
effect
five years after it comes into force or on such earlier date as
may be
specified in the
declaration.
(4)
Parliament or the legislature of a province may re-enact a
declaration
made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under
subsection
(4).
Section 34 This Part may be cited as the Canadian
Charter
of Rights and Freedoms.
CANADIAN CONSTITUTION
Section 93. [Education]
http://www.solon.org/Constitutions/Canada/English/ca_1867.html
http://www.solon.org/Constitutions/Canada/English/
.In and for each Province the Legislature may exclusively make Laws
in
relation
to Education, subject and according to the following Provisions:--
(1) Nothing in any such Law shall prejudicially affect any Right or
Privilege
with respect to Denominational Schools which any Class of Persons
have
by
Law in the Province at the Union:
(2) All the Powers, Privileges and Duties at the Union by Law
conferred
and
imposed in Upper Canada on the Separate Schools and School Trustees
of
the
Queen's Roman Catholic Subjects shall be and the same are hereby
extended
to the Dissentient Schools of the Queen's Protestant and Roman
Catholic
Subjects
in Quebec:
(3) Where in any Province a System of Separate or Dissentient
Schools
exists
by Law at the Union or is thereafter established by the Legislature
of
the
Province, an Appeal shall lie to the Governor General in Council
from
any
Act or Decision of any Provincial Authority affecting any Right or
Privilege
of the Protestant or Roman Catholic Minority of the Queen's Subjects
in
relation
to Education:
(4) In case any such Provincial Law as from Time to Time seems to
the
Governor
General in Council requisite for the Execution of the Provisions of
this
Section is not made, or in case any Decision of the Governor General
in
Council
on any Appeal under this Section is not duly executed by the proper
Provincial
Authority in that Behalf, then and in every such Case, and as far as
the
Circumstances of each Case require, the Parliament of Canada may
make
remedial
Laws for the due Execution of the Provisions of this Section and of
any
Decision
of the Governor General in Council under this Section.(50)
93A. Paragraphs (1) to (4) of section 93 do not apply to Quebec.
(50.1)
SUBSEQUENT PROVINCIAL ACTS
Manitoba Act, 1870
http://www.solon.org/Constitutions/Canada/English/ma_1870.html
22. In and for the Province, the said Legislature may exclusively
make
Laws
in relation to education, subject and according to the following
provisions:--
(1) Nothing in any such Law shall prejudicially affect any right or
privilege
with respect to Denominational Schools which any class of persons
have
by
Law or practice in the Province the Union:--
(2) An appeal shall lie to the Governor General in Council from any
Act
or
decision of the Legislature of the Province, or of any Provincial
Authority,
affecting any right or privilege of the Protestant or Roman Catholic
minority
the Queen's subjects in relation to Education:
(3) In case any such Provincial Law, as from time to time seems to
the
Governor
General in Council requisite for the due execution of the provisions
of
this
section, is not made, or in case any decision of the Governor
General
in
Council on any appeal under this section is not duly executed by the
proper
Provincial Authority in that behalf, then, and in every such case,
and
as
far only as the circumstances of each case require, the Parliament
of
Canada
may make remedial Laws for the due execution of the provisions of
this
section,
and of any decision of he Governor General in Council under this
section.
Newfoundland Act 1949
http://www.solon.org/Constitutions/Canada/English/nfa.html
EDUCATION
17. (1) In lieu of section ninety-three of the Constitution Act,
1867,
this
Term shall apply in respect of the Province of Newfoundland and
Labrador:
(2) In and for the Province of Newfoundland and Labrador, the
Legislature
shall have exclusive authority to make laws in relation to education
but
shall provide for courses in religion that are not specific to a
religious
denomination.
(3) Religious observances shall be permitted in a school where
requested
by parents.
Alberta Act 1905
http://www.solon.org/Constitutions/Canada/English/aa_1905.html
17. Section 93 of the Constitution Act, 1867 shall apply to the said
province,
with the substitution for paragraph (1) of the said section 93, of
the
following
paragraph:-
"(1) Nothing in any such law shall prejudicially affect any right or
privilege
with respect to separate schools which any class of persons have at
the
date
of the passing of this Act, under the terms of chapters 29 and 30 of
the
Ordinances of the North-west Territories, passed in the year 1901,
or
with
respect to religious instruction in any public or separate school as
provided
for in the said ordinances."
(2) In the appropriation by the Legislature or distribution by the
Government
of the province of any moneys for the support of schools organized
and
carried
on in accordance with the said chapter 29, or any Act passed in
amendment
be no discrimination against schools of any class described in the
said
chapter
29.
(3) Where the expression "by law" is employed in paragraph (3) of
the
said
section 93, it shall be held to mean the law as set out in the said
chapters
29 and 30; and where the expression "at the Union" is employed, in
the
said
paragraph (3), it shall be held to mean the date at which this Act
comes
into force.
Saskatchewan Act 1905
http://www.solon.org/Constitutions/Canada/English/sa_1905.html
17. Section 93 of the Constitution Act, 1867 shall apply to the said
province,
with the substitution for paragraph (1) of the said section 93, of
the
following
paragraph:-
"(1) Nothing in any such law shall prejudicially affect any right or
privilege
with respect to separate schools which any class of persons have at
the
date
of the passing of this Act, under the terms of chapters 29 and 30 of
the
Ordinances of the North-west Territories, passed in the year 1901,
or
with
respect to religious instruction in any public or separate school as
provided
for in the said ordinances."
(2) In the appropriation by the Legislature or distribution by the
Government
of the province of any moneys for the support of schools organized
and
carried
on in accordance with the said chapter 29, or any Act passed in
amendment
be no discrimination against schools of any class described in the
said
chapter
29.
(3) Where the expression "by law" is employed in paragraph (3) of
the
said
section 93, it shall be held to mean the law as set out in the said
chapters
29 and 30; and where the expression "at the Union" is employed, in
the
said
paragraph (3), it shall be held to mean the date at which this Act
comes
into force.
(2) Term 17 of the Terms of Union of Newfoundland with Canada set
out
in
the Schedule to the said Act is further amended by adding thereto
the
following:
Constitution Amendment, 1987 (Newfoundland Act) extended education
rights
to the Pentecostal Church.
"(2) For the purposes of paragraph one of this Term, the Pentecostal
Assemblies
of Newfoundland have in Newfoundland all the same rights and
privileges
with
respect to denominational schools or denominational colleges as any
other
class or classes of persons by law in Newfoundland at the date of
Union,
and the words "all such schools" in paragraph (a) of paragraph one
of
this
Term and the words "all such colleges" in paragraph (b) of paragraph
one
of this Term include, respectively, the schools and the colleges of
the
Pentecostal Assemblies of Newfoundland."
Constitution Amendment, 1997 (Newfoundland Act).
http://www.solon.org/Constitutions/Canada/English/cap_1987.html
1. Term 17 of the Terms of Union of Newfoundland with Canada set out
in
the
Schedule to the Newfoundland Act is repealed and the following
substituted
therefor:
"17. In lieu of section ninety-three of the Constitution Act, 1867,
the
following
shall apply in respect of the Province of Newfoundland:
In and for the Province of Newfoundland, the Legislature shall have
exclusive
authority to make laws in relation to education but
(a) except as provided in paragraphs (b) and (c), schools
established,
maintained
and operated with public funds shall be denominational schools, and
any
class
of persons having rights under this Term as it read on January 1,
1995
shall
continue to have the right to provide for religious education,
activities
and observances for the children of that class in those schools, and
observances
for the children of that class in those schools, and the group of
classes
that formed one integrated school system by agreement in 1969 may
exercise
the same rights under this Term as a single class of persons;
(b) subject to provincial legislation that is uniformly applicable
to
all
schools specifying conditions for the establishment or continued
operation
of schools,
(i) any class of persons referred to in paragraph (a) shall have the
right
to have a publicly funded denominational school established,
maintained
and
operated especially for that class, and
(ii) the Legislature may approve the establishment, maintenance and
operation
of a publicly funded school, whether denominational or
non-denominational;
(c) where a school is established, maintained and operated pursuant
to
subparagraph
(b)(i), the class of persons referred to in that subparagraph shall
continue
to have the right to provide for religious education, activities and
observances
and to direct the teaching of aspects of curriculum affecting
religious
beliefs,
student admission policy and the assignment and dismissal of
teachers
in
that school;
(d) all schools referred to in paragraphs (a) and (b) shall receive
their
share of public funds in accordance with scales determined on a
non-discriminatory
basis from time to time by the Legislature; and
(e) if the classes of persons having rights under this Term so
desire,
they
shall have the right to elect in total not less than two thirds of
the
members
of a school board, and any class so desiring shall have the right to
elect
the portion of that total that is proportionate to the population of
that
class in the area under the board's jurisdiction."
Constitution Amendment, 1997 (Quebec) permitted the province to
replace
the
denominational school boards with ones organized on linguistic
lines.
. The Constitution Act, 1867, is amended by adding,
immediately
after
section 93, the following: Quebec "93A. Paragraphs (1) to (4) of
section
93 do not apply to Québec."
Constitution Amendment, 1998 (Newfoundland) allowed the province to
abolish
the denominational school system.
http://www.sfu.ca/~aheard/term17.html
[The following is substituted for Term 17 in the Terms of Union
between
Newfoundland
and Canada:]
17. (1) In lieu of section ninety-three of the Constitution Act,
1867,
this
section shall apply in respect of the Province of Newfoundland.
(2) In and for the Province of Newfoundland, the Legislature shall
have
exclusive
authority to make laws in relation to education, but shall provide
for
courses
in religion that are not specific to a religious denomination.
(3) Religious observances shall be permitted in a school where
requested
by parents.
The Constitution Of Canada
http://www.nelson.com/nelson/polisci/constitution.html
THE CONSTITUTION OF CANADA
All laws, rules, and practices that structure the way the Canadian
political
system runs add up to the "constitution" of Canada. The Constitution
includes
a great many statutes, orders-in-council, and judicial decisions
that
interpret
these documents. In addition, there are informal rules, called
constitutional
conventions, that regulate how our political actors behave. Finally,
there
are some traditions and customs that may not be obligatory but are
followed.
The late Eugene Forsey briefly describe the workings of
parliamentary
government,
which largely depend on informal, conventional rules. This is an
extract
from one of his publications, How Canadians Govern Themselves, which
is
also
available on-line.
When most people refer to the Constitution, they may be thinking of
a
subset
of the rules that makes up the formal "Constitution of Canada."
Section
52(2)
of the Constitution Act, 1982 outlines what documents are part of
the
formal
Constitution. This is a special collection of rules, declared to be
the
"supreme
law of Canada," that takes precedence over any other law. The
Constitution
can only be changed according to the amending formulas set out in
Part
V
of the Constitution Act, 1982 (see below). More than two dozen
documents
were included in the 1982 description of the Constitution, and since
then
six new constitutional amendments have been added to the list.
Peter Oliver has written an interesting article, " The 1982
Patriation
of
the Canadian Constitution - Reflections on Continuity and Change,"
that
provides
an overview analysis of the significance of, and the events
surrounding,
the Constitution Act, 1982.
CONSTITUTIONAL DOCUMENTS
For a comprehensive list of documents that relate to Canada's
Constitution—and
the full text of those documents—you should visit William F. Maton's
collection
of constitutional documents and proposals. There you will find the
"Constitution
of Canada" documents, as well as other important historical
documents
and
constitutional proposals. The two most important constitutional
documents
are:
The Constitution Act, 1867. This statute of the British Parliament
created
Canada in 1867 and set out the division of powers between the
federal
and
provincial governments. Its original name was the British North
America
Act,
1867, but this was changed in 1982.
The Constitution Act, 1982. This act created for the first time a
set
of
amending procedures for the Constitution to be amended entirely in
Canada.
Until 1982, many changes to the then British North America Acts had
to
be
carried out by the British Parliament. This act also includes the
Charter
of Rights & Freedoms. The Constitution Act, 1982, was actually
created
as a part of the Canada Act, 1982. The Canada Act ended any further
British
legislative authority over Canada.
Other documents that are of particular interest in Canada's
constitutional
development are:
The Royal Proclamation, 1763
The Quebec Act, 1774
The Constitutional Act, 1791
The Jay Treaty of 1794
Lord Durham's Report & Buller's Commentary (extract) (1838)
The Union Act, 1840
The Reciprocity Treaty, 1854
Colonial Laws Validity Act, 1865
Rupert's Land and North-Western Territory Order (June 23, 1870)
Manitoba Act, 1870
British Columbia Terms of Union (May 16, 1871)
Constitution Act, 1871
The Numbered Indian Treaties (1871-1922)
Prince Edward Island Terms of Union (1873)
The Yukon Territory Act, 1898
Saskatchewan Act (1905)
Alberta Act (1905)
Statute of Westminster, 1931
1947 Letters Patent for a Canadian Governor General
Newfoundland Act (1949)
British North America (No. 2) Act, 1949
1960 Canadian Bill of Rights
The federal government has a useful set of documents relating to the
Constitution
and its renewal. One of the sites provides background on the
Constitution
that may answer many questions. A detailed history of Canada's
constitutional
evolution is also provided here.
Another interesting site, run by the National Library of Canada, has
a
collection
of discussions about the pre-Confederation context and development
of
Canada's
Constitution.
CONSTITUTIONAL AMENDMENTS
There are five amending processes laid out in Part V of the
Constitution
Act, 1982. Since these amending formulas came into effect in 1982,
there
have been nine formal amendments to the Constitution of Canada:
Constitution Amendment Proclamation, 1983 dealt with Aboriginal
rights.
Constitution Act, 1985 (Representation) permitted future changes to
the
distribution
of seats for Parliament to be done by ordinary statute.
Constitution Amendment, 1987 (Newfoundland Act) extended education
rights
to the Pentecostal Church.
Constitution Amendment Proclamation, 1993 (New Brunswick Act) made
English
and French both official languages in New Brunswick.
Constitution Amendment Proclamation, 1993 (Prince Edward Island)
cleared
the way for the "fixed link" bridge to replace ferry services to
P.E.I.
Constitution Amendment Proclamation, 1997 (Newfoundland Act) allowed
the
Province of Newfoundland to create a secular school system to
replace
the
church-based education system.
Constitution Amendment, 1997 (Quebec) permitted the province to
replace
the
denominational school boards with ones organized on linguistic
lines.
Constitution Amendment, 1998 (Newfoundland) allowed the province to
abolish
the denominational school system.
Constitution Act, 1999 (Nunavut) provides for representation in the
House
of Commons and the Senate for the Nunavut Territory.
Regional Vetoes
The federal government enacted legislation in 1996 that effectively
places
a new amending process on top of the "7 & 50" formula of s.38 of
the
Constitution Act, 1982, with a statutory requirement that the
federal
government
can only introduce constitutional amendments that have broad
regional
support.
In effect, this has created a system of regional vetoes to
amendments
under
s.38. You can read the details in the Constitutional Amendments Act.
There are serious issues with the desirability and constitutionality
of
the
regional veto formula. For a flavour of this debate, see the
evidence
of
witnesses who appeared before the Special Senate Committee that
examined
the Bill (C-110).
Proposed Amendments
A number of proposals for major changes to the Constitution have
been
made
over the years, without success. Several comprehensive packages have
come
close, having initial agreement among the first ministers, but
failed
to
get enough sustained support to be made into law.
The first ministers have agreed on two other sets of proposed
amendments,
but they failed to pass:
The Meech Lake Accord was originally agreed to by all ten premiers
and
the
Prime Minister of Canada in 1987, and again in 1990. But this
measure
failed
to gain approval of all the legislatures.
The Charlottetown Accord, negotiated in 1992 with unanimous
agreement
among
the first ministers, also failed to become law. It is available in
two
versions
on-line: the plain-English Consensus Report and the legal text.
The Charlottetown Accord was defeated in two referendums held
simultaneously:
one was organized by the Quebec government in Quebec, while the
federal
government
organized the referendum in the rest of Canada.
The results of the 1995 Quebec Sovereignty Referendum are available
on-line.
With the precedent of the 1992 referendum, many believe that a
future
package
of constitutional amendments could not be passed without popular
approval
through another referendum. Indeed, both Alberta and British
Columbia
have
legislation that requires the holding of a referendum in those
provinces
on constitutional amendments. In the case of Alberta, the referendum
must
be held before a vote is held in the legislature on the resolution
to
amend
the Constitution. The B.C. government has to put any proposed
amendment
to
a referendum even before introducing a motion in the legislature.
For details, see Alberta's Constitutional Referendum Act and B.C.'s
Constitutional
Amendment Approval Act.
A number of citizens' groups have emerged since the Meech Lake
negotiations
to demand that future constitutional renewal not be left to the
first
ministers
alone. They suggest that a constituent assembly (sometimes called a
citizens'
forum or constitutional convention) be created with representation
from
various
groups in Canadian society. For information on this idea, connect
to: