Constitutions in transition
Constitutions in transition

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Constitutions in transition

4.2 Becoming Canada

Canada’s constitutional competency was a product of, and therefore characterised by, British law. It can be argued that British legislation was/is the cause of much unrest in the French Canadian province of Quebec and the reconciliation of the provinces is a peculiarly Canadian problem.

This problem was initiated by the enactment of the BNA in 1867. The BNA 1867 delineates, as a written constitution might be expected to, the character of the executive, the structure of the legislatures, and the relationship between the Parliament of Canada and the legislatures in each of the provinces. The Parliament of Canada, for instance, consists of a House of Commons – made up of elected representatives from each province, proportionate to population (ss37−52) – and a Senate, made up of an equal number of appointed representatives for each province (ss21−36).

So, the BNA 1867 offers a sense of the structural layout of the Canadian constitution in many of its sections. Most important, perhaps, is s91 BNA 1867, which states that:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces

This means that the Parliament of Canada would have legislative competency over all residual matters pertaining to the governance of Canada which were not expressly vested in each of the provinces by the BNA 1867.

So, the BNA 1867 recognised Canada as a country. More importantly, it also established the status of Canada as a dominion of the British Empire. As such, the BNA 1867 only granted limited powers to the Canadian national and provincial legislatures. One of the set limits related to the competency to amend the BNA 1867, i.e. the constituting principles of Canada: the BNA 1867 required Canada to seek amendments to be enacted in Westminster. As you can imagine, this had the potential to be a source of consternation for the people of Canada and gave rise (as will be discussed later), in the twentieth century, to some remarkable constitutional moments for Canada.

The Statute of Westminster 1931

The problem was somewhat lessened by the 1931 Statute of Westminster, which was introduced in the interactive map. An important caveat to the powers conferred in this statute was that any proposed amendments to the balance of power between national and provincial spheres of government would have to be passed in the Westminster Parliament.

It was found in Attorney-General of Manitoba v Attorney-General of Canada [1981] 1 SCR 753 that a constitutional convention existed to the effect that UK parliaments would only be compelled to do this if they could ascertain that such amendments were supported by a substantial number of provinces. For instance, an amendment could not be suggested if, as it was in the above case, only supported by two of ten provinces. Similarly, ‘a substantial number of provinces’ does not mean a simple majority of provinces, either.

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