Canada Act 1982

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  • Canada Act 1982
  • Loi de 1982 sur le Canada
Act of Parliament
Royal Coat of Arms of the United Kingdom (variant 1, 1952-2022).svg
Parliament of the United Kingdom
Long title
  • An Act to give effect to a request by the Senate and House of Commons of Canada.
  • (French: Loi donnant suite à une demande du Sénat et de la Chambre des communes du Canada.)
Citation 1982 c. 11
Territorial extent  Canada [lower-alpha 1]
Dates
Royal assent 29 March 1982
Commencement 17 April 1982
Other legislation
Relates to British North America Act 1867
Status: Current legislation
Text of statute as originally enacted
Revised text of statute as amended

The Canada Act 1982 (1982 c. 11; French: Loi de 1982 sur le Canada) is an act of the Parliament of the United Kingdom and one of the enactments which make up the Constitution of Canada. It was enacted at the request of the Senate and House of Commons of Canada to patriate Canada's constitution, ending the power of the British Parliament to amend the constitution. The act also formally ended the "request and consent" provisions of the Statute of Westminster 1931 in relation to Canada, whereby the British parliament had a general power to pass laws extending to Canada at its own request.

Contents

Annexed as Schedule B to the act is the text of the Constitution Act, 1982 , in both of Canada's official languages (i.e. English and French). Because of the requirements of official bilingualism, the body of the Canada Act itself is also set out in French in Schedule A to the act, which is declared by s. 3 to have "the same authority in Canada as the English version thereof". [1]

History

Canada's modern political history as a union of previously separate provinces began with the British North America Act, 1867 (officially called the Constitution Act, 1867, in Canada). [2] This act combined the Province of Canada (now Ontario and Quebec) with Nova Scotia and New Brunswick into a Dominion within the British Empire. [2] Canada adopted a Westminster-style government with a Parliament of Canada. A governor general fulfilled the constitutional duties of the British sovereign on Canadian soil. Similar arrangements applied within each province.

Despite this autonomy, the United Kingdom still had the power to legislate for Canada, and Canada was thus still legally a self-governing British dominion. The Statute of Westminster 1931 restricted the British Parliament's power to legislate for Canada, unless the Dominion requested and consented to Imperial legislation. [3] This had the effect of increasing Canada's sovereignty. The British North America (No. 2) Act, 1949, was also passed by the British Parliament, giving the Parliament of Canada significant constitutional amending powers. [4]

However, with Canada's agreement at the time, under s. 7(1) of the Statute of Westminster, the British Parliament also retained the power to amend the key Canadian constitutional statutes, namely the British North America Acts. [5] [6] [7] In effect, an act of the British Parliament was required to make certain changes to the Canadian constitution. [8] Delay in the patriation of the Canadian constitution was due in large part to the lack of agreement concerning a method for amending the constitution that would be acceptable to all of the provinces, particularly Quebec. [9]

Enactment

The Canada Act 1982 was passed by the Parliament of the United Kingdom in response to the request from the Canadian Senate and House of Commons to end Britain's authority and transfer the authority for amending the Constitution of Canada to the federal and provincial governments. [5] [10] After unpromising negotiations with the provincial governments, Prime Minister Pierre Trudeau announced that the federal government would unilaterally patriate the Constitution from Britain. Manitoba, Newfoundland and Quebec responded by posing references to the provincial courts of appeal, challenging the federal government's power to seek unilateral amendments from Britain. In September 1981, the Supreme Court of Canada ruled in the Patriation Reference that provincial consent was not legally necessary, but to do so without substantial consent would be contrary to a longstanding constitutional convention. [11] Trudeau succeeded in convincing nine provinces out of ten to consent to patriation by agreeing to the addition of a Notwithstanding Clause to limit the application of the Canadian Charter of Rights and Freedoms [12] as a result of discussions during a First Ministers' conference and other minor changes in November 1981. [13]

There was little opposition from the British government to passing the act, [14] with 44 members of Parliament (MPs) voting against the act, less than 10 percent of the House of Commons. Citing concerns over Canada's past mistreatment of Quebec and Indigenous peoples (as recalled with frustration by Jean Chrétien in his memoirs Straight from the Heart), [15] 24 Conservative and 16 Labour MPs voted against the act. However, new research into documents of the Margaret Thatcher government indicate that Britain had serious concerns about the inclusion of the Canadian Charter of Rights and Freedoms within the Canada Act. Part of this concern stemmed from letters of protest the British received about it from provincial actors, but also because the Charter undermined the principle of parliamentary supremacy, which until that time had always been a core feature of every government practising the Westminster system. [16]

Through section 2 of the Canada Act 1982, the United Kingdom ended its involvement with further amendments to the Canadian constitution. [17] Amendments to the Constitution now must be made under the various amending formulas set out in Part V of the Constitution Act, 1982.

Proclamation

The Canada Act 1982 received royal assent on March 29 in London, but it did not take full effect immediately. Canada's Constitution Act, 1982, was proclaimed in force by Elizabeth II as Queen of Canada on April 17 on Parliament Hill in Ottawa. The proclamation marked the end of a long process and efforts by many successive governments to patriate the Constitution. The proclamation brought into force the new amending formula, ending any role for the British Parliament in Canadian law, and implemented the Canadian Charter of Rights and Freedoms. [5] [18]

The monarch's constitutional powers and roles over Canada were not affected by the act. [19] Canada has complete sovereignty as an independent country, however, and the King's role as monarch of Canada is separate from his role as the British monarch or the monarch of any of the other Commonwealth realms. [20] Canada, like other Commonwealth realms, retains the King as head of state.

See also

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References

  1. ↑ Canada Act 1982, s. 3.
  2. 1 2 "Canada in the Making – Constitutional History". .canadiana.org. Archived from the original on February 9, 2010. Retrieved October 18, 2010.
  3. ↑ "The Statute of Westminster, 1931, s.4". Efc.ca. Archived from the original on September 27, 2022. Retrieved October 18, 2010.
  4. ↑ "British North America (No. 2) Act, 1949". Solon.org. Retrieved October 18, 2010.
  5. 1 2 3 "Proclamation of the Constitution Act, 1982". Canada.ca. Government of Canada. May 5, 2014. Retrieved February 10, 2017.
  6. ↑ "A statute worth 75 cheers". Globe and Mail. Toronto. March 17, 2009. Retrieved February 10, 2017.
  7. ↑ Couture, Christa (January 1, 2017). "Canada is celebrating 150 years of… what, exactly?". CBC. Retrieved February 10, 2017. ... the Constitution Act itself cleaned up a bit of unfinished business from the Statute of Westminster in 1931, in which Britain granted each of the Dominions full legal autonomy if they chose to accept it. All but one Dominion — that would be us, Canada — chose to accept every resolution. Our leaders couldn't decide on how to amend the Constitution, so that power stayed with Britain until 1982.
  8. ↑ Gérin-Lajoie, Paul (1951). "Constitutional Amendment in Canada". The Canadian Journal of Economics and Political Science. 17 (3). Blackwell Publishing on behalf of Canadian Economics Association: 389–394. doi:10.2307/137699. JSTOR   137699.
  9. ↑ "Intellectuals for the Sovereignty of Quebec". Rocler.qc.ca. October 30, 1995. Archived from the original on October 21, 2010. Retrieved October 18, 2010.
  10. ↑ "The Constitution—The Monarchist League of Canada". Monarchist.ca. Archived from the original on January 3, 2011. Retrieved October 18, 2010.
  11. ↑ Re: Resolution to amend the Constitution, [1981] 1 SCR 753.
  12. ↑ Library of Parliament Background Paper (Marc-André Roy and Laurence Brosseau; Publication No. 2018-17-E, 2015-05-07): "The Notwithstanding Clause of the Charter".
  13. ↑ Siddiqui, Haroon (April 15, 2012). "Canada's cherished Charter could not have happened without "kitchen accord"". Toronto Star . Retrieved April 15, 2012.
  14. ↑ "Canada Act Canada-United Kingdom [1982]". britannica.com. Retrieved August 17, 2019.
  15. ↑ Jean Chrétien, Straight from the Heart (Toronto: Key Porter Books, 1985), ISBN   1-55013-576-7.
  16. ↑ Frédéric Bastien. 2010. ―Britain, the Charter of Rights and the spirit of the 1982 Canadian Constitution.‖ Commonwealth & Comparative Politics 48 (3): 320–347.
  17. ↑ Feasby, Colin (2006). "Constitutional Questions About Canada's New Political Finance Regime" (PDF). Osgoode Hall Law School York University. p. 18 Volume 48, Number 1. Archived from the original (PDF) on July 6, 2011. Retrieved October 18, 2010.
  18. ↑ Lauterpacht, E (1988). International Law Reports. Cambridge University Press. p. 457. ISBN   0-521-46423-4 . Retrieved October 18, 2010.
  19. ↑ Cyr, Hugo (2009). Canadian Federalism and Treaty Powers: Organic Constitutionalism at Work. Bruxelles ; New York : P.I.E. Peter Lang. ISBN   978-90-5201-453-1 . Retrieved October 18, 2010.
  20. ↑ Trepanier, Peter. "Some Visual Aspects of the Monarchical Tradition" (PDF). www.revparl.ca. Archived from the original (PDF) on October 10, 2017.[ verification needed ]

Note

  1. ↑ The act had the effect in the United Kingdom of ending Parliament's authority over Canada (see s.2); however the more substantive Schedule A and B (the Constitution Act, 1982 (Loi constitutionnelle de 1982) ) had effect only in Canada.
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