Canada Act 1982

Canada Act 1982
Long title An Act to give effect to a request by the Senate and House of Commons of Canada.
Citation 1982 c. 11
Territorial extent Canada
Dates
Royal assent March 29, 1982
Status: Current legislation
Text of statute as originally enacted
Revised text of statute as amended

The Canada Act 1982 (1982 c. 11) is an Act of the Parliament of the United Kingdom that was passed (as stated in the preamble) at the request of the Parliament of Canada, to "patriate" Canada's constitution, ending the power of the British Parliament to amend the Constitution of Canada. 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.

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 (currently officially called in Canada the Constitution Act, 1867).[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. The Statute of Westminster 1931 removed this power of the British Parliament for Canada,[3] as well as for the other British Dominions (Australia [adopted 1942], the Irish Free State, New Zealand [adopted 1947], the Union of South Africa, and the Dominion of Newfoundland [never ratified, joined Canada in 1949]), unless (sec. 4) the Dominion requested and consented to Imperial legislation. Also, the British North America (No. 2) Act, 1949 was passed by the British Parliament, giving the Parliament of Canada significant constitutional amending powers.[4]

However, with Canada's agreement at the time, under the Statute of Westminster (sec. 7(1)) 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 of the Act

The Canada Act 1982 was passed by the Parliament of the United Kingdom in response to the request from the Parliament of Canada to take over authority for amending its own constitution.[10][11] After unpromising negotiations with the provincial governments, Pierre Trudeau proclaimed that the federal Parliament would unilaterally patriate the constitution. After numerous references by the provinces, 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.[12] Trudeau succeeded in convincing nine provinces out of ten by agreeing to the addition of a Notwithstanding Clause to limit the application of the Canadian Charter of Rights and Freedoms[13] as a result of discussions during a First Ministers' conference and other minor changes in November 1981.[14]

In the UK, 44 Members of Parliament voted against the Act, including 24 Conservative and 16 Labour MP's, citing concerns over Canada's past mistreatment of Quebec and Aboriginal peoples (as recalled with frustration by Jean Chrétien in his memoirs Straight from the Heart); overall there was little opposition from the British government to passing the Act. However, new research into documents of the 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.[15]

Through section 2 of the Canada Act 1982, the United Kingdom ended its involvement with further amendments to the Canadian constitution.[16] The procedure for amending the Constitution Act, 1982 must comply with its Part V, instead of the usual parliamentary procedure requiring the monarch's Royal Assent for enacting legislation.

Proclamation by the Queen of Canada

While the Canada Act 1982 received royal assent on March 29, 1982 in London, it was not until the Queen visited Canada the following month [17] that the Constitution Act, 1982, its Canadian equivalent, was proclaimed by letters patent as a statutory instrument by the Queen during her presence in Canada.[18]

Canada's Constitution Act, 1982 was signed into law by Elizabeth II as Queen of Canada on April 17, 1982 on Parliament Hill in Ottawa.[19][18] Queen Elizabeth's constitutional powers over Canada were not affected by the Act, and she remains Queen and Head of State of Canada.[20] Canada has complete sovereignty as an independent country, however, and the Queen's role as monarch of Canada is separate from her role as the British monarch or the monarch of any of the other Commonwealth realms.[21]

See also

References

  1. ↑ Canada Act 1982, s. 3.
  2. 1 2 "Canada in the Making – Constitutional History". .canadiana.org. Retrieved 2010-10-18.
  3. ↑ "The Statute of Westminster, 1931". Efc.ca. Retrieved 2010-10-18.
  4. ↑ "British North America (No. 2) Act, 1949". Solon.org. Retrieved 2010-10-18.
  5. ↑ "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. 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. Blackwell Publishing on behalf of Canadian Economics Association. 17: 6. JSTOR 137699.
  9. ↑ "Intellectuals for the Sovereignty of Quebec". Rocler.qc.ca. 1995-10-30. Retrieved 2010-10-18.
  10. ↑ "Proclamation of the Constitution Act, 1982". Library and Archives, Government of Canada. Government of Canada. 2015. Retrieved 13 February 2017.
  11. ↑ "The Constitution—The Monarchist League of Canada". Monarchist.ca. Retrieved 2010-10-18.
  12. ↑ "1981 CanLII 25 (S.C.C.)". CanLII. Retrieved 2010-10-18.
  13. ↑ "The Notwithstanding Clause of the Charter (BP-194E)". .parl.gc.ca. Retrieved 2010-10-18.
  14. ↑ Siddiqui, Haroon (2012-04-15). "Canada's cherished Charter could not have happened without "kitchen accord"". Toronto Star. Retrieved 15 April 2012.
  15. ↑ Frédéric Bastien. 2010. ―Britain, the Charter of Rights and the spirit of the 1982 Canadian Constitution.‖ Commonwealth & Comparative Politics 48 (3): 320–347.
  16. ↑ 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. Retrieved 2010-10-18.
  17. ↑ "Proclamation of the Constitution Act, 1982". Library and Archives, Government of Canada. Government of Canada. 2015. Retrieved 13 February 2017. The signing of the proclamation on April 17, 1982, marked the end of efforts by many successive governments. The new Constitution was accompanied by The Canadian Charter of Rights and Freedoms, and an amending formula that would no longer require an appeal to the British Parliament.
  18. 1 2 Lauterpacht, E (1988). International Law Reports. Cambridge University Press. p. 457. ISBN 0-521-46423-4. Retrieved 2010-10-18.
  19. ↑ "Proclamation of the Constitution Act, 1982". Library and Archives, Government of Canada. Government of Canada. 2015. Retrieved 13 February 2017. The signing of the proclamation on April 17, 1982, marked the end of efforts by many successive governments. The new Constitution was accompanied by The Canadian Charter of Rights and Freedoms, and an amending formula that would no longer require an appeal to the British Parliament.
  20. ↑ 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 2010-10-18.
  21. ↑ "Some Visual Aspects of the Monarchical Tradition" (PDF). Canadian Parliamentary Review 31. 2004. p. 17. Archived from the original (PDF) on 2010-03-08. Retrieved 2010-10-18.
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