The Constitution Act 1982 Essay Checker

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Constitutional law is always a fascinating enterprise. Over the years, observers have noted that they work best when the courts interpret them in a manner at odds with the original intent. It does seem that the The US Constitution originally emphasized states' rights, but the courts have shaped an over-riding federal jurisdiction; similarly, Canada was intended to be a strong federal state, but crucial early cases acknowledged greater provincial powers. In Australia, it is said, the courts did what the Constitution intended and the result was constitutional crisis.

The late Chief Justice of Canada, Bora Laskin, once observed -- perhaps with this phenomenon in mind -- that all of the major Canadian constitutional decisions could just have easily gone the other way. Most of these decisions were made by the Judicial Committee of the Privy Council, a committee of law lords sitting in London, England. This was the ultimate court of appeal for Canada until its role vis à vis this country was abolished in 1949.

As it stands, our constitution is something of a hodgepodge of British legislation reflecting the growth of Canada from the original 4 colonies to 10 provinces and two territories, as well as changing social policy in matters such as unemployment insurance and emerging technologies such as radio and aviation. Many of these constitutent elements of our Constitution are set out in the list of links below, but that list is not complete. The authoritative list of what enactments now form part of the Constitution is set out in one of the schedules to the 1982 Act. Where specific matters are not dealt with, we can fall back on generous phrasing such as "peace, order and good government" or make reference to the Constitution of Great Britain which is, unhelpfully, unwritten.

The Constitution Act, 1982 was the last constitutional enactment for Canada to be made by the Parliament of the United Kingdom. It thus has the political importance of patriating the Canadian constitution; all future amendment must be done within Canada and according to amending formulas set out in Part V below. Domesticating political tensions in this country, however, has not tamed them and we continue wrangle over constitutional arrangements which have, if anything, proved eminently workable.

On the legal front, the 1982 Act broke new ground. For the first time, the Constitution includes a Charter of Rights and Freedoms. This has fundamentally changed the legal relationship between the people and the state as well as the relationship between the courts and legislative institutions. Aboriginal and treaty rights, previously subject to a variety of legislative infringements, were given constitutional recognition which has been held to put government to the test of justifying any future infringement. These and other issues are still to be worked out and, as legal issues, are being brought before the courts to the point that our judicial system is becoming clogged with them.

In retrospect, the Constitution Act, 1982 did not bell the cat of constitutional reform at all: rather it seems to have put the cat among the pigeons.

Canada Act, also called Constitution Act of 1982, Canada’s constitution approved by the British Parliament on March 25, 1982, and proclaimed by Queen Elizabeth II on April 17, 1982, making Canada wholly independent. The document contains the original statute that established the Canadian Confederation in 1867 (the British North America Act), the amendments made to it by the British Parliament over the years, and new material resulting from negotiations between the federal and provincial governments between 1980 and 1982.

The new constitution represented a compromise between Canadian Prime Minister Pierre Elliott Trudeau’s vision of “one Canada with two official languages” and the particular concerns of the provinces. A novel part of the document was the Charter of Rights and Freedoms. This set down 34 rights to be observed across Canada, ranging from freedom of religion to linguistic and educational rights based on the test of numbers. Many of the rights could be overridden by a “notwithstanding clause,” which allowed both the federal Parliament and the provincial legislatures to set aside guarantees in the Charter. Designed to preserve parliamentary supremacy, a basic political principle in Canada, “notwithstanding clauses” would have to be renewed every five years to remain in force. Thus the Charter of Rights was not fully entrenched in the Canadian constitution as the Bill of Rights was in that of the United States.

The Canada Act also contained a formula for its amendment in Canada, a subject that had defeated attempts to gain agreement on a new constitution as far back as 1927. Under the formula, resolutions of the Canadian Parliament, accompanied by the concurrence of two-thirds of the provinces (7) representing at least 50 percent of the country’s population, would be sufficient to approve a constitutional amendment. Other sections of the act recognized the aboriginal and treaty rights of native peoples, strengthened the provinces’ jurisdiction over their natural resources, and committed the central government to provide public services of reasonable quality across Canada by ensuring revenue (equalization) payments to the provinces.

The constitutional changes having been extensively discussed in Canada since their presentation in 1980, and their mode of procedure having secured judicial endorsement in 1981, there was little opposition when they came before the British Parliament early in 1982. All major British parties supported them, although some members of Parliament felt that native rights were inadequately protected. Queen Elizabeth II gave royal assent to the Canada Act on March 29, 115 years to the day after Queen Victoria, her great-great-grandmother, had approved the federation act of 1867. Thus the last legal tie with Great Britain was severed, and Canada became a fully sovereign state.

Although the people of Quebec were deeply divided over the merits of the new constitution, the Quebec government—strongly separatist—went ahead with its opposition to the changes. The Quebec government took its case to the courts, but the Quebec Court of Appeal, on April 7, 1982, held that Quebec did not possess a veto over constitutional change, even if it affected provincial jurisdiction. Again, on September 8, the Superior Court of Quebec held that sections of Quebec’s controversial language law, Bill 101, were unconstitutional because they conflicted with the new Charter of Rights. Bill 101 required English-speaking Canadian parents educated outside Quebec to send their children to French schools if they moved to Quebec. The Charter of Rights, on the other hand, guarantees minority language education in all provinces for children of Canadian citizens where numbers warrant the establishment of schools. Quebec’s claim to a constitutional veto was decisively rejected by the Supreme Court of Canada, 9–0, on Dec. 6, 1982.


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