Always4Iggy Always4Iggy:
While this is a good point, Clog, you may also mention that Canada at present has only a PROPOSED constitution, and until every province accepts it, it remains as such.
Quebec has not.
ReliableIntelligence ReliableIntelligence:
Quebec joined confederation on July 1, 1867, becoming subject to the Constitution Act 1867 at that time.
They did not agree to the Consitution Act 1982, and there are still some that regret that, but it doesn't make our constitution any less valid or binding on any province.
You cannot 'add back' the 1982 act to the 1867 act, since you imply that any province which has accepted the 1867 act would automatically accept the 1982 act. By that logic, then any future act is also automatically accepted. For instance, in a 2007 act, Stephen Harper could declare that French speaking people should not have voting privileges, so that they may not vote for separation.
Would that be binding on Quebec?
I think not.
I think the Supreme Court has made it clear that while the 1982 act is all encompassing and includes earlier acts and even unwritten agreements and understandings, it is not Constitution in a province till it is accepted by the province. So we have a draft act, and a 'try and buy' country, all right.
Always4Iggy Always4Iggy:
Well, explain a couple of things to me.
Always4Iggy Always4Iggy:
a.If we had a consitution act of 1867, why do we need another one in 1982?
ReliableIntelligence ReliableIntelligence:
a. The Constitution Act 1982 requested the repatriation of the Canadian Constitution, established a formula for amending the original constitutional document (which is a british act) that could be done entirely within Canada, and established the Canadian Charter of Rights and Freedoms.
It is part of our constitution. It did not replace the 1867 Act.
The composition of the Constitution of Canada is defined in section 52(2) of the Constitution Act, 1982 as consisting of the Canada Act 1982 (including the Constitution Act, 1982), all acts and orders referred to in the schedule (including the Constitution Act, 1867), and any amendments to these documents. Effectively, this includes all British legislation that predates or modifies the British North America Act. The Supreme Court of Canada held that the list is not exhaustive and includes unwritten doctrines as well. Nevertheless, almost all constitutional jurisprudence focuses on the Constitution Act, 1867, the Constitution Act, 1982, including the Charter of Rights and Freedoms, and the so-called unwritten constitution.
Always4Iggy Always4Iggy:
b. When you say 'it doesn't make our constitution any less valid' are you referring to the 1867 act or the 1982 act?
ReliableIntelligence ReliableIntelligence:
b. Both. Our constitution has three parts - the Constitution Act 1867, The Constitution Act 1982, and the 'unwritten constitution' (the ever evolving body of law that surrounds the constitution). All of these are binding on Provinces that were part of the original confederation, or have joined since.
Always4Iggy Always4Iggy:
c. If you are referring to the latter, then how do you explain Trudeau's 'Night of long knives', when he secretly got all the other provinces to accept the act of 1982, so that Quebec would be presented with a union of all the provinces against it? Why did they need this charade?
ReliableIntelligence ReliableIntelligence:
c. The supreme court ruled in the patriation reference that the federal parliament had the right to request patriation unilaterally without even seeking the consent of any of the provinces. By the letter of the law, any change to the constitution act 1867 (then known as the British North America Act, 1867) needed only to be adopted by the UK parliament.
However, the supreme court said it would be 'preferable' if a 'substantial' number of first ministers agreed to the request.
The constitutional rounds started up, but agreement was only reached when Chretien met with 9 of the 10 first ministers in the kitchen of the lord elgin hotel. The Quebec delegation was staying across the river in Hull, and Premier Levesque wasn't called about the meeting. Agreement was reached in the kitchen between the rest of the premiers and Chretien, who offered the inclusion of the 'notwithstanding clause' in return for the premiers dropping their insistance on an 'opt out' for the provinces.
Trudeau was persuaded to accept the agreement, and Levesque came the next day only to find he'd lost his allies.
Levesque (perhaps justifiably) felt betrayed, and dubbed the kitchen conference 'the night of long knives'. However, with 9 of 10 provinces on side, Trudeau requested the adoption of the Canada Act 1982 by British Parliament, which contains and ratifies the Constitution Act, 1982.
Sorry, but I do not agree. It cannot be a constitution unless it has 10 out of 10 provinces. As I said above, 9 english provinces can gang up against one french speaking province, and that cannot be morally right.
Trudeau loved Canada, and was willing to bulldoze almost half the Quebecers into the Constitution. In a similar way, Dion bulldozed through the Clarity Act, which made a seccessionist referendum close to impossible.
One day, when Canada is a legally proper country, and our Constitution is legally binding, these two persons will be hailed as the true creators of Canada.
But that day is not yet here. Today, I think Canada is a 'Try Before You Buy' country, and its constitution is a Draft Constitution.
It is meaningless in terms of constitutional law world wide that a supreme court can decide that it can be ratified by a 'substantial number of first ministers' or anyone else. As each day passes, and as constitutional law becomes more and more sophisticated world wide, such a ruling of the supreme court becomes more decadent and less meaningful.
I may point out that even Scotland is reconsidering separating from Britain! And the constitutional documents written up to bind Scotland are far more metallic than the hoops that bind Quebec to us.