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PostPosted: Thu Jan 25, 2007 10:30 pm
 


Always4Iggy Always4Iggy:
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.


That's not what I implied at all.

I wasn't implying anything, as a matter of fact. I was simply stating that Quebec became subject to the constitution when the province was created and joined confederation in 1867.

That's why even the parti quebecois and the bloc would agree that in order to walk away from confederation requires at least a referendum.

$1:
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.


Except that the general amending formula in the 1982 Act would require the consent of 7 of the ten provincial legislatures comprising 50% of the total population. Such a major amendment would also likely be seen as requiring a referendum in each province (as was the case with the Charlottetown accord).

In fact, it is entirely possible that such a major amendment would be seen as requiring the unanimous consent of the provincial legislatures.

I think I could say with absolute certainty that such an amendment would never pass.

Always4Iggy Always4Iggy:
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.


I think you're wrong. The Supreme Court has said no such thing.

Always4Iggy Always4Iggy:
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.


Yes, that is what wikipedia has to say about it. Verbatim.


Always4Iggy Always4Iggy:
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.


You may think it's a shame that Quebec never agreed to the 1982 Act, but that doesn't change the fact that it is binding. Our constitution is in no way a provisional or draft document.

You may consider it unfinished, or a work in progress, but the fact is that until it is changed using the amending formula from the 1982 Act in such a way that all Canadian provinces can accept it, it is the highest law in the land.

Always4Iggy Always4Iggy:
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.


See - this is the point you're driving at that bugs me.

You're suggesting that Canada is not a sovereign nation, that its government does not have the right to govern, and that our constitution is something that can be walked away from willy nilly by anyone who chooses to do so.

Ask Jacques Parizeau how easy it is to walk away from the constitution some time.

The fact is that Canada is a sovereign nation. It's constitution is not only binding, but we have one of the richest constitutional traditions in the world.

Someday it may be improved upon in a way that all provinces can agree upon it. That will be a great day. But it isn't necessary to make this country sovereign.

Always4Iggy Always4Iggy:
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.


The Supreme court ruled based on the BNA Act of 1867 as it was written. That's what courts do.

Even by suggesting that it would be preferable if provinces agreed, they were actually overstepping their authority to an extent.

The BNA Act was not an effective constitution. Having a Constitution that could only be amended at the behest of the British Parliament wasn't practical, and was outdated.

That's why it had to be made a Canadian Document, with a Canadian amendment process, which is what the 1982 Act did.

Always4Iggy Always4Iggy:
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.


How on earth is that relevant to Canada?


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PostPosted: Fri Jan 26, 2007 6:24 pm
 


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.
Always4Iggy Always4Iggy:
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.

ReliableIntelligence ReliableIntelligence:
That's not what I implied at all.

I wasn't implying anything, as a matter of fact. I was simply stating that Quebec became subject to the constitution when the province was created and joined confederation in 1867.

That's why even the parti quebecois and the bloc would agree that in order to walk away from confederation requires at least a referendum.
I do agree with you and Parti Quebecois that separation requires a referendum, but that is a tautology. How else would we decide that Quebecois wanted to separate? Or for that matter, Albertans?

My point is slightly different. If there was a proper constitution, then there is no question of a referendum. But there is no proper constitution, only a draft constitution. The 1982 act will be binding on Quebec if it is accepted by Quebecois. Otherwise it will not. Till then only the 1867 act applies, and a referendum and a separation is not ruled out.

So your words
$1:
but it doesn't make our constitution any less valid or binding on any province.
are a bit undefined, wouldn't you agree?

A4I: Sure, a consitution is binding, but which one.

RI: The 1867 act, doubtlessly.

A4I: But it allows for a referendum and separation, so what does it really bind?

RI: The 1982 act?

A4I: Well it does better, but the Quebecers have not accepted it.

RI: But the supreme court said it did not need all the first ministers...

A4I: They sure did, but under what authority? The 1867 act? A court can only rule if something is constitutional or not, when we have a constitution and we don't have.

The circular logic is quite similar to religious scriptures and equally hollow.


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PostPosted: Fri Jan 26, 2007 6:49 pm
 


Isn't it funny when Liberals argue against Liberals? :D


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PostPosted: Fri Jan 26, 2007 6:54 pm
 


Arctic_Menace Arctic_Menace:
Isn't it funny when Liberals argue against Liberals? :D
Hey, Arctic, we are not arguing against Liberals, we are discussing a constitutional question. It make no difference whether we are Liberals or Conservatives, this is an across the party lines question.


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PostPosted: Fri Jan 26, 2007 8:37 pm
 


Always4Iggy Always4Iggy:
I do agree with you and Parti Quebecois that separation requires a referendum, but that is a tautology. How else would we decide that Quebecois wanted to separate? Or for that matter, Albertans?

My point is slightly different. If there was a proper constitution, then there is no question of a referendum. But there is no proper constitution, only a draft constitution. The 1982 act will be binding on Quebec if it is accepted by Quebecois. Otherwise it will not. Till then only the 1867 act applies, and a referendum and a separation is not ruled out.

So your words
$1:
but it doesn't make our constitution any less valid or binding on any province.
are a bit undefined, wouldn't you agree?


No, I wouldn't agree.

In fact neither the 1982 or 1867 Act explicitly state that a province can seperate via a referendum - that is all part of that unwritten body of jurisprudence that forms the third part of the Constitution.

My point was only that if there was nothing to seperate from, there would be no need for a referendum. That the need to 'seperate' - and even negotiate that seperation with the government of Canada - is acknowledged even by the most ardent supporters of Quebec sovereignty implies that there must be something to seperate from.

$1:
A4I: Sure, a consitution is binding, but which one.

RI: The 1867 act, doubtlessly.


First off, I don't really appreciate the fact that you've chosen to misrepresent my arguments and put words in my mouth. I'd ask that you please not do it in the future.

Secondly, I've said repeatedly that the constitution includes both the 1867 Act and the 1982 Act. So it's not a matter of 'which one'. There is only one constitution of which both Acts are part.

$1:
A4I: But it allows for a referendum and separation, so what does it really bind?


The 1867 Act doesn't allow for a referendum any more than the 1982 Act does. As I said above, it's tied up in the unwritten body of jurisprudence that forms the third part of the constitution - and derives from the fact that if a majority in a province voted to leave confederation there would be a de facto constitutional crisis.

The supreme court reference and the clarity act seek to further define the terms under which a province and the federal government could negotiate secession.

$1:
RI: The 1982 act?

A4I: Well it does better, but the Quebecers have not accepted it.


While it's a shame that Quebec didn't accept it, they didn't have to accept it to be bound by it.

Also, recall that the 1982 Act was not technically rejected by the people of Quebec - it was rejected by the government of René Lévesque that had tried to acheive a mandate for secession only 2 years earlier and failed by a wide margin.

$1:
RI: But the supreme court said it did not need all the first ministers...

A4I: They sure did, but under what authority? The 1867 act? A court can only rule if something is constitutional or not, when we have a constitution and we don't have.


Your reasoning is circular. The supreme court couldn't rule on what would make the constitution valid because we didn't have a valid constitution?

The fact is it is very much within the Supreme Court's jurisdiction to interpret the constitution. In fact, the constantly expanding body of constitutional jurisprudence is largely the work of the Supreme Court.

There are all manner of examples of the court 'reading in' sections of the constitution, deciding on constitutional disagreements, etc.

The reference power exists for this reason, and that's exactly why it was used in this instance.

Quebec is well represented on the court, and agreed to be bound by its decisions when it joined confederation.

$1:
The circular logic is quite similar to religious scriptures and equally hollow.


Your opinions on religion notwithstanding, I think my argument has been quite straightforward.

Arctic Menace Arctic Menace:
Isn't it funny when Liberals argue against Liberals? Very Happy


I agree with Always4Iggy that this isn't really a partisan question - though it's obviously a charged subject with major implications for federalism.

That isn't to say that there aren't issues of disagreement within the party. In fact one of the things I like about the Liberal party is that it is strong enough and open enough to entertain disagreement and encourage debate within itself.

Unlike some other parties that tend to shatter into pieces when divisive issues come up.


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PostPosted: Sat Jan 27, 2007 9:30 pm
 


Reliable, the discussion is very interesting indeed! But it is getting detailed, and we have to deal with it in 'bite sized morsels'.
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.
Always4Iggy Always4Iggy:
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.
ReliableIntelligence ReliableIntelligence:
That's not what I implied at all.

I wasn't implying anything, as a matter of fact. I was simply stating that Quebec became subject to the constitution when the province was created and joined confederation in 1867.
a
That's why even the parti quebecois and the bloc would agree that in order to walk away from confederation requires at least a referendum.
Always4Iggy Always4Iggy:
I do agree with you and Parti Quebecois that separation requires a referendum, but that is a tautology. How else would we decide that Quebecois wanted to separate? Or for that matter, Albertans?

My point is slightly different. If there was a proper constitution, then there is no question of a referendum. But there is no proper constitution, only a draft constitution. The 1982 act will be binding on Quebec if it is accepted by Quebecois. Otherwise it will not. Till then only the 1867 act applies, and a referendum and a separation is not ruled out.

So your words
$1:
but it doesn't make our constitution any less valid or binding on any province.
are a bit undefined, wouldn't you agree?
ReliableIntelligence ReliableIntelligence:
No, I wouldn't agree.

In fact neither the 1982 or 1867 Act explicitly state that a province can seperate via a referendum - that is all part of that unwritten body of jurisprudence that forms the third part of the Constitution.

My point was only that if there was nothing to seperate from, there would be no need for a referendum. That the need to 'seperate' - and even negotiate that seperation with the government of Canada - is acknowledged even by the most ardent supporters of Quebec sovereignty implies that there must be something to seperate from.

RI, you are perfectly right that there is indeed something to separate from, namely the entity created by the act of 1867. We are both in agreement about that, and I have reiterated it when I said above as follows:
$1:
Till then only the 1867 act applies, and a referendum and a separation is not ruled out.


In my view, you words
$1:
but it doesn't make our constitution any less valid or binding on any province.
are valid, but they are more meaningful only as follows:

a. The constitution is definitely binding on Quebec, if you refer to the 1867 act.
b. But the constitution is not binding on Quebec if you refer to the 1982 act.
c. Again, the 1867 act is only binding as long as Quebec does not pass a secession referendum.

My concept of a proper constitution is one that would finally and irrevocably bind the provinces together. Any Albertans or Quebecois who demand separation could be tried for treason and secession.

For instance, the US of A has a constition that does not allow the possibility of a state demanding secession. Nor can portions of Britain, such as Wales, or Yorkshire or Cornwall. (Scotland, of course, is a different case.)


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PostPosted: Sun Jan 28, 2007 8:34 pm
 


Always4Iggy Always4Iggy:
Reliable, the discussion is very interesting indeed! But it is getting detaile

In my view, you words
$1:
but it doesn't make our constitution any less valid or binding on any province.
are valid, but they are more meaningful only as follows:

a. The constitution is definitely binding on Quebec, if you refer to the 1867 act.
b. But the constitution is not binding on Quebec if you refer to the 1982 act.
c. Again, the 1867 act is only binding as long as Quebec does not pass a secession referendum.


I can only say again - we have one constitution. It is either binding or not. And as a matter of fact, it is.

The BNA Act of 1867 only exists as amended by the 1982 Act. They cannot be thought of as two seperate Acts.

$1:
My concept of a proper constitution is one that would finally and irrevocably bind the provinces together. Any Albertans or Quebecois who demand separation could be tried for treason and secession.


If that's you're perfect constitution that's fine. It's not the one we have though.

Rarely are constitutional documents 'perfect', especially in a country as large and regionally diverse as ours. I think ours is pretty good, though.

What's more, I think I would personally be opposed to any constitution that permenantly bound us. While I hope this country will endure for eternity, I believe it should be because Canadians realize that we have something good going here that benefits all of us. Not because they fear being accused of treason for dissent.

$1:
For instance, the US of A has a constition that does not allow the possibility of a state demanding secession.


You may recall that the particular question of whether States could unilaterally secede from the Union was decided with a rather messy civil war as well.

$1:
Nor can portions of Britain, such as Wales, or Yorkshire or Cornwall. (Scotland, of course, is a different case.)


I don't know whether (or why) Yorkshire or Cornwall would ever want to seperate, but as for Wales - maybe you should take a look at this.


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PostPosted: Mon Jan 29, 2007 10:29 am
 


Clogeroo Clogeroo:
No, where in the constitution it says provinces cannot leave though? But there is little to provide for a secessionist movement either. I think it would just be a matter of removing a province from the constitution as long as the government approves it then I see no reason why it couldn't happen. It is not much different then adding a province but that does have a note in the constitution but with little details how that will be done. You are also correct the Clarity Act puts the power into the supreme court over any referendum question in Quebec.


Good, I think we're agreed that there is no inherent right to unilateral separation. Separation must happen at the behest fo the rest of the country through a Constitutional amendment.

It's just my opinion, but I would never vote in favour of any province separating.


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PostPosted: Mon Jan 29, 2007 11:45 am
 


$1:

Good, I think we're agreed that there is no inherent right to unilateral separation. Separation must happen at the behest fo the rest of the country through a Constitutional amendment.

It's just my opinion, but I would never vote in favour of any province separating.

I wouldn't say it is a right but I think it can be done in a civilised manner without the break out of a war. If I had a vote today I would vote for independence from Canada but not from the crown. I don't expect everyone to share this view but I feel it might be the better way to go looking in the long term. I also gave the idea of New Zealand and Australia as an example of two nations living side by side. It is not like I hate eastern Canadians but perhaps it is time for us to find our own way.


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PostPosted: Mon Jan 29, 2007 12:16 pm
 


Clogeroo Clogeroo:
$1:

Good, I think we're agreed that there is no inherent right to unilateral separation. Separation must happen at the behest fo the rest of the country through a Constitutional amendment.

It's just my opinion, but I would never vote in favour of any province separating.

I wouldn't say it is a right but I think it can be done in a civilised manner without the break out of a war. If I had a vote today I would vote for independence from Canada but not from the crown. I don't expect everyone to share this view but I feel it might be the better way to go looking in the long term. I also gave the idea of New Zealand and Australia as an example of two nations living side by side. It is not like I hate eastern Canadians but perhaps it is time for us to find our own way.


Well, fortunately, your point of view is still the minority.


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PostPosted: Mon Jan 29, 2007 12:20 pm
 


$1:
Well, fortunately, your point of view is still the minority.

Time will tell.


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PostPosted: Sun Feb 04, 2007 7:53 pm
 


Seperatists from coast to coast should go live in another country for awhile and see just how wonderful Canada is and how lucky we are to be living here------- I mean people seem to be knocking at the door to get in --- wonder why? ------
And as far as people in Alberta wanting to separate--- 3/4 of them are from other provinces ---- I mean Alberta isnt just for racists anymore --- :)


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PostPosted: Sun Feb 04, 2007 7:53 pm
 


Separatists from coast to coast should go live in another country for awhile and see just how wonderful Canada is and how lucky we are to be living here------- I mean people seem to be knocking at the door to get in --- wonder why? ------
And as far as people in Alberta wanting to separate--- 3/4 of them are from other provinces ---- I mean Alberta isnt just for racists anymore --- :)


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PostPosted: Mon Feb 05, 2007 6:47 pm
 


I just saw Joy McPhail representing the NDP on Mike Duffy live, and she seemed to be saying that a seperatist government in Quebec would be preferable.

If I'm Jack Layton, I'm on the phone - or even in the Foyer of the House - trying to make sure everyone knows that's not where the NDP stands...


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