Patriating the ConstitutionTrue to his word, Trudeau announced plansto revise Canada's Constitution. The BritishNorth America (BNA) Act had been Canada'sConstitution since 1867. The act set out the pow¬ers of the federal and provincial governmentsand guaranteed the language and educationrights of Quebec's French-speaking majority.Since the BNA Act fell under British jurisdiction,no changes could be made without the BritishParliament's approval.

Trudeau wanted to patriate the Constitution(bring it home to Canada), where the Canadiangovernment would have the authority to makechanges) Trudeau wanted this authority becausehe hoped, above all, to include a Charter of Rights

and Freedoms, a clear statement of the basic rightsto which all Canadians were entitled. Before hecould make any changes, however, he had to havethe approval of the provinces.

As a first step, Trudeau needed to come upwith an amending formula. How many provinceswould have to be in agreement for a change infhe Constitution t'o be made1? 'Should Quebec, asthe French-speaking partner in Confederation,be given veto powerr These were difficult issuesto resolve. Quebec was not the only provincepushing for more power; the western provincesalso saw this as an opportunity to have more say-over affairs that affected them. Furthermore, mostof the provincial premiers were opposed to theCharter. In English-speaking Canada, premiers

c WoChapter 8 the Canadian Identity; One. two, or Many Nations? 199

Using evidence From this

photograph, what would you say wasthe mood of the occasion?

Figure 8-8 Queen Elizabeth II arrivesat Parliament to sign Canada's new

Constitution Act, April 17, 1982,

felt that the Charter would make the courts morepowerful than their legislatures. In Quebec,Levesque feared that the Charter could be used tooverride his language laws—or any other legisla¬tion that might be passed to protect Quebec's dis¬tinct society.

A series of meetings failed to resolve these is¬sues. In a last-ditch attempt to reach agreement,the prime minister and the ten premiers met inOttawa on November 4, 1981. Over late-nightcups of coffee in the kitchen of the NationalConference Centre, federal Justice MinisterJean Chretien and the justice ministers fromSaskatchewan and Ontario hammered out whatcame to be called the "Kitchen Compromise."Nine of the ten provincial premiers were awak¬ened in their rooms at the Chateau Laurier Hoteland asked to approve the deal.

The premiers agreed to accept the Charter ifan escape qh^nse were added. This was the

C. "notwithstanding clause," which allowed thefederal government or any of the provinces to opt

__-out of some of the clauses in the Charter. Thi^meant that a provincial Jaw that was contrary to ajspecific Charier guarantee could be passed, de-ispite anything the Charter contains (see also'Chapter 12). An agreement on the amendingTor-mula was also reached. Changes to theConstitution could be made only with the agree¬ment of "seven out of ten provinces representing50 per cent of Canada's population." This meant,in effect, that Quebec could be excluded as longas Ontario was included.

Only Rene Levesque, who was staying at an¬other hotel, was not included in the KitchenCompromise. The next day, he argued against thedeal. Nevertheless, Trudeau accepted the com¬promise. He maintained that the federal govern¬ment had so many members from Quebec that itcould speak for that province. Levesque and thepeople of Quebec felt betrayed. They believed :that the federal government and the English-speaking premiers had ganged up on Levesque inorder to deny Quebec recognition of its distinctstatus. The Quebec provincial government re¬fused to sign the proposed new Constitution.

Without Quebec's agreement, Trudeau wentahead. On April 17, 1982, the new Constitution

Act was signed into law by Queen Elizabeth IIand Prime Minister Trudeau outside theParliament Buildings in Ottawa. The CanadianConstitution had officially come home. The laststep towards making Canada a completely inde¬pendent nation had been taken. As the rest ofCanada celebrated, flags in Quebec flew at half-mast, and Premier Levesque led an angry demon¬stration through the streets of Quebec City.

The last step towards making Canada a com¬pletely independent nation had been taken. Butthe process had revealed cracks in national unitythat would continue to trouble Canadians in theyears that followed.

ACTIVITIES

1. Do you think the Official Languages Act was an ef¬fective way to address dissatisfaction in Quebec?Explain.

2. Make a timeline of events during the October crisis.Identify events that you think were most significant.Give reasons for your choices.

3. In Quebec elections, the Parti Qubbbcois won 23.5per cent of votes in 1970, over 30 per cent in 1973,

and 41 per cent of votes in the 1976 election. Whatdo you think accounted for these results in eachcase? Find evidence from the text.

4. Would you describe Levesque's plan for sovereignty-

association as separation from Canada? Why or whynot?

5. Explain:

a) amending formula

b) patriation

c) Charter of Rights and Freedoms

d) Constitution Act of 1982.

6. Make a chart with two columns: "Attitude to

Patriating Constitution" and "Reasons." Complete

the chart with information from the text for Trudeau,Quebec, and Other Provinces.

7. a) Do you think Levesque was betrayed by theKitchen Compromise? Explain.

b) Role-play a conversation between Lbvesque and

Trudeau on the Kitchen Compomise.

200 Unit I Canada in the Twentieth Century

Introduction

It sometimes seems as if life would be much sim¬pler without the restrictions placed on us daily bygovernment regulations. Yet, if you were free torun all aspects of your own life, how would youprovide health care for yourself? Or organize amethod of trading with foreign countries? Or pro¬tect yourself from acts of aggression by others?Or obtain the skills and training necessary to entera career of your choice? Expecting each individualto handle all these aspects of life alone would beunrealistic. Therefore, our nation, like other so¬cieties, has created a formal system of decisionmaking to assist us. This decision-making systemis called government.

Our government acts, for the most part, ac¬

cording to established rules and procedures, whichover time become traditions. The bodies or groupsresponsible for carrying out specific aspects ofthe government's work are called institutions, suchas the military, the post office, police forces, andschools. Each of these institutions provides ser¬vices that address the needs of Canadians.Institutions also help to unify people—to promotewhat is common to all people of the nation.

In this chapter, you will leam about the mainfeatures of Canada's federal and representativesystem of government. We will look at the originsof our system, and at how it works today. We willalso look at some of the more controversial as¬pects of government, such as the campaign to re¬form the Senate.

Foundations of OurGovernment

Before the appearance of Europeans, Aboriginalpeoples used many methods of decision makingand power sharing. Each First Nation had its ownsystem of governance. Some relied upon hereditaryleaders whose positions were handed downthrough a clan or family; others chose leadersbased on their wisdom, strength, and other abili¬ties. Still others made decisions in open commu¬nity discussions. All these methods of decisionmaking relied on participation by members of thecommunity and were carried on from one gener¬ation to the next. These traditions were not for¬mally recorded or written into documents. Rather,

Figure 9-1 Members of the

Canadian Forces makesandbags in the town of St.

Germain, Manitoba, south ofWinnipeg, in 1997. The RedRiver flooded during the springthaw, threatening to swamp

many communities.

Gathering information Themilitary is one example of agovernment institution. What

other institutions can youthink of?

Chapter 9 The Structure of Canada's Government 221

they were a part of the oral (spoken) traditions ofCanada's First Nations.

Our formal methods of decision making, in¬cluding written laws and institutions such as elec¬tions, have their roots in the traditions of thenation states of Europe. European colonistsbrought their forms of government with them toNorth America. In Canada, the British parlia¬mentary tradition became the basis for our na¬tional and provincial governments. The principalfeatures of this tradition arc representative democ¬racy and constitutional monarchy.

Representative Democracy

Canada operates on democratic principles.Democracy, which means '"rule by the people,"was first practised by the ancient Greeks. In theGreek city states, every eligible citizen partici¬pated directly by voting in all the decisions thataffected society. This was called direct democ¬racy. In modern societies, our large populationsmake this much involvement by each individualimpractical. Instead, citizens in representative

democracies such as Canada allow elected rep¬resentatives to make decisions on their behalf.

Constitutional Monarchy

Canada has strong historical ties to Great Britain,and has adopted many British political institu¬tions and traditions. One of these is constitu¬tional monarchy—the recognition of a monarch(king or queen) as head of state. The currentmonarch of Canada is Queen Elizabeth II, whois also the monarch of the United Kingdom andsixteen other nations that have some form ofBritish political tradition. In Canada, the monarchis represented by the governor general.

Queen Elizabeth does not actually ruleCanada—or any other nation—alone. She is notinvolved in the everyday affairs of governing thenation. For example, although royal assent is nec¬essary before a proposed law is passed, this as¬sent is rarely, if ever, withheld.

However, the presence of the monarch rep¬resents a crucial safeguard for our democracy.This is because she holds the powers of the

222 Unit 11 , Government and Law

Figure 9-2 Democracy

was established inAthens around 500BCE. Citizens were

guaranteed the right tomembership in theAssembly, freedom of

speech, and equalitybefore the law. The

Greek concept of"citizen" was limited

to free men (not slavesor women) who owned

property.

Thinking criticallyWhat qualifications doyou think should berequired for a personto be considered a"citizen"?

Section 52:

The Constitutionof Canada is thesupreme law of

Canada, and any

law that is incon¬

sistent with theprovisions of theConstitution is, tothe extent of theinconsistency, of

no force or effect.

Crown. The Crown has ultimate power, beyondthat held by any particular government at any par¬ticular time. Under our current system, the pow¬

ers of the Crown are vested in the queen, and inthe governor general as her representative.

For example, if the prime minister were todecide not to call an election within five years asrequired by law, the governor general could orderhim or her to do so—in the name of the Crown. Ifthe prime minister refused, the governor generalcould call on the army to force the election. Thisultimate authority ensures that no one, not eventhe leader of the nation, can ignore the law. Thisis the power of the Crown.

The powers and responsibilities of themonarch and the governor general, as well as thoseof citizens, elected representatives, and otherswho make up our government, have developedover time. The specific details are set out in theCanadian Constitution, a legal document thatoutlines who should have the power to make var¬ious decisions. Our Constitution is the supremelaw of the land. It outlines the structure of ourgovernment and defines and limits the govern¬ment's power. Canada is called a constitutionalmonarchy because the powers and responsibili¬ties of the monarch are subject to the laws setforth in the Constitution. Not even the monarchis exempt from following these laws.

Figure 9-4 An excerpt from the Canadian

Constitution.

Identifying viewpoint What view of power andresponsibility is evident in this excerpt? What doesthis indicate about our system of government?

Figure 9-3 Queen Elizabeth

signs Canada's constitutionalproclamation in Ottawa onApril 17, 1982, as Prime

Minister Pierre Trudeau lookson.

Thinking critically Somepeople think we should cutour ties to the Britishmonarchy. How would this

change the structure of ourgovernment? Do you think

this is a good idea? Why orwhy not?

Chapter 9 The Structure of Canada's Government 223

The Written Constitution

Canada has both a written and an unwritten con¬stitution. Most of the written part, drafted in 1867during Confederation, was originally called theBritish North America (BNA) Act. The powers ofthe representatives of the citizens, the federal andprovincial governments, and the monarch wereset out in this act. Since its amendment in 1982,Canada's written Constitution now has three main

parts:

a description of the powers of provincial leg¬islatures and Parliament, as well as their partsand authoritya Charter of Rights and Freedoms that out¬lines the basic rights and responsibilities thatall Canadians possessan amending formula, which sets out ways inwhich the Constitution may be changed oraltered. This formula requires that the fed¬eral government and seven of the tenprovinces agree on the proposed amendmentor change. The seven provinces must makeup at least one-half of the total population ofCanada.

The Unwritten Constitution

There are other rules and practices concerningthe roles and functions of Parliament and provin¬cial legislatures that are unwritten. These arebased on the thousand years of parliamentary tra¬dition that we have inherited from Britain. Thesetraditions, along with the written Constitution,provide the basis for the sharing of power betweenrulers and the people.

Numerous customs, laws, and statutes that

are a part of the British tradition make up theunwritten part of our Constitution. For example,there is no mention of political parties in theConstitution Act, yet they are an important part ofhow we govern ourselves (see Chapter 10).

The Federal SystemAt the time of Confederation, the colonies ofCanada East and Canada West (which becameQuebec, and Ontario, respectively), NewBrunswick, and Nova Scotia were united to form

tire nation of Canada. Unity would allow the once-separate colonies to pool their resources for de¬fence, trade, and other common goals. However,

none were willing to give up their autonomy com¬pletely to a central government. As a compromise,the Fathers of Confederation chose to unite theseprovinces under a federal system—an organizationof regional governments (provinces), each actingon behalf of its own residents, with a central gov¬ernment in Ottawa responsible for matters vitalto the nation as a whole. This system is some¬times referred to as federalism.

Areas that require a consistent national policysuch as defence, currency, and the postal systemwere made a federal (or central) responsibility.The provincial governments were given jurisdictionover areas "best handled locally," such as educa¬tion. There are also areas of shared powers: forexample, both the federal and provincial govern¬ments can create laws regarding agriculture, im¬migration, and the environment.

The Fathers of Confederation assigned allnew areas of decision making that did not 3^et existor were not listed in 1 867 to the federal govern¬ment as residual (leftover) powers. This is whythe federal government is responsible for lawsregarding telecommunications and information

Federal Shared ProvincialResponsibilities Responsibilities Responsibilities

National Defence Immigration Education

Foreign Policy Agriculture Charities

Aboriginal Affairs Flealth Care Health Services& Hospitals

Postal Services Natural LicencesResources

Banking System Environmental HighwaysIssues

Marriage & ProvincialDivorce Law Court System

Criminal Law Provincial Police& Prisons

Federal Prisons

Figure 9-5 Some federal, provincial, and shared

responsibilities.

224 Unit II Government and Law

Figure 9-6 The environmentis one area of overlapping

powers between the federaland provincial governments.For example, the Lakeviewcoal-fired power station in

Ontario is a major emitter ofnitrogen oxide, whichpollutes the air in Canada andthe United States. The

federal government has the

responsibility to negotiatesmog reduction limits withthe United States, but cannot

force the Ontario governmentto reduce that province'semissions.

Thinking critically What arethe disadvantages of shared

powers with regard to theenvironment?

services such as cable television stations, com¬puters, modems, and faxes. The Fathers ofConfederation could not have predicted such ad¬

vances in technology, yet they had the foresightto provide for the control of "unknown possibili¬ties." Still other federal responsibilities includeissues related to debt and social security reform.

Soon after Confederation, the provinces beganchallenging the powers of the federal government.At that time, the judicial committee of the PrivyCouncil in Britain was the court that dealt withconstitutional matters, and its decisions consis¬tently favoured the provinces. Today, the PrivyCouncil no longer makes these decisions for us,but the division of powers between federal andprovincial governments is still a contentious issue.The separatist movement in Quebec is one ex¬ample of this tension, but not the only one.Provinces in Canada's West and Hast feel that thepolicies of the federal government have alwaysfavoured the populous central provinces of Ontarioand Quebec. The Reform Party started in 1987

in the western provinces as a response to this feel¬ing of lack of power and alienation from decisionmaking. In 2000, the Reform Party attracted dis¬affected members of the Progressive ConservativeParty and became the Canadian Alliance Party.The Canadian Alliance was elected as the officialopposition in November 2000. As we saw inChapter 3, eastern provinces have also tried toform alliances in order to increase their power.

The Creation of Municipal Governments

The local, or municipal, level of government hasthe greatest amount of contact with individual cit¬izens. The essential services that municipalitiesprovide include garbage collection and disposal,sewage treatment, fire protection, water supply,and establishment of schools. However, munici¬pal governments do not have the same level of au¬tonomy as provincial or territorial governments.Under the Canadian Constitution, provincial gov¬ernments decide what form municipal govern¬ments take, their powers, and their responsibilities.

Chapter 9 The Structure of Canada's Government 225