Constitutional debate in Canada
Encyclopedia
The Constitutional debate of Canada is an ongoing debate covering various political issues regarding the fundamental law of the country. The debate can be traced back to the Royal Proclamation, issued on October 7, 1763, following the signing of the Treaty of Paris (1763)
Treaty of Paris (1763)
The Treaty of Paris, often called the Peace of Paris, or the Treaty of 1763, was signed on 10 February 1763, by the kingdoms of Great Britain, France and Spain, with Portugal in agreement. It ended the French and Indian War/Seven Years' War...

 wherein France ceded most of New France
New France
New France was the area colonized by France in North America during a period beginning with the exploration of the Saint Lawrence River by Jacques Cartier in 1534 and ending with the cession of New France to Spain and Great Britain in 1763...

 to Great Britain in favour of keeping Guadeloupe
Guadeloupe
Guadeloupe is an archipelago located in the Leeward Islands, in the Lesser Antilles, with a land area of 1,628 square kilometres and a population of 400,000. It is the first overseas region of France, consisting of a single overseas department. As with the other overseas departments, Guadeloupe...

.

Since the enactment of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...

, which brought the Province of Canada
Province of Canada
The Province of Canada, United Province of Canada, or the United Canadas was a British colony in North America from 1841 to 1867. Its formation reflected recommendations made by John Lambton, 1st Earl of Durham in the Report on the Affairs of British North America following the Rebellions of...

, New Brunswick
New Brunswick
New Brunswick is one of Canada's three Maritime provinces and is the only province in the federation that is constitutionally bilingual . The provincial capital is Fredericton and Saint John is the most populous city. Greater Moncton is the largest Census Metropolitan Area...

, and Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...

 together as the Dominion of Canada, the debate has focused on these issues:
  • The interpretation of the Constitution
  • The division of powers
    Canadian federalism
    Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...

     between the federal and provincial governments
  • The type of federalism to be applied within the federation
  • The way the constitution should be amended
    Amendments to the Constitution of Canada
    Amendments to the Constitution of Canada are changes to the Constitution of Canada initiated by the government. Only since 1982 has there been an official protocol to amend the Constitution.- History :...

  • The inclusion of specific civil rights in the constitution

Historical overview

Main article: Constitutional history of Canada
Constitutional history of Canada
The constitutional history of Canada begins with the 1763 Treaty of Paris, in which France ceded most of New France to Great Britain. Canada was the colony along the St Lawrence River, part of present-day Ontario and Quebec. Its government underwent many structural changes over the following century...



The initial policy of Great Britain with regards to its newly acquired colony of Quebec was revealed in a Royal Proclamation on October 7, 1763. The proclamation renamed Canada "The Province of Quebec", redefined its borders, and established a British appointed colonial government. The new governor of the colony was given the power and direction to summon and call general assemblies of the people's representatives.

The status quo

The current Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...

 consists of the 1867 British North America Act (BNA) and subsequent amendments.

Distribution of legislative powers

Main article: Distribution of legislative powers in Canada

The BNA Act defined the areas of jurisdiction for the provinces and the federal government. There are 29 exclusive federal jurisdictions and 16 provincial jurisdictions. The provincial jurisdictions are listed under sections 92, 93 and 95 of the constitution.

The BNA Act granted the federal parliament all "residuary" powers
Peace, order and good government
In many Commonwealth jurisdictions, the phrase "peace, order and good government" is an expression used in law to express the legitimate objects of legislative powers conferred by statute...

 not already defined as provincial. It also gave the federal government a veto power over provincial legislation
Disallowance and reservation
Disallowance and reservation are constitutional powers that theoretically exist in certain Commonwealth realms to delay or overrule legislation. Originally created to retain the Crown's authority over colonial authorities across the British Empire, these powers are now generally obsolete, or have...

. The members of the Senate of Canada, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

, judges and the judges of all of the provinces' highest courts are appointed by the federal executive.

The Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...

, did not change the divisions of responsibilities between the provincial and the federal legislatures, except for the provincial jurisdiction over natural resources and energy, which was clarified and slightly expanded.

Charter of rights and freedoms

Main article: Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...



A Charter of rights and freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

 was enshrined into the constitution of Canada in 1982. The charter covers fundamental liberties, democratic rights, mobility rights, legal rights, equality rights, language rights and minority language education rights.

Amendment process

Main article: Amendments to the Constitution of Canada
Amendments to the Constitution of Canada
Amendments to the Constitution of Canada are changes to the Constitution of Canada initiated by the government. Only since 1982 has there been an official protocol to amend the Constitution.- History :...



The 1982 constitutional reform introduced an amendment process that no longer involved the approval of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

. The amendment formula is described in section 37 to 49 of the constitution. In general, amendments can be passed by the House of Commons, the Senate, and a two-thirds majority of the provincial legislatures representing at least 50% of the Canadian population (the 7/50 formula). Certain types of amendments use other amending formulas.

Foundation of the nation

In Canada West (Ontario), the confederation process was promoted as the act of foundation of a new British nation. The project generally received wide support in the press and in the political class. It is primarily the politicians of Canada West that, with the Great Coalition
Great Coalition
The Great Coalition was a grand coalition of the political parties of the two Canadas in 1864. The previous collapse after only three months of a coalition government formed by George-Étienne Cartier, George Brown and John A. MacDonald. The Great Coalition was formed to stop the political deadlock...

, orchestrated the process which led to the legislative union of the British North American colonies.

The anti-Confederation movement was however quite strong in one of the two Maritime provinces that were initially federated by the BNAA. The Liberal politicians of the Maritime provinces did not support the movement of the Great Coalition before or after the fact.

In Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...

, 36 out of 38 seats of the provincial legislature and 18 out of 19 seats of the new federal legislature went to anti-Confederation candidates at the first election. Premier William Annand
William Annand
William Annand was a Nova Scotia publisher and politician.Born in Halifax, Annand was first elected to the Nova Scotia House of Assembly in 1836 and supported demands for responsible government. He lost his seat in 1843 and became proprietor and editor of the Novascotian and Morning Chronicle...

 and federal MP Joseph Howe
Joseph Howe
Joseph Howe, PC was a Nova Scotian journalist, politician, and public servant. He is one of Nova Scotia's greatest and best-loved politicians...

 pushed for the removal of Nova Scotia from the new Dominion. Howe eventually accepted a position in the federal government of McDonald, while Annand kept fighting Confederation up until 1869.

The movement died shortly after, when the idea of reversing the process of confederation was abandoned. The poin t of view that the confederation is the act of foundation of the Canadian nation was and still is today the policy of the federal government.

Pact between two founding peoples

In Canada East
Canada East
Canada East was the eastern portion of the United Province of Canada. It consisted of the southern portion of the modern-day Canadian Province of Quebec, and was primarily a French-speaking region....

 (Quebec), the confederation project was promoted by the Parti bleu
Parti bleu
The Parti bleu was a moderate political group in Quebec, Canada that emerged in 1854. It was based on the moderate reformist views of Louis-Hippolyte Lafontaine, and was a rival to the radical Parti rouge....

and opposed by the Parti rouge
Parti rouge
The Parti rouge was formed in the Province of Quebec, around 1848 by radical French-Canadians inspired by the ideas of Louis-Joseph Papineau, the Institut canadien de Montréal, and the reformist movement led by the Parti patriote of the 1830s.The party was a successor to the Parti patriote...

. George-Étienne Cartier
George-Étienne Cartier
Sir George-Étienne Cartier, 1st Baronet, PC was a French-Canadian statesman and Father of Confederation.The English spelling of the name, George, instead of Georges, the usual French spelling, is explained by his having been named in honour of King George III....

 supported and promoted the project as a way to regain the political autonomy that Lower Canada
Lower Canada
The Province of Lower Canada was a British colony on the lower Saint Lawrence River and the shores of the Gulf of Saint Lawrence...

 had lost with the forced Union of 1840. Reluctant at first, the Catholic clergy eventually supported confederation when it became known that education and "health" were going to be exclusive provincial jurisdictions.

After 1867 and up until the 1960s, the idea that the BNAA was a legal document containing guarantees to the equality of the two founding peoples was taken for granted by most members of the intellectual elite of French Canada. Nationalist politicians from Quebec (sometimes Liberal, sometimes Conservative) were elected on programs which stated how they were to defend the constitutional guarantees granted by Great Britain to French Canadians in order to protect their nationality. Federal politicians, such as Henri Bourassa
Henri Bourassa
Joseph-Napoléon-Henri Bourassa was a French Canadian political leader and publisher. He is seen by many as an ideological father of Canadian nationalism....

, advocated more autonomy for Canada within the British Empire, while provincial politicians such as Honoré Mercier
Honoré Mercier
Honoré Mercier was a lawyer, journalist and politician in Quebec, Canada. He was the ninth Premier of Quebec from January 27, 1887 to December 21, 1891, as leader of the Parti National or Quebec Liberal Party ....

 defended the autonomy of the province of Quebec within the Canadian Dominion.

Just another British act

The Parti rouge
Parti rouge
The Parti rouge was formed in the Province of Quebec, around 1848 by radical French-Canadians inspired by the ideas of Louis-Joseph Papineau, the Institut canadien de Montréal, and the reformist movement led by the Parti patriote of the 1830s.The party was a successor to the Parti patriote...

of Canada East
Canada East
Canada East was the eastern portion of the United Province of Canada. It consisted of the southern portion of the modern-day Canadian Province of Quebec, and was primarily a French-speaking region....

 opposed the confederation process, just as its ancestor party, the Parti patriote, had opposed the Union process. Some rouges such as Antoine-Aimé Dorion
Antoine-Aimé Dorion
Sir Antoine-Aimé Dorion, PC was a French Canadian politician and jurist.-Early years:He was born in Lower Canada in 1818, the son of Pierre-Antoine Dorion, a merchant and member of the Legislative Assembly of Lower Canada who supported Louis-Joseph Papineau...

, demanded that the project be submitted to a direct vote by the people, convinced it would be rejected. The process which led to the confederation was considered illegitimate because in their opinion it was undemocratic.

Other liberals suggested a highly decentralized confederation that would have given only certain limited powers to the union government. The party lead the anti-confederation campaign and at the first provincial elections, 13 out of 65 anti-confederation candidates were elected, obtaining 45% of the recorded votes.

Much later, in the late 1950s, the opinions of the Parti rouge
Parti rouge
The Parti rouge was formed in the Province of Quebec, around 1848 by radical French-Canadians inspired by the ideas of Louis-Joseph Papineau, the Institut canadien de Montréal, and the reformist movement led by the Parti patriote of the 1830s.The party was a successor to the Parti patriote...

would be supported by the first advocates of the independence of Quebec.

Confederation / federation

Since the creation of the federal state, the role of this new level of government has been the object of a debate. As of 1867, some politicians have seen the federal government as the central, national government of Canada whereas others have seen it as a confederal government, the creation of the provinces, responsible for administering things the later had in common.

Symmetrical and asymmetrical federalism

Symmetrical federalism refers to a political organization where all federated states have equal status and autonomy within the greater ensemble. Examples of symmetrical federations are the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 and Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

.

Asymmetrical federalism refers to a political organization where the federated states have variable levels of autonomy within the greater ensemble. Examples are Belgium
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...

 and Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....

.

Binationalism, bilingualism and biculturalism

Mostly supported by French Canadian
French Canadian
French Canadian or Francophone Canadian, , generally refers to the descendents of French colonists who arrived in New France in the 17th and 18th centuries...

s, the binational confederation was seen as a way for French Canadians and British Canadians to coexist within the same country and share common institutions. Since French Canadians viewed themselves as a distinct nation and wished for this nation to keep existing, many political leaders from Quebec promoted the official recognition of the French language by the federal government and all provincial governments. This view is today associated with the pre-Quiet Revolution
Quiet Revolution
The Quiet Revolution was the 1960s period of intense change in Quebec, Canada, characterized by the rapid and effective secularization of society, the creation of a welfare state and a re-alignment of politics into federalist and separatist factions...

 era.

Multicultural nation state

Promoted by the Liberals after the arrival of Pierre E. Trudeau, this view of Canada is at once readily embraced by a great number of Canadians and is enshrined in Section Twenty-seven of the Canadian Charter of Rights and Freedoms
Section Twenty-seven of the Canadian Charter of Rights and Freedoms
Section Twenty-seven of the Canadian Charter of Rights and Freedoms is a section of the Charter that, as part of a range of provisions within the section 25 to section 31 bloc, helps determine how rights in other sections of the Charter should be interpreted and applied by the courts...

. It is, however, seen as totally unacceptable by essentially all Quebec provincial politicians because to them it fails at recognizing the national character of Quebec society and the consequences of this for the Quebec state as a member state of the Canadian federation.

The concept of a pluralistic society is generally perceived positively in Quebec, which is also a land open to immigration. However, Quebec policies speak of civic "interculturalism
Interculturalism
Interculturalism is the philosophy of exchanges between cultural groups within a society, as used by nationalists of the Canadian province of Quebec. Quebeckers have historically been sensitive to any perceived degradation of their heritage...

" rather than multiculturalism
Multiculturalism
Multiculturalism is the appreciation, acceptance or promotion of multiple cultures, applied to the demographic make-up of a specific place, usually at the organizational level, e.g...

, which is associated with ghettoization. The Canadian multiculturalism policy is often perceived negatively, for it depicts the French-speaking majority of Quebec as one of the many ethnic groups of Canada, therefore denying the national character of Quebec, and undermining the efforts of the Quebec state to integrate immigrants into its mainstream French-speaking society.

Multinational state

Many politicians and public figures think that Canada would move forward in the recognition of its own diversity by declaring itself a de jure multinational state. With regards to Quebec, this view would be more in line with the "nation within the nation" of former Prime Minister Lester B. Pearson
Lester B. Pearson
Lester Bowles "Mike" Pearson, PC, OM, CC, OBE was a Canadian professor, historian, civil servant, statesman, diplomat, and politician, who won the Nobel Peace Prize in 1957 for organizing the United Nations Emergency Force to resolve the Suez Canal Crisis...

 in the pre-Trudeau era.

One nation, one country

Many Canadians outside Quebec think of Canada as a monolithic nation with 10 equal provinces. Since they see only one nation in the country, they are opposed to any kind of asymmetrical relation with Quebec or any other province. Believing that Canada needs a strong federal government to defend and promote national unity, they are by principle reluctant to a decentralization of powers to the provinces.

Two nations, two countries

With secession, many Quebec nationalists think they have the answer to Canada's continual constitutional debate. Marginalized after the Patriotes rebellion of 1837–38, the secessionist option was resurrected as a credible solution in the wake of the 1960s Quiet Revolution of Quebec. Some politicians see the independence as the normal conclusion of the Quebec struggle for the conservation of its autonomy within the Canadian federal framework. Some see it in a broader perspective of every people's right to self-determination and what they see as the normal evolution of a 400-year-old former French colony that fell victim to the colonial wars between Great Britain and France.

Maintain status quo

The official position of the federal government of Canada, an overwhelming majority of Canadians outside Quebec and a minority of people (20%) inside Quebec. The Liberal Party of Canada is the main actor behind the efforts to maintain the constitutional status quo.

Constitutional reforms

Position of many federalists from English-speaking Canada and Quebec. Seen as the only way to avoid the secession of Quebec. Since the rise of the sovereigntist movement, this option seems to gather a solid 40% of support among Quebec voters. Efforts to reform the Canadian constitution in order recognize Quebec's specificity (or distinct society
Distinct society
Distinct society is a political term especially used during constitutional debate in Canada, in the second half of the 1980s and in the early 1990s, and present in the two failed constitutional amendments, the Meech Lake Accord and the Charlottetown Accord...

) and provide a means to accommodate its need for greater autonomy have resulted in the Meech Lake Accord
Meech Lake Accord
The Meech Lake Accord was a package of proposed amendments to the Constitution of Canada negotiated in 1987 by Prime Minister Brian Mulroney and ten provincial premiers. It was intended to persuade the government of the Province of Quebec to endorse the 1982 Canadian Constitution and increase...

 which collapsed before it came into effect and the Charlottetown Accord
Charlottetown Accord
The Charlottetown Accord was a package of proposed amendments to the Constitution of Canada, proposed by the Canadian federal and provincial governments in 1992. It was submitted to a public referendum on October 26 of that year, and was defeated.-Background:...

 which was rejected by a majority of Canadians and also a majority of Quebecers in referendum in 1992. The option is still supported, with more or less of energy, by the Liberal Party of Quebec and the Action Démocratique.

Independence of Quebec

This is the position of the Quebec sovereignists
Quebec sovereignty movement
The Quebec sovereignty movement refers to both the political movement and the ideology of values, concepts and ideas that promote the secession of the province of Quebec from the rest of Canada...

. Seen as the best or only way to ensure the normal development of the Quebec society from a cultural, economic and social point of view. Since the 1980s, this option seems to gather, from one survey to the next a solid 40% of support among Quebec voters. In 1980, the Quebec government held a referendum on sovereignty-association, which was rejected by 60% of the Quebec electorate, and a second one on sovereignty with optional partnership, which was rejected by 50.6% of the same electorate. The option is presently supported by the Parti Québécois
Parti Québécois
The Parti Québécois is a centre-left political party that advocates national sovereignty for the province of Quebec and secession from Canada. The Party traditionally has support from the labour movement. Unlike many other social-democratic parties, its ties with the labour movement are informal...

 and Québec solidaire
Québec Solidaire
Québec solidaire is a democratic socialist and sovereigntist political party in Quebec, Canada, that was created on 4 February 2006 in Montreal. It was formed by the merger of the left-wing party Union des forces progressistes and the alter-globalization political movement Option Citoyenne, led...

, both provincial parties in Quebec. Secession is not considered an option by federal-level parties other than the Bloc Québécois
Bloc Québécois
The Bloc Québécois is a federal political party in Canada devoted to the protection of Quebec's interests in the House of Commons of Canada, and the promotion of Quebec sovereignty. The Bloc was originally a party made of Quebec nationalists who defected from the federal Progressive Conservative...

 and essentially all the population of the English-speaking provinces.

See also

  • Politics of Canada
    Politics of Canada
    The politics of Canada function within a framework of parliamentary democracy and a federal system of parliamentary government with strong democratic traditions. Canada is a constitutional monarchy, in which the Monarch is head of state...

  • Politics of Quebec
    Politics of Quebec
    The politics of Quebec are centred on a provincial government resembling that of the other Canadian provinces, namely a constitutional monarchy and parliamentary democracy. The capital of the province is Quebec City, where the Lieutenant Governor, Premier, the legislature, and cabinet reside.The...

  • List of documents from the constitutional history of Canada
  • Unsuccessful attempts to amend the Canadian Constitution
    Unsuccessful attempts to amend the Canadian Constitution
    Since the Constitution of Canada was patriated, in 1982, only ten minor Amendments to the Constitution of Canada have been passed. There have, however, been a number of unsuccessful attempts to amend the Constitution under the new amending formula....

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