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) wherein France ceded most of New France to Great Britain in favour of keeping Guadeloupe.
Since the enactment of the Constitution Act, 1867, which brought the Province of Canada, New Brunswick, and Nova Scotia together as Canada, the debate has focused on these issues:
The interpretation of the Constitution
The division of powers between the federal and provincial governments
The type of federalism to be applied within the federation
The way the constitution should be amended
The inclusion of specific civil rights in the constitution
Historical overview
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 consists of the 1867 British North America Act (BNA) and subsequent amendments.
Distribution of legislative powers
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 not already defined as provincial. It also gave the federal government a veto power over provincial legislation. The members of the Senate of Canada, the Supreme Court of Canada, judges and the judges of all of the provinces' highest courts are appointed by the federal executive.
The Constitution Act, 1982, 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
The Canadian Charter of Rights and Freedoms 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
The 1982 constitutional reform introduced an amendment process that no longer involved the approval of the Parliament of the United Kingdom. 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.
Debated areas
Interpretation of the British North America Act
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, 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, 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 and federal MP Joseph Howe 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 point 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.