Girish Mahajan

Canada Act 1982

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Citation  1982 c. 11
Royal assent  29 March 1982
Canada Act 1982
Long title  An Act to give effect to a request by the Senate and House of Commons of Canada.

The Canada Act 1982 (1982 c. 11) is an Act of the Parliament of the United Kingdom that was passed at the request of the Canadian federal government to "patriate" Canada's constitution, ending the necessity for the British parliament to be involved to make changes to the Constitution of Canada. The Act also formally ended the "request and consent" provisions of the Statute of Westminster 1931 in relation to Canada, whereby the British parliament had a general power to pass laws extending to Canada at its own request.

Contents

Annexed as Schedule B to the Act is the text of the Constitution Act, 1982, in both of Canada's official languages (i.e. English and French). Because of the requirements of official bilingualism, the body of the Canada Act itself is also set out in French in Schedule A to the Act, which is declared by s. 3 to have "the same authority in Canada as the English version thereof".

History

Canada's political history began with the British North America Act, 1867 (currently officially called the Constitution Act, 1867). This act created the modern state of Canada by combining the Province of Canada (now Ontario and Quebec), Nova Scotia, and New Brunswick into a dominion within the British Empire. From this Canada adopted a Westminster style government with a Parliament of Canada. A Governor General fulfilled the constitutional duties of the British Sovereign on Canadian soil.

Despite this, the United Kingdom still had the power to legislate for Canada. The Statute of Westminster 1931 removed this power of the British Parliament for Canada, as well as the other British Dominions (Australia [adopted 1942], the Irish Free State, New Zealand [adopted 1947], the Union of South Africa, and the Dominion of Newfoundland [never ratified, joined Canada in 1949]), except where the Dominion consented to Imperial legislation. Also, the British North America (No. 2) Act, 1949 was passed by the British Parliament, giving the Parliament of Canada significant constitutional amending powers.

However, after the Statute of Westminster, 1931, Canada decided to allow the British Parliament to temporarily retain the power to amend Canada's constitution, on request from the Parliament of Canada. In effect, an Act of the British Parliament (as requested by the Parliament of Canada) was required to make some amendments in the Canadian constitution. Delay in the patriation of the Canadian constitution was due in large part to the lack of agreement concerning a method for amending the constitution that would be acceptable to all of the provinces, particularly Quebec.

Enactment of the Act

The Canada Act 1982 was passed by the Parliament of the United Kingdom in response to the request from The Parliament of Canada to take over authority for amending its own constitution. After unpromising negotiations with the provincial governments, Pierre Trudeau proclaimed that the federal Parliament would unilaterally patriate the constitution. After numerous references by the provinces, the Supreme Court of Canada ruled in the Patriation Reference that provincial consent was not legally necessary, but to do so without substantial consent would be contrary to a longstanding constitutional convention. Trudeau succeeded in convincing nine provinces out of ten by agreeing to the addition of a Notwithstanding Clause to limit the application of the Canadian Charter of Rights and Freedoms as a result of discussions during a First Ministers' conference and other minor changes in November 1981.

In the UK, forty-four Members of Parliament voted against the Act, including 24 Tory and 16 Labour MP's, citing concerns over Canada's past mistreatment of Quebec and Aboriginal peoples (as recalled with frustration by Jean Chrétien in his memoirs Straight from the Heart); overall there was little opposition from the British government to passing the Act. However, new research into documents of the Thatcher government indicate that Britain had serious concerns about the inclusion of the Canadian Charter of Rights and Freedoms within the Canada Act. Part of this concern stemmed from letters of protest the British received about it from provincial actors, but also because the Charter undermined the principle of parliamentary supremacy, which until that time had always been a core feature of every government practising the Westminster system.

Through section 2 of the Canada Act 1982, the United Kingdom ended its involvement with further amendments to the Canadian constitution. The procedure for amending the Constitution Act, 1982 must comply with its Part V, instead of the usual parliamentary procedure requiring the monarch's Royal Assent for enacting legislation.

Proclamation by the Queen of Canada

While the Canada Act 1982 received royal assent on March 29, 1982 in London, it was not until the Queen visited Canada the following month that the Constitution Act, 1982, its Canadian equivalent, was proclaimed by letters patent as a statutory instrument by the Queen during her presence in Canada.

Canada's Constitution Act, 1982 was signed into law by Elizabeth II as Queen of Canada on April 17, 1982 on Parliament Hill in Ottawa. Queen Elizabeth's constitutional powers over Canada were not affected by the Act, and she remains Queen and Head of State of Canada. Canada has complete sovereignty as an independent country, however, and the Queen's role as monarch of Canada is separate from her role as the British monarch or the monarch of any of the other Commonwealth realms.

References

Canada Act 1982 Wikipedia


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