Class notes

The British Constitutional Content 2: The Charter of Rights

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Course
LAWS 1001

Institution
Carleton University (CU )

The British Constitutional Content 2: The Charter of Rights outlines key developments in Canada's constitutional history, including the 1982 Constitution Act's "patriation," which granted Canada the ability to amend its constitution domestically, severing its ties to the UK Parliament. The Charter ...

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Uploaded on October 12, 2023
Number of pages 4
Written in 2019/2020
Type Class notes
Professor(s) Doris e. buss
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Law
October 18th

The British Constitutional Content 2: The Charter of Rights

The Constitution Act, 1982 includes the following major matters added to the Canadian
constitution:
 ‘Patriation’ of the constitution: By virtue of the Canada Act, 1982 future constitutional
amendments for Canada can be made by way of domestic processes (Constitution Act,
1982, Part V, sections 38-49) without requiring an act of the UK Parliament at
Westminster.
o For the first time, Canada could amend the Constitution without asking Britain
for permission.
o Prior to this act, the provinces did not want the federal government to be able to
amend the constitution without agreement from the provinces, so they resisted
a constitutional amending process.
o The process to self-governance was gradual and formed out of compromise.
 Constitutional entrenchment of the Royal Proclamation, 1763 (Part II, section 35).
 Constitutional entrenchment of rights within the Canadian Charter of Rights and
Freedoms (Part I, sections 1-34).

Patriation and Steps towards Self Government
Once British North American colonies went through formal reception with representative
legislatures and courts, there was some autonomy but direct British oversight by way of:
 Regular view of colonial legislation that could be disallowed if conflicting with imperial
policy;
 Three forms of Imperial Review:
o 1. All Colonial legislation was reviewed by the colonial office in London to
determine whether or not it was consistent with English law.
o The British Parliament still had the power to pass Imperial legislation.
 Ex. Abolition of slavery in Britain, was an imperial act as it was consistent
throughout the British empire.
o 2. If there is a conflict between the imperial act and colonial legislation, the
imperial act prevails.
o 3. Decisions of colonial courts could be appealed to the Judicial Committee of the
Privy Council (JCPC) in London.
 Decisions of colonial courts could be appealed to the Judicial Committee of the Privy
Council (JCPC) in London.
 Confederation, 1867 Canada leaves colonial status, becomes the first Dominion in the
British Empire: new provincial legislatures exercise many of the legislative powers of the
formal colonial legislatures, the new federal parliament exercises other legislative
powers (ex. Criminal law, trade) and new legislative powers developed from London (ex.
Defence, Indigenous affairs).

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