Author Topic: Constitution of Canada  (Read 484 times)

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Offline Super Colin Blow

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Re: Constitution of Canada
« Reply #15 on: August 27, 2017, 07:32:55 pm »
So in other words, any time they say "the queen getting advice in council" it basically means the executive powers of the Canadian Government?

I think I see what you mean, Moonlight.  It's almost as if the mechanics of cabinet government don't need to be mentioned at all, since they're already generally accepted? I guess those powers historically came at the expense of the crown, so I suppose it works just as well to imply it?
« Last Edit: August 27, 2017, 07:36:25 pm by SuperColinBlow »
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Offline Super Colin Blow

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Re: Constitution of Canada
« Reply #16 on: August 30, 2017, 09:48:46 am »
One other thing I do not understand.  What is the "notwithstanding clause" all about?
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Online Michael Hardner

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Re: Constitution of Canada
« Reply #17 on: August 30, 2017, 10:08:22 am »
https://en.wikipedia.org/wiki/Section_33_of_the_Canadian_Charter_of_Rights_and_Freedoms

Allows legislatures to temporarily pass unconstitutional laws, as I understand ?

Offline TimG

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Re: Constitution of Canada
« Reply #18 on: August 30, 2017, 11:15:25 am »
One other thing I do not understand.  What is the "notwithstanding clause" all about?
The charter authors knew there would be conflicts between the rulings of unelected judges creating new interpretations of the general principles in the charter and the democratically expressed will of the people. The notwithstanding clause is an important limit on the power of the judiciary which allows the elected representatives to over rule them. This check which has only needed to be used rarely, however, as the cost of implementing the various rulings rises there we will eventually get to the point where legislatures need to routinely invoke it in order to manage government finances responsibly.

Offline segnosaur

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Re: Constitution of Canada
« Reply #19 on: August 30, 2017, 02:08:00 pm »
Re: Notwithstanding clause....

The charter authors knew there would be conflicts between the rulings of unelected judges creating new interpretations of the general principles in the charter and the democratically expressed will of the people. The notwithstanding clause is an important limit on the power of the judiciary which allows the elected representatives to over rule them. This check which has only needed to be used rarely, however, as the cost of implementing the various rulings rises there we will eventually get to the point where legislatures need to routinely invoke it in order to manage government finances responsibly.
A couple of other notes about the clause:

- Only certain rights can be overridden. For example, they can override the right to freedom of expression (as Quebec did with bill 101), but they can't override rights related to democracy/voting

- The notwithstanding clause expires after 5 years, but can be renewed indefinitely. For example, when Quebec brought in bill 101, they invoked Nothwithstanding (although they were doing that with pretty much every bill at the time.), They've had to continually invoke it every few years, otherwise their language laws might become unconstitutional. (The reason why it expires after 5 years is probably because that's the maximum length of time a legislature can sit, and it forces the next government to deal with the issue in some way, be it fixing the legislation to make it constitutional or reinvoking the notwithstanding clause.)


Offline Omni

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Re: Constitution of Canada
« Reply #20 on: August 30, 2017, 02:20:08 pm »
A couple of other notes about the clause:

- Only certain rights can be overridden. For example, they can override the right to freedom of expression (as Quebec did with bill 101), but they can't override rights related to democracy/voting

- The notwithstanding clause expires after 5 years, but can be renewed indefinitely. For example, when Quebec brought in bill 101, they invoked Nothwithstanding (although they were doing that with pretty much every bill at the time.), They've had to continually invoke it every few years, otherwise their language laws might become unconstitutional. (The reason why it expires after 5 years is probably because that's the maximum length of time a legislature can sit, and it forces the next government to deal with the issue in some way, be it fixing the legislation to make it constitutional or reinvoking the notwithstanding clause.)

Quebec, Saskatchewan, and the Yukon are so far the only ones to have successfully used it. Alberta tried with regard to same sex marriage legislation but were snubbed as the definition of marriage was deemed to be within the exclusive domain of the Parliament of Canada.

And you are correct, the 5 year limit concurs with the maximum time of a leg. can sit between elections.   



Offline cybercoma

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Re: Constitution of Canada
« Reply #21 on: September 01, 2017, 12:38:12 pm »
A couple of other notes about the clause:

- Only certain rights can be overridden. For example, they can override the right to freedom of expression (as Quebec did with bill 101), but they can't override rights related to democracy/voting

- The notwithstanding clause expires after 5 years, but can be renewed indefinitely. For example, when Quebec brought in bill 101, they invoked Nothwithstanding (although they were doing that with pretty much every bill at the time.), They've had to continually invoke it every few years, otherwise their language laws might become unconstitutional. (The reason why it expires after 5 years is probably because that's the maximum length of time a legislature can sit, and it forces the next government to deal with the issue in some way, be it fixing the legislation to make it constitutional or reinvoking the notwithstanding clause.)
The notwithstanding clause also has to be written into the legislation at the time of its passing. It can't be appended to the legislation after it fails a constitutional challenge.

Offline Queefer Sutherland

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Re: Constitution of Canada
« Reply #22 on: September 05, 2017, 12:34:53 pm »
OK, if anyone would volunteer to help me in this effort, I'm reading the British North America Act of 1867 (AKA Constitution Act) right now.  I find it interesting that there is no mention of a prime minister or a cabinet.  Just a privy council, a GG, the Queen.  Executive power seems to be more implied than it is actually stated.  I can fully see what you mean now.  It's like nothing is written in stone that actually happens.  (In our constitution, my last statement would only be 40% or so, true.)

In theory, our constitutional monarchy is still a monarchy, & ultimate power still rests in the Queen.  The GG is the Queen's representative in Canada.  (Fact: our Queen is referred to as the Queen of Canada, not the Queen of Britain, so she's "our" Queen & we're not technically ruled by Britain.).  However, over the many centuries, in Britain just like in Canada, the monarchy's authority has been challenged (ie: Magna Carta, 1688 Glorious Revolution etc) to the point that the monarchy/GG is essentially a rubber stamp to the will of parliament (the people).

I suppose this is all by unwritten convention.  The GG/crown technically by law still has the final authority & they must be the one to sign bills into law, but by convention the crown (GG) only acts on the advice of the PM who represents the will of Parliament.  The GG (representing the Queen) technically can still  refuse to sign a bill into law, but that would cause a constitutional crisis (since it would be undermining democracy & will of parliament), so the GG would only do that in the case of the PM doing horrifically bad/undemocratic things.  So in that sense, the GG can also act as a check on the PM's power so the PM can't go bonkers like a dictator.

It's an odd system.  With these conventional rules, parliament acts out its parts that everyone knows the rules to even though these rules, that have slowly developed over centuries, aren't written down anywhere, & it seems to work out ok.

I think the difference is that the US decided to start a brand new system from scratch, so it had to write down it's rules from the beginning.  In Britain (which we inherited our system from), the system wasn't formed from scratch but is based on a long & slow evolution in history where rules have changed based on real historical events as Parliament chipped away power from the monarchy.
« Last Edit: September 05, 2017, 12:41:11 pm by Moonlight Graham »
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Offline Super Colin Blow

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Re: Constitution of Canada
« Reply #23 on: September 05, 2017, 07:41:17 pm »
OK, understood.

I understand the advantage of implying something that has become the norm by convention rather than by statute.  You don't want everything written in stone, in any constitution, because things change.  (Incidentally there were plenty of "blanks" left in ours, assuming that future congresses would fill them.)  I think by contrast, the Japanese constitution of 1947 does specify quite a bit.  Everything is spelled out, including the fact that the emperor cannot interfere, no matter what happens.

Would the GG really stop a PM from "going bonkers"? After all, he's a personal appointee of a prime minister (even though the appointment is made by the Queen, it's always on the advice of the PM, right?)
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Online Michael Hardner

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Re: Constitution of Canada
« Reply #24 on: September 06, 2017, 06:18:15 am »
Would the GG really stop a PM from "going bonkers"? After all, he's a personal appointee of a prime minister (even though the appointment is made by the Queen, it's always on the advice of the PM, right?)

Nobody knows.  What's missing from that is that the PM alone can't submit a law for signing.  There's no equivalent of the 'executive order'.  So the whole governing party and senate would also have to 'go bonkers'. 

Offline cybercoma

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Re: Constitution of Canada
« Reply #25 on: September 07, 2017, 09:51:38 pm »
This might lead you to some more insight about how the monarchy and government interact.

https://en.m.wikipedia.org/wiki/King%E2%80%93Byng_Affair

Offline SirJohn

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Re: Constitution of Canada
« Reply #26 on: September 08, 2017, 03:50:59 pm »
Nobody knows.  What's missing from that is that the PM alone can't submit a law for signing.  There's no equivalent of the 'executive order'.  So the whole governing party and senate would also have to 'go bonkers'.

There's no requirement that he sign anything. It's just convention. If the PM went bonkers he'd simply refuse, unless he was the PMs lackey. The Australian GG essentially fired the Australian government in 1975 and appointed the opposition leader as PM.
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Offline segnosaur

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Re: Constitution of Canada
« Reply #27 on: September 11, 2017, 12:02:45 pm »
Nobody knows.  What's missing from that is that the PM alone can't submit a law for signing.  There's no equivalent of the 'executive order'.  So the whole governing party and senate would also have to 'go bonkers'.
Actually we have something similar... an Order in Council.

Its kind of like an 'executive order' in the fact that it doesn't have to go through parliament for approval. It doesn't have the same legislative force that a Bill would have, and it can't be used for all things.

http://canadaonline.about.com/cs/cabinet/g/orderincouncil.htm

Online Michael Hardner

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Re: Constitution of Canada
« Reply #28 on: September 11, 2017, 12:04:32 pm »
Well, well.  Here's me learning again !  Thanks, Seg.

Offline Super Colin Blow

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Re: Constitution of Canada
« Reply #29 on: September 13, 2017, 01:26:08 pm »
From what I've learned here, the constitution seems to give--even though by convention--a hell of a lot of power to your leader (the real leader, the PM).  The American government, by contrast is--believe it or not--more collegial.
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