Canada's Constitution is Weird

hello friends today we are going to talk about the constitution of Canada one of the weirdest and in some ways most upsetting constitutions in the Western world so a couple of weeks ago I made a video on how impeachment works in different countries of the world and during the course of that I learned that a lot of countries have relatively short and compact constitutions often the government even makes a version of the Constitution that you can buy as a little book with a nice cover and everything a thin little book full of the nation's highest laws that you can keep on your shelf or even keep in your pocket if you're one of those Tea Party guys yeah so Canada's Constitution is not like this the Canadian Constitution is so long it would almost certainly fill multiple binders and I say multiple because we don't even really know exactly how many because and get ready for this no one even knows exactly how long the Canadian Constitution is nobody really knows exactly what's in it and what's not so to understand why this is you have to know a little bit to boot the history of Canada get a load of this from a strictly legal perspective Canada remained a colony of Great Britain until 1982 now I realize that this will sound wrong to a lot of people obviously Canada has been a fully self-governing democratic country for over a hundred years depending on how you want to measure it the British more or less stopped running Canada in any meaningful way sometime in the mid 1800s but the government of Great Britain still remained the highest legal authority over Canada until nineteen eighty two flashback to 1867 the four leading colonies of what was in those days known as British North America got together and decided on a new political system to govern themselves people have called what they came up with by different names over the years like the Dominion of Canada or the Union of Canada or the Confederation of Canada but basically it is the same political system that Canada is still using to this day this agreement was then ratified by the British Parliament by a piece of legislation known as the British North America Act which took effect on July 1st 1867 and the British North America Act spelled out how this new union of Canada would work we won't get into all of the details now but basically the British North America Act said that the four colonies now known as the four provinces of Canada would be governed by a single Canadian Parliament but they would also keep their own individual governments and there would be power sharing between the Canadian national government and the four provincial governments but more importantly for what we are talking about the new Canadian Union continued to recognize the authority of the British government Canadians often think of the year 1867 as the year that Canada became a country and in many respects it was but it was certainly not the year that Canada became independent as I said by the mid 1800s the Canadian governments had gained control over most of the day-to-day things that mattered to Canadians but the British government retained the power to control fundamental issues relating to the nature of Canada itself for example any expansion of Canada's borders had to be authorized by Great Britain and Britain passed a bunch of such authorizations throughout the 19th and early 20th century as Canada annex new territories in North America and whenever there was some substantial structural change made to the Canadian political system Britain would have to pass a law approving that too so for example in 1915 when the Canadian Senate expanded from 72 to 96 seats Britain had to approve that listen to this well into the 1960s and 70s Britain was still passing laws changing things about the Canadian political system in 1960 for instance the British government of Prime Minister Harold Macmillan passed a law ending lifetime tenure for Canadian judges or how about in 1975 when Canada's vast Northwest Territories were given a second seat in parliament thanks to a law passed by the British government of Prime Minister Harold Wilson now of course Britain was not coming up with these ideas themselves by this point they were just blindly rubber-stamping whatever random thing the Government of Canada asked for but it was still a weirdly embarrassing situation for Canada to be in just the same a supposedly modern first world developed democracy that was still having to constantly run to its former colonial master for favors so in 1982 the governments of Canadian Prime Minister Pierre Elliott Trudeau and British Prime Minister Margaret Thatcher worked out a deal in which Britain agreed to formally transfer the power to change the Canadian political system over to Canada after months of negotiation it all culminated in a big ceremony in Ottawa with Queen Elizabeth on April 17th 1982 the day Canada finally became completely utterly 100% politically independent from Great Britain something people in both countries thought was long overdue the system they worked out was that all of the major laws that Britain had passed over the years affecting Canada in some way would now be compiled together and become a new Canadian Constitution I have proclaimed this new constitution one that is truly Canadian at last the old British North America Act was renamed the Constitution Act 1867 since it laid the foundations of the modern Canadian political system with the Parliament and the provinces and all of that it is regarded as the main part of the new Canadian Constitution but there is also a big appendix at the end featuring all of the other laws that Britain had passed aboot Canada between 1867 and 1982 these were all declared part of the Canadian Constitution as well now this unto itself made the Canadian Constitution a very long and very confusing document it is comprised of over 30 British colonial statutes that don't really fit together very nicely and are full of all sorts of dated old-fashioned language that can make it quite hard to understand in the modern context but from here things only get more complicated before you see at the same time that Britain surrendered control over the Canadian political system the Trudeau administration working with the provincial governments got the British Parliament to one final piece of legislation for Canada it was known as the Constitution Act 1982 most Canadians will know the Constitution Act 1982 as the part that contains the Canadian Charter of Rights and Freedoms the Charter of Rights and Freedoms was a very bold change to the Canadian political system probably one of the most consequential changes in all of Canadian history it articulated a list of the fundamental human rights of all Canadians and said that no government could ever pass a law that violated any of them this included the right to free speech freedom of religion the right to a fair trial that sort of thing the Charter of Rights and Freedoms now forms the cornerstone of Canadian human rights law the government produces this snazzy coffee you often find hanging in city halls or whatever now I know what you are thinking you are thinking this sounds an awful lot like the Bill of Rights in the US well not quite but we will get back to that in a sec anyway the Constitution Act 1982 also contained a brand-new amending formula explaining how the Canadian Constitution could be changed in the future seeing as how the old system of just asking Britain had been abolished and my god is the new system ever complicated so essentially the criteria changes depending on what exactly you want to change so if the Canadian government wants to change something that affects one or more but not all provinces then that change has to be approved by the national Parliament of Canada as well as the government of whatever province is being affected there have been several amendments made to Canada's constitutional documents in this way since 1982 an example I think most Canadians might be familiar with was a constitutional amendment that was passed in 2001 that changed the name of the province of Newfoundland to the province of Newfoundland and Labrador since that obviously only affected one province that required using this limited one but not all amending formula alright does this all make sense so far now a different formula kicks in if you want to make a change that affects any of the following things the principle that a provinces number of seats in the national parliament should correlate with its population anything to do with the Canadian Senate the basic regulation of the Supreme Court of Canada the powers of the provinces and the federal government in general or if the government wants to alter the borders of Canada's northern territories or create a new province in any of these cases a constitutional amendment must be approved by the Parliament of Canada as well as the governments of at least 7 of Canada's ten provinces representing at least 50% of the population of all of the provinces what this means in practice is that any constitutional amendment has to be passed with the approval of one of Canada's two biggest provinces Ontario and Quebec because if both Quebec and Ontario object it is simply mathematically impossible to get enough provinces together that represent more than 50% of the Canadian population that is how lopsided the population balances among the provinces check this on for size in 1997 a Prime Minister Jean chrétien passed a law saying that the seven approving provinces must in fact include Ontario and Quebec as well as British Columbia and at least two of the three prairie provinces and at least two of the four Atlantic provinces at this point you're basically asking for unanimous consent a lot of people will argue this law is grossly unconstitutional but for the time being Ottawa is still playing along with it and one of the reasons they're still playing along with it is because there is this whole other part of the constitution that already demands unanimous provincial consent for big changes I am referring to section 41 of the 1982 Constitution Act in my opinion it is perhaps the single worst Clause and the entire thing since it really tries hard to permanently lock in some of the most regressive aspects of the Canadian political system it says every single provincial government must agree if you want to pass a constitutional amendment that affects any of the following things in any way the weird rule that says no province can have fewer seats in parliament than it currently has in the Senate which currently results in over representation for some of the smaller provinces any of canada's royal figurehead positions like the status of the British monarch in Canada or the governor-general the composition of the Supreme Court which is generally taken to mean the fact that three of the nine judges are always Quebecers official French English bilingualism and the Constitutional amending formula itself this is one of the really weird things about the Canadian Constitution the way it tries to protect certain concepts within the Canadian political system from being changed this is the reason I said no one really knows how long the Canadian Constitution is since the constitutional amending formula protects concepts the exact number of laws in Canada that have constitutional status is kind of unknowable so here is an example the Supreme Court of Canada is mostly regulated by the Supreme Court of Canada Act which was an ordinary law passed by the Canadian Parliament many decades ago but since the Constitutional amending formula says that you cannot change the Supreme Court of Canada without first passing a constitutional amendment this means that the Supreme Court of Canada Act is basically part of the Constitution to the Supreme Court of Canada itself actually issued a ruling in 2014 saying that it could not be altered without first passing a constitutional amendment kind of a conflict of interest there but what are you gonna do there are a lot of other ordinary laws in Canada that deal with things like the powers of the monarchy or the relationship between the federal and provincial governments that could probably be retroactive Lee declared part of the Canadian Constitution to using this same sort of logic this whole business of elevating some laws beyond the government's ability to change them is sometimes called initial supremacy in contrast to elementary supremacy which is to say in the old days the Parliament of either Canada or Britain could pass any sort of law anything it wanted but today those laws have to be evaluated by the judiciary to see if they're in sync with the Constitution or not now as you can see the Canadian Constitution really goes out of its way to ensure that certain institutions of the Canadian political system are not modified in any way but it doesn't offer any comparable protections for Human Rights why is it so hard to go after the jobs of the Royal figureheads but not a freedom of the press well hold on to your hats because I'm afraid it is even worse than it sounds section 33 of the Constitution Act 1982 says that the government is in fact allowed to pass laws that violate basic human rights the rights supposedly protected by the Grand Charter of Rights and Freedoms so long as these laws are revisited every five years section 33 is better known to Canadians as the notwithstanding Clause here are the only exceptions to using the notwithstanding Clause you are not allowed to pass laws that violate voting rights mobility rights or the various language rights you gain through Canada's official French English bilingualism regime that's it in other words if I become Prime Minister of Canada someday and God willing I will it would be easier for me to pass a law banning all newspapers than for me to cut funding to some French school in Vancouver it would also be easier for me to legalize torture than change the number of judges on the Supreme Court so yes I would say the Canadian Constitution has some rather strange priorities you're probably wondering if any crazy stuff has ever happened in Canada as a result of the country's strange Constitution the answer is mostly no which is good Quebec has used a notwithstanding Clause to pass some laws that openly violate freedom of expression in order to make the use of French mandatory in some public places more recently they've also used it to outlaw the wearing of religious clothing for some government employees but for the most part passing brazenly anti charter laws has not really happened there's the sense doing so violates basic democratic norms and decencies even if it's technically allowed Canadian courts for laws for violating the Charter of Rights and Freedoms all the time and even though the government could easily weasel around this by using the notwithstanding Clause for the most part they don't it probably won't surprise you to learn that there hasn't been too many constitutional amendments passed using this whole thing either there was a constitutional amendment passed in 1983 that affirmed the government of Canada's obligation to protect the rights of the indigenous peoples of Canada but that's it every other to tional amendment has just been some minor thing that only affects one province so let me know what you think do you think Canada's Constitution sounds kind of lousy what other country or place has a really weird Constitution let me know in the comments below give this video a like if you enjoyed it and I will see you all next week [Music]

Channel: J.J. McCullough

Views: 387,329

Keywords: canadian history, 1982, 1867, British North America Act, Ontario, Quebec, BNA Act, Constitution Act, Canadian independence, how did Canada, history of Canada, Amending formula, Notwithstanding Clause

Id: cG_-r3xHvzk

Length: 16min 2sec (962 seconds)

Published: Sat Jan 04 2020