Kara Sears
Canada's legislative process involves all three parts of Parliament: the House of Commons, the Senate, and the Monarch. The period between the end of World War II and the signing of the Canadian Charter of Rights and Freedoms in 1982 is often referred to as the Rights Revolution in Canada, during which awareness of and support for human rights increased. The Canadian Bill of Rights, enacted in 1960, was groundbreaking but limited in scope, only applying to federal laws and government actions. The 1982 Charter of Rights and Freedoms elevated fundamental rights and freedoms to constitutionally-protected interests, capable of being enforced by applications to the courts. The Charter includes freedom of expression and religion, the right to a democratic government, the right to live and work anywhere in Canada, the right to equality, and the right to use Canada's official languages. During the post-war period, Canada also experienced significant immigration, with refugees from Europe seeking refuge from the devastation of the war, as well as Cold War migrations from Soviet-bloc countries. Canada's gun control laws also underwent changes during this period, with universal firearm registration facing widespread non-compliance and rejection from successive governments and law enforcement agencies.
| Characteristics | Values |
|---|---|
| Canada's legislative process | Involves three parts of Parliament: the House of Commons, the Senate, and the Monarch |
| Founding document | British North America Act (now, The Constitution Act, 1867) |
| Division of powers | Between the national Parliament and the provincial legislatures |
| Legal ties to Britain | Severed in 1982, resulting in Canadian independence |
| Canadian Charter of Rights and Freedoms | Included in the 1982 Charter, elevating fundamental rights and freedoms to constitutionally-protected interests |
| Indigenous customs and traditions | Contributed to alternative approaches to justice, such as restorative justice |
| Equality rights | Recognition and enforcement of the rights of minority and disadvantaged groups |
| Language rights | Reinforcement of the rights of official language minorities |
| Criminal matters | Clarification of the state's powers regarding the rights of the accused |
| Trial rights | Right to a fair trial within a reasonable time, as outlined in subsection 24(2) |
| Evidence | Improperly obtained evidence may be excluded if it would diminish public confidence in the justice system |
| Sentencing | Proportionality between the sentence and the seriousness of the crime, prohibiting cruel and unusual punishment |
| Witness protection | Witnesses are protected from self-incrimination and cannot have their testimony used against them in other proceedings |
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What You'll Learn
The Supreme Court Act
Canada’s legislative process involves all three parts of Parliament: the House of Commons, the Senate, and the Monarch. These three parts work together to create new laws. Proposed policies are developed by the Government and presented to the Cabinet for approval to draft a new bill. The Cabinet is the Prime Minister’s forum for creating consensus among the Government Ministers. A bill is a text of a legislative initiative that the Government submits to Parliament to be approved and possibly amended before becoming law.
The process of creating new laws and regulations in Canada involves several steps. Once a proposed policy is approved by the Cabinet, the Department of Justice drafts a bill in collaboration with the relevant government department's or agency's policy development and legal services teams. The bill is then introduced in either the House of Commons or the Senate for debate, amendment, and approval. After a bill is passed by one chamber, it is sent to the other chamber for further consideration and approval. If amendments are made, the bill goes back to the first chamber for approval of the amendments.
Once a bill is passed by both chambers of Parliament, it is presented to the Monarch, represented by the Governor General in Canada, for royal assent. The Governor General, on the advice of the federal Cabinet, can also bring laws into force by proclaiming a specific day or days on which the law will take effect. Regulations provide support to new laws and are enforceable by law. They are developed through a separate process from Acts and are made by persons or bodies authorized by Parliament, such as the Governor in Council or a Minister.
The approved draft regulations are published in the Canada Gazette, allowing Canadians to provide comments and feedback. These comments are considered, and the draft regulations are updated and finalized. The Minister or the Governor in Council, on the Treasury Board's advice, reviews and approves the final regulations. The regulations come into force once the Minister or the Governor General signs the respective orders.
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The Judicial Committee
In 1875, when the Supreme Court of Canada was established, Justice Minister Edward Blake attempted to abolish appeals to the Judicial Committee. However, this attempt was unsuccessful, and appeals from Canada to the Judicial Committee continued. In 1933, the Parliament of Canada abolished appeals to the Judicial Committee in criminal cases, and in 1947, the Committee ruled that the Parliament of Canada could abolish appeals in civil cases. Finally, in 1949, an amendment to the Supreme Court Act transferred jurisdiction over appeals to the Supreme Court of Canada, making it Canada's ultimate judicial decision-maker.
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The Canadian Charter of Rights and Freedoms
The Charter includes the right to equality, democracy, and mobility, as well as freedom of conscience, religion, and peaceful assembly. It also protects the right to freedom of speech and the press, the right to travel, due process, privacy, the right to an attorney, and a speedy trial in criminal cases. The right to vote and the right to enter, remain in, and leave Canada are exclusive to Canadian citizens.
The rights and freedoms in the Charter are not absolute and can be limited by law to protect other rights or important national values. For example, freedom of expression may be restricted by laws against hate propaganda or child pornography. Any person whose rights or freedoms have been infringed or denied under the Charter may apply to a court for a remedy.
The Charter has been a source of change and progress in Canadian society, such as reinforcing the rights of official language minorities and recognizing the rights of minority and disadvantaged groups. It is also interpreted in a way that preserves and enhances the multicultural heritage of Canadians, including the rights of Indigenous peoples.
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The British North America Act
The BNA Act established a federal dominion with a constitution similar to that of the United Kingdom. It outlined the framework for the Canadian government, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. The executive power was vested in Queen Victoria and her successors, resulting in a parliamentary and cabinet government. The Act provided for a Supreme Court of Canada and outlined the allocation of powers between the federal and provincial governments.
The BNA Act gave the federal legislature the power to legislate for "the peace, order and good government of Canada." It listed 29 subjects of exclusive federal jurisdiction, including criminal law, while civil law was left to the provinces. The federal government was granted the right to disallow any provincial act within two years of its passage, and it had overriding powers compared to the provinces. However, judicial interpretation by the Judicial Committee of the imperial Privy Council reduced the powers of the federal government over time and increased those of the provinces.
The Act also made provisions for the division of the province of Canada into the provinces of Quebec and Ontario, with each province given its own constitution. Electoral districts were established, with each district entitled to elect one member to the House of Commons. The Act specified voting qualifications, such as in the district of Algoma, where every male British subject aged 21 or older who was a householder was granted the right to vote.
The BNA Act was amended over time, with the 1871 Act giving Canada the power to establish new provinces and territories and change provincial boundaries with the affected province's consent. The British North America (No. 2) Act of 1949 allowed the Parliament of Canada to make limited constitutional amendments. However, full Canadian control over the constitution was only achieved with the passage of the Canada Act in 1982, which also led to the renaming of the BNA Act to the Constitution Act, 1982.
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The Statute of Westminster
The Statute also clarified the powers of Canada's Parliament and those of the other Dominions. Before 1931, the British government had certain ill-defined powers over legislation passed by the Commonwealth Dominions (Canada, Australia, New Zealand, South Africa, the Irish Free State, and Newfoundland). The restrictive clause, section 7, which applied to Canada, stated that the Act did not apply to the repeal, amendment, or alteration of the British North America Acts, 1867 to 1930. This meant that the power to amend the Canadian Constitution remained with the Parliament of the United Kingdom.
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Frequently asked questions
After the Second World War, Canada experienced a Rights Revolution. During this period, there was a growing awareness of and support for human rights. Grassroots activism by women, queer communities, Indigenous peoples, and disability activists led to the passing of laws that prohibited discrimination and protected human rights. The first law to protect human rights at the federal level, the Canadian Bill of Rights, was introduced in 1960.
The Canadian Bill of Rights was groundbreaking, but it had limitations. It only applied to federal laws and government actions. The bill was passed by Parliament like any other statute and was considered "ordinary" legislation.
The Canadian Charter of Rights and Freedoms, established in 1982, elevated fundamental rights and freedoms to the status of constitutionally protected interests. Unlike the Bill of Rights, the Charter covered both provincial and federal laws and actions. It included freedom of expression and religion, the right to a democratic government, the right to live and work anywhere in Canada, the legal rights of people accused of crimes, the right to equality, the right to use Canada's official languages, and the right of French or English minorities to an education in their language.
Canada's legislative process involves all three parts of Parliament: the House of Commons, the Senate, and the Monarch (represented by the Governor General). Proposed policies are developed by the Government and presented to Cabinet for approval to draft a new bill. The bill is then introduced in either the House of Commons or the Senate. After approval, the bill is published in the Canada Gazette, allowing Canadians to provide comments and feedback. The Minister or the Governor in Council then reviews and approves the final regulations.
