Volume 25, Number 1, 1984 La Loi constitutionnelle de 1982 : un premier bilan

EN:

April 17, 1982, will be one of the most important dates in the history of Canadian federalism. On that date, the Canada Bill, voted several days before by the Parliament of Westminster became the Constitution Act, 1982: the Canadian Constitution had been patriated. This article gives the history of this patriation from the beginning of the talks on this subject after the first World War of 1914-18 to the unfinished constitutional compromise of 1982.

EN:

The author seeks to identify the different guarantees provided by the principle of fundamental justice under article 7 of the Canadian Charter of Rights and Freedoms as interpreted by the Courts. The importance of such guarantees varies depending on whether the Courts limit the application of the principle to procedural matters or consider them to be of wider application.

EN:

This article deals with the rights of the Aboriginal Peoples of Canada recently recognized in the Constitution Act, 1982. It provides a brief analysis of the nature and scope of these rights and their historical context by reference to some of the principal cases on Indian title.

There is a short treatment of section 91(24) of the Constitution Act, 1867, and finally a summary of the 1983 Constitutional Accord on Aboriginal Rights and the amendments to the Constitution of Canada contemplated by the Accord.

EN:

The rights of aboriginal peoples may vary from one part of the country to the other. This stems from the origin of Canada, its history, its Imperial and the Constitutional Statutes which have determined the territorial evolution of Canada. The terms of the Quebec Act seem to limit the hunting territories of the Indians to that part of Quebec which was not a part of the Colony in 1763. While a federal law extinguished all aboriginal rights in the territory covered by the James Bay agreements, the amendment of 16 March 1983 may have, for Quebec, important legal consequences in that these agreements may be held to be treaties.

FR:

L'auteur évalue l'opération de rapatriement de la Constitution du Canada entreprise de 1980 à 1982. Il juge qu'elle fut un exercice imparfait ou, du moins, incomplet. Il se demande si la phase deux de l'élaboration de la Constitution se concrétisera.

EN:

« In this article the author envisages and studies the reform of the Senate, of the House of Commons and of the Supreme Court of Canada ; the function of the Governor General is also considered. A suggestion is made for introducing a system of mitigated proportional representation in the House of Commons, as proposed by the Pepin-Robarts report of January 1979. The authors analyses the advantages and disadvantages of an elected Senate, of a Senate whose members are appointed by the federal government or by the federal and provincial governments, of a second House which would constitute a House of the Provinces ; the author is aganist an equal representation of the provinces in the Senate. Professor Beaudoin favours a specialized constitutional Court of Canada, although he considers that such a reform is very unlikely to happen ; however, he adds that in any case, the Supreme Court is de facto a constitutional court to a certain extent. He recommends that the principle of dualism be more visible. Finally, the author describes how the function of Governor General has evolved since 1926, and outlines the role that the Governor General may play in normal and anormal times. »

EN:

The proposed reform of the Senate has not originated from widespread public demand but from the determination of Prime Minister Trudeau to proceed with the revision of the Canadian Constitution without further delay. In view of the refusal of the government of Quebec to sign and recognize the Constitution Act, one may question the advisability of such a move. The author proposes that before proceeding to a reform of the Senate, one should amend the constitutional revision procedure adopted in 1982 so as to recognize more fully the Canadian duality and to modify the amending formula in a way more satisfactory to Quebec. As to the Senate reform itself, a mechanism for the election of Senators is proposed, as well as two principles of a « double majority » : a first constituted of French-speaking and English-speaking Senators for a better protection of the French language, and a second made up of the Senators from Quebec and from the other provinces to deal with matters of education, culture, social affairs, communications and immigration.

EN:

It is generally recognized that the Canadian Senate has fared better in revising legislation than in representing regional interests. Any attempt to modify the Senate's role must take this fact into consideration. The author does precisely that in proposing that the seats should be realloted taking into account regional disparities, that Senators should be nominated by the provinces and, finally, that the Senate's powers should be reduced at a political level but increased to ensure proper representation of regional interests.

EN:

The object of this study is to ascertain the power of the federal and the provincial governments to legislate concerning language in Canada.

After a study of the ancillary doctrine as the constitutional basis for the exercise of this power by either level of government, the author studied the constitutional restrictions on its use, and determined the following restrictions :

1. For the federal government and the government of the province of Quebec, only : section 133 of the Constitution Act, 1867 which is also an entrenched provision providing minimum rights.

2. For the province of Manitoba only : section 23 of the Manitoba Act, 1870 which is also an entrenched provision providing minimum rights.

3. For the province of New-Brunswick, only : sections 16(2), 17(2), 18(2), 19(2) and 20(2) of the Constitution Act, 1982.

4. For all provinces, subject to the present inapplicability of section 23(1) a) of the new charter concerning the province of Quebec : section 23 of the Constitution Act, 1982.

5. For all provinces and for the federal government : section 16(3) of the Constitution Act, 1982, section 15(1) which recognizes the right to equality, and 2b) which recognizes the freedom of expression.

Finally the author studied the implications of the reasonable limits' provision outlined in section 1 of the new charter, this constituting the only means for our governments to avoid the application of the charter to their legislation.