How Canadians Govern Themselves - Parlement du Canada

How Canadians Govern ThemselvesA Federal State18provincial laws can now be challenged,and thrown out by the courts, on thegrounds that they violate the Charter.This is something with which theAmericans, with their Bill of Rightsentrenched in their constitution, havebeen familiar for over 200 years. For us,it was almost completely new.Plainly, this enormously widens thejurisdiction of the courts. Before theCharter, Parliament and the provinciallegislatures, “within the limits ofsubject and area” prescribed by theConstitution Act, 1867, enjoyed “authorityas plenary and as ample as the ImperialParliament in the plenitude of itspower possessed and could bestow.” Inother words, within those limits,they could do anything. They weresovereign. The Charter ends that. Itimposes new limits.Section 1 of the Charter itself providessome leeway for Parliament and thelegislatures. It says that the rights theCharter guarantees are “subject only tosuch reasonable limits prescribed bylaw as can be demonstrably justified in afree and democratic society.” The courtsdecide the meaning of “reasonable” and“demonstrably justified” and “a free anddemocratic society.” Their decisionshave restricted how Parliament and thelegislatures may use the powers theyhad before the Charter came into effect,and the jurisprudence is still evolving.The Charter also contains a provisionthat Parliament, or a provinciallegislature, can override some importantparts of the Charter by inserting in anAct that would otherwise violate thoseprovisions, a plain declaration that theAct shall operate “notwithstanding”the Charter. Such an Act is limited tofive years, but can be extended forrenewed periods of five years. Thisallows a partial restoration of thesovereignty of Parliament and theprovincial legislatures, but has seldombeen used because of the politicalconsequences.4The fourth big change made bythe Constitution Act, 1982, gives theprovinces wide powers over theirnatural resources. Each province isnow able to control the export, to anyother part of Canada, of the primaryproduction from its mines, oil wells,gas wells, forests and electric powerplants, provided it does not discriminateagainst other parts of Canada inprices or supplies. But the nationalParliament is still able to legislate onthese matters, and if provincial andfederal laws conflict, the federal willprevail. The provinces are also able tolevy indirect taxes on their mines, oilwells, gas wells, forests and electricpower plants and primary productionfrom these sources. But such taxes mustbe the same for products exported toother parts of Canada and products notso exported.These four big changes, especially theamending formulas and the Charter,are immensely important. But they leavethe main structure of government, andalmost the whole of the division ofpowers between the national Parliamentand the provincial legislatures, justwhat they were before.Incidentally, they leave the provinciallegislatures their power to confiscate