Constitution 150 http://www.constitution150.ca Confederation - Patriation - Reconciliation Fri, 12 May 2017 21:11:58 +0000 en-US hourly 1 ForceRouge0.9.85 <![CDATA[Consensus Government in the Northwest Territories, Canada]]> http://www.constitution150.ca/publications/consensus-government-in-the-northwest-territories-canada-a-parliamentary-panacea/ http://www.constitution150.ca/publications/consensus-government-in-the-northwest-territories-canada-a-parliamentary-panacea/#respond Fri, 12 May 2017 20:20:47 +0000 http://constitution150.openum.ca/?post_type=publication&p=766 http://www.constitution150.ca/publications/consensus-government-in-the-northwest-territories-canada-a-parliamentary-panacea/feed/ 0 <![CDATA[Call for posters]]> http://www.constitution150.ca/2017/02/15/call-for-posters/ http://www.constitution150.ca/2017/02/15/call-for-posters/#respond Wed, 15 Feb 2017 18:44:22 +0000 http://constitution150.openum.ca/?p=644 Call for Posters

Taking place within walking distance of where the Charter of Rights and Freedoms was proclaimed 35 years ago, the University of Ottawa’s Public Law Group will host the conference,  The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032 on March 8-10, 2017.

Our conference will bring together leading constitutional scholars, as well as community leaders and policy makers to discuss and examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years. The conference will begin on the evening of Wednesday, March 8, 2017 with a “Dragon’s Den” style Charter Pitch.  There will be a reception at the Supreme Court of Canada on the evening of Thursday, March 9, 2017.

Proposals for posters are now invited. We seek contributions on a range of topics related to the future of constitutional rights under the Charter. Possible subjects include: The Charter and the Environment; The Charter and Health; The Charter and Globalization; The Charter and Indigenous Peoples/Aboriginal Rights; The Charter and Young Persons; Social and Economic Rights; and the Future for Fundamental Freedoms.

If you would like to propose a poster, please submit a working title and an abstract (of no more than 150 words).  Proposals from a range of disciplinary perspectives including law, public policy, history, Canadian studies, Indigenous studies, political science, sociology, and related disciplines are encouraged.

Proposals should be emailed to [email protected] by February 22, 2017. Note that applications for funding are pending and presenters may be required to pay their own travel and accommodation expenses.   Those selected will be notified by February 24, 2017. For more information about creating a poster, see: http://guides.nyu.edu/posters Questions should be submitted[email protected].

For more information visit www.Constitution150.ca.

      www.canadianmosaic.ca

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<![CDATA[Challenging the idea of Canada’s Constitutional Identity]]> http://www.constitution150.ca/2017/02/03/challenging-the-idea-of-canadas-constitutional-identity/ http://www.constitution150.ca/2017/02/03/challenging-the-idea-of-canadas-constitutional-identity/#respond Fri, 03 Feb 2017 16:00:41 +0000 http://constitution150.openum.ca/?p=598 Challenging the idea of Canada’s Constitutional Identity: Questioning How 18th Century Taxation Legislation became the Canadian Identity

By Christopher Lamm

When discussing the constitutional creation of Canada, there’s one picture that usually jumps to the mind of historians: the 1864 Charlottetown Conference portrait of our Fathers of Confederation. If you don’t know what I’m referring to, type “Fathers of Canadian Confederation” into google images now and it’s the first one you’ll see (https://www.google.ca/search?q=fathers+of+canadian+confederation&es). That infamous, grainy, black and white photo of our intrepid founders standing in the morning sun you’ve seen dozens of times in your high school civics course has become a symbolic representation of Canada’s origins. We are a nation born from parliamentary temperance, loyalty to our Queen, political compromise and a principled document of good governance that we call our constitution…or so the narrative goes anyway.

Online, amateur historians have taken to discussing the real, uncensored, often liquor-soaked, background to Canada’s founding (https://www.reddit.com/r/canada/comments/1teahc/iff_canadian_fathers_of_confederation/). It’s a fun piece of trivia to know that our then-future prime minister John A. Macdonald would belt out lines that would awe Winston Churchill, like: “Yes, but the people prefer John A. drunk to George Brown sober” in reference to his colleague’s criticism of our future prime minister’s frequent drunkenness during parliamentary sessions (http://hazlitt.net/blog/drunk-history-canadas-booze-soaked-beginnings).

 

I like thinking about our founding fathers this way: drunk, snippy and incredibly human. The constitution comes alive for me as I imagine what went on inside our founding father’s heads as they drafted the defining document of our country. Mr. Macdonald stops being a portrait on my lunch money but becomes my friend’s funny grandfather. Go back to that Father’s of confederation photo now and take a deep look at Mr. Macdonald’s face and you’ll see the drooped eyes of a man in the throes of a legendary hangover. The second most famous portrait of our founding fathers (http://www.craigmarlatt.com/canada/images/history&people/fathers_lg.j) had to be completed in pieces through individual paint sessions because the members of Parliament could never quite manage to all be sober enough to congregate in one room for very long without imbibing multiple bottles of wine and ruining the poor painter’s attempts to keep them still.

 

However, as fun as this narrative is, it brings up an interesting reality about constitutional democracies – the strongest laws of our land were written by flawed human beings from another era with entirely different concerns than our own.

 

What would one day become The British North American Act, 1867 (BNA) was first an idea about representative taxation. Upper Canada, (now Ontario) which had ¾ of the population was, by a trick of the law, granted less than half the seats of the parliament of Upper and Lower Canada (now Quebec). To quote parliamentarian George Brown: “Immense sums of public money have been systematically taken from the public chest for local purposes of Lower Canada, in which the people of Upper Canada have no interest whatsoever, though compelled to contribute three-fourths of the cash” (http://www.huffingtonpost.ca/mark-milke/canada-constitution_b_3518066). The purpose of the constitution was simple: a federal government for national issues would be separated by a provincial government for local issues. To quote Brown again: “if our friends in Lower Canada choose to be extravagant, they will have to bear the burden of it themselves” (http://www.huffingtonpost.ca/mark-milke/canada-constitution_b_3518066).

 

This is why it can sometimes feel like Canada’s legislature and judicial systems are dealing with constitutional issues every other day. The constitution was never drafted to deal with the challenges of a post-industrial Canada. Mr. Macdonald didn’t consider international environmental treaties when he left nearly unqualified control of natural resources to the provinces.

 

Although there have been over 40 amendments to the constitution, its basic foundations, like the division of powers through sections 91 and 92, remain virtually the same as when they were drafted in 1867. Hundreds of changes through judicial interpretation are, arguably, the only things that keeps the constitution relevant to Canada’s needs as they now stand.

 

So, the questions now are, how did a confederation founded for taxation purposes, designed by men in 1867 get us to Canada in 2017 (the literal-minded may appreciate:http://www.lop.parl.gc.ca/parlinfo/compilations/Constitution/ConstitutionSincePatriation.aspx)? Why is our constitution held in such reverence by the Canadian population that discussions about amending it usually lead to an outed government (http://www.thecanadianencyclopedia.ca/en/article/meech-lake-accord/)? If there is some ethereal chain that connects Canadians A Mari Usque Ad Mare (https://www.google.ca/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=ad mare usque ad mare), why would it come from a document drafted before we’d touched the seas with our railroad?

 

I want to highlight the “how and the why”’s that make our constitution so confusing and disjointed at times. The document was not designed to deal with Canada’s future international commitments and obligations but we act as though it can. I don’t think there’s a perfect cure to the passage of time on constitutional legislation but I think it bears discussing that it’s what came about as a side effect of separate interests. The constitution is a landmark of where we were 150 years ago. That information should encourage us to reflect and change, not cling to a document representative of past ideals.

 

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By Hassan Rasmi

Ottawa is celebrating Canada’s 150th anniversary of Confederation. Objectively, we will be celebrating the success of one of the world’s greatest countries. In fact, several ranking systems hail us as being the second best country in the world; the world’s most admirable and reputable nation; and even the friendliest Twitter population. Few countries compare. But what exactly is it about Canada that makes it as great as regarded? This paper examines, from a constitutional and personal lens, one of the principal reasons for that greatness: immigration. Indigenous groups and centuries of immigrant cultures have all formed what we, today, call Canada—our combined success in building this country is what makes this topic important. But it is equally important that we celebrate those cultures while concurrently celebrating the constitutional tool enabling their residence here in the first place.

In 1867, the Government passed the first legislative tool governing immigration: the Immigration Act. At the time, very few restrictions existed, and legislators regarded immigrants as an important economic strategy. Unfortunately, this “open-door” approach was not sustained for long, and our laws shifted towards intense discriminatory practices during, and immediately following, the world wars. However, in 1962, the government virtually eliminated racial discrimination from its legislation and later introduced a Points System that considered a number of qualities, such as whether the subject knew English or French. But that System was still far from perfect, and visa officers screened immigrants based on an entirely arbitrary “personal suitability” practice that eventually clogged the Federal Court with appeals.

Today, immigration is primarily governed by the Immigration and Refugee Protection Act (“IRPA”). Under IRPA’s section 34(1), an immigrant can be denied entry into Canada if they have, for example, committed a crime. One primary issue with this provision is manifested in section 34(1)(f), which denies admission to any person who has supported an organization that engages or will engage in acts of terrorism or subversion.

Section 34(1)(f) allows the Federal government to deny entry to almost anyone coming from a conflict-ridden part of the world. Consider the following: an elderly woman who stitched uniforms for armed rebels in Haile Mengistu’s Ethiopia; a man who acted as an informal contact for foreign journalists seeking interviews with anti-government guerillas in El Salvador; or, a man who was simply a member of the anti-apartheid African National Congress. The first two people faced deportation under section 34(1)(f)’s sweeping and excessive powers, despite being law-abiding citizens, giving service to our country, and never engaging in a single act of political violence. The third person is Nelson Mandela, who, as The Star cleverly put it, would have also likely been denied residence in Canada.

There are many problems with section 34. First, this provision potentially violates our Charter right to equality under section 15, and our right to life, liberty, and security of the person under section 7. Second, the application of section 34(1)(f) takes us back to discriminatory times when immigrants were denied entry based on the subjective judgment of a few autocratic bureaucrats. Third, this provision would be even more difficult to apply to hybrid groups. Specifically, what about individuals who are Canadian by descent, but who have grown up in a conflict-ridden part of the world and who came here at a later point in their lives? In other words, what about people like me, who I call “quasi-immigrants”? For the sake of conciseness, I will only focus on this third problem.

Legally, when I moved to Canada, I was a Canadian citizen. Realistically, I was an immigrant; for example, I had grown up elsewhere and I did not know anyone in my adoptive city of Toronto. In fact, I came here immediately following the Egyptian revolution, and had participated in demonstrations against the Mubarak government. Should I, then, be stripped of my Canadian citizenship for chanting “bread, freedom, and social equality”? Or would I be at an advantage for having been born to a Canadian parent? Regardless, what is concerning is that, in the strictest interpretation of the section, I am a quasi-immigrant who participated in anti-government demonstrations. I was not being subversive; I was exercising my right to free speech.

Immigrants coming from conflict-heavy areas seldom choose the groups they fall into. They do not choose to be born into political instability, they often cannot escape it, and they simply support what they believe is right. Their fate cannot be grounds for sweeping acts of discrimination against them, particularly when they pose no threat to our national security. Section 34(1)(f) is an unduly excessive provision that undermines how great our differences make us. Indeed, this year, we are celebrating not only 150 years of success, but 150 years of difference that made that success achievable.

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<![CDATA[R v Spencer and the Right to Remain Anonymous]]> http://www.constitution150.ca/2017/01/24/r-v-spencer-and-the-right-to-remain-anonymous/ http://www.constitution150.ca/2017/01/24/r-v-spencer-and-the-right-to-remain-anonymous/#respond Tue, 24 Jan 2017 16:39:18 +0000 http://constitution150.openum.ca/?p=575 R v Spencer and the Right to Remain Anonymous

By Cayda Rubin

R v Spencer (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14233/index.do) is a 2014 constitutional law case from the Supreme Court of Canada (SCC). It is an important constitutional “moment” in Canadian history because it was the first time the SCC recognized that there may be a privacy interest in one’s online information – especially in the context of remaining anonymous.

In 2007, Matthew David Spencer was charged with possessing child pornography contrary to section 163.1(4) of the Criminal Code and “making available” child pornography contrary to section 163.1(3).

Mr. Spencer, a resident of Saskatoon, used the online file-sharing program, LimeWire, to download several files of child pornography. The Saskatoon police discovered the IP address of a computer sharing what was believed to be child pornography. Matching the IP address against a database of various locations, they found that it was attached to a computer in Saskatoon, with Shaw Communications (Shaw) as the Internet Service Provider (ISP). The police sent a written “law enforcement request” to Shaw asking for the subscriber information attached to the IP address, including the user’s name, address, and telephone number. Shaw’s voluntary cooperation led to Mr. Spencer’s identity being revealed to the police. With this information, the police obtained a warrant to search Mr. Spencer’s home and seize his computer. The search of his computer revealed the pornographic files.

This case is significant as Mr. Spencer challenged the constitutionality of the police’s actions in obtaining his subscriber information from his ISP. Mr. Spencer argued that, without first obtaining proper authority from a court (a warrant), the police’s request to Shaw constituted an unlawful “search”, violating his section 8 Canadian Charter of Rights and Freedoms (Charter) right against unreasonable search and seizure. The SCC agreed.

The purpose of section 8 of the Charter is to protect a person’s reasonable expectation of privacy. To determine whether Mr. Spencer had a reasonable expectation of privacy for his online information, the Court analyzed:

  1. the subject matter of the search; and
  2. the nature of the privacy interest in question.

The Court concluded that the subject matter of the search was not merely Mr. Spencer’s basic subscriber information, but rather that information in connection with his particular online activities. In determining the privacy interest, the Court elaborated on the three notions of informational privacy: privacy as secrecy, privacy as control, and privacy as anonymity. Writing for the Court, Justice Cromwell explained that by attempting to connect subscriber information to anonymous online activity, the police’s actions engaged the anonymity aspect of Mr. Spencer’s informational privacy interest. Deciding that Mr. Spencer had a reasonable expectation of privacy over his Internet activities, a warrantless police request to his ISP amounted to an unlawful search, and violated his section 8 Charter rights.

Section 24(2) of the Charter, which provides remedies for those whose rights have been violated, states that any property found by means of a section 8 violation can be excluded as evidence in a trial. Despite determining that the police had committed an “unreasonable search”, the SCC ultimately upheld the inclusion of the evidence. As the police in conducting their investigation believed that they were acting under lawful means, the Court determined excluding the evidence would bring the administration of justice into disrepute. Without the information from the search, the Crown would have no evidence to base as case on. The SCC decision affirmed Mr. Spencer’s conviction on the possession of child pornography offence, and upheld the Court of Appeal’s order for a new trial on the “making available” offence.

This decision had practical implications for the future of police investigations. As it was found that police need a warrant to request subscriber information (except in pressing circumstances), the practice of sending voluntary “law enforcement requests” to ISPs is no longer a viable means of obtaining a suspect’s information.

Despite the criminal subject matter at the heart of R v Spencer, its findings on informational privacy interests has significant implications for the future of Internet privacy. Not only was it determined that, depending on the circumstances, there is a significant privacy interest in one’s online information, but that Internet users have a reasonable expectation of privacy online. The Court’s recognition that information, especially in the context of the Internet, is more than just someone’s name or home address is distinctly important in an age where the quantity and quality of information stored about Internet users is ever increasing.

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<![CDATA[Minority Rights Before the Charter of Rights and Freedoms]]> http://www.constitution150.ca/2017/01/22/minority-rights-before-the-charter-of-rights-and-freedoms/ http://www.constitution150.ca/2017/01/22/minority-rights-before-the-charter-of-rights-and-freedoms/#respond Sun, 22 Jan 2017 18:47:59 +0000 http://constitution150.openum.ca/?p=571 Minority Rights Before the Charter of Rights and Freedoms

By Emily Bradley

Today, equality is constitutionally protected by the Charter of Rights and Freedoms. Before the Charter’s enactment however, the legal treatment of minority groups was heavily influenced by the constitutional distribution of powers between the provincial and federal governments. Between 1872 and 1922, the British Columbia legislature passed over one hundred acts or bills containing provisions discriminating against Chinese and Japanese individuals. While many of these laws were challenged on the grounds that they were beyond the province’s legislative power, laws depriving Asian residents of the right to vote or hold public office were uniformly allowed to stand.

In 1900, Tomekichi Homma, a naturalized Japanese Canadian, challenged a BC law which deprived Asian and First Nation residents of the right to vote. The law in question, the Provincial Elections Act, provided that no Japanese individual, whether naturalized or not, would be permitted to vote at the provincial level. After being unable to add his name to the register of voters, Mr. Homma filed suit against the Vancouver Collector of Votes, Mr. Cunningham. The resulting case, Cunningham v. Homma, would set the path for legal discrimination against Asian Canadians.

Mr. Homma’s claim initially appeared likely to succeed as the Judicial Committee of the Privy Council, the highest court in Canada at that time, had recently struck down a law which prohibited mining companies from employing “Chinamen”. The case, known as Union Colliery Co. v. Bryden, offered hope for ending other discriminatory practices against Asian Canadians. In Union Colliery, the Privy Council noted that the federal Parliament’s power over naturalization included the power to determine the “rights and privileges pertaining to residents in Canada after they have been naturalized.” As the BC legislature’s prohibition on Chinese miners interfered with such rights and privileges, the court concluded that it intruded upon the federal Parliament’s authority over immigration and naturalization.

Given the verdict in Union Colliery, Mr. Homma argued that the BC Provincial Elections Act similarly restricted the rights of Asian residents and thus interfered with the federal Parliament’s power over naturalization. He further argued that the Naturalization Act of Canada, a federal statute, entitled naturalized citizens to the same rights, privileges, and responsibilities as natural-born British subjects. Both the trial judge and the full BC Supreme Court agreed with Mr. Homma and struck down the law. In 1902 however, the BC government appealed the case to the Privy Council, arguing that the federal power over naturalization only gave the federal government power over the “mode in which naturalization is to be conferred, not the rights which may or may not follow.”

In a surprising turn of events, the Privy Council upheld the law, concluding that the Act did not necessarily have implications on naturalization since its restrictions applied to all Japanese persons whether naturalized or not. Moreover, the court concluded that the federal statute upon which Mr. Homma relied simply guaranteed naturalized citizens “broad political rights” which did not include the right to vote in a particular province. The Privy Council also acknowledged a historical precedent in Britain of denying individuals the right to vote based on particular traits, such as religion, and that doing so did not affect one’s citizenship.

The Privy Council’s judgment in Cunningham appears to fully contradict its judgment rendered just four years earlier in Union Colliery. To reconcile the verdicts, the Privy Council stressed that the right that Mr. Homma was being deprived of was not “of the ordinary rights of the inhabitants of British Columbia” and that unlike the Chinese miner prohibition, the BC Provincial Elections Act did not seek to drive Asian citizens out of the province by depriving them of the ability to earn a living. Still, some critics assert that this contradiction strongly suggests that the Privy Council was likely more sensitive to business concerns than minority rights as Asian residents were seen as a valuable source of low-cost labour.

BC’s disenfranchisement of First Nation, Chinese, and Japanese individuals was extended in 1907 to “Hindus” and all South Asians. Exclusion from provincial voters’ lists had far-reaching consequences for individuals such as Mr. Homma since the ability to vote at the federal level required inclusion on provincial registries. Furthermore, many professions required candidates to be eligible voters.

On April 1, 1949, Japanese residents of BC were at last given full citizenship rights, including the right to vote. However, no formal right to vote existed in Canada before the adoption of the Charter in 1982. The loss of fundamental rights experienced by Mr. Homma and other minority Canadians exemplifies the importance in constitutionally safeguarding basic human rights for all Canadian citizens, regardless of ethnicity.

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<![CDATA[The Expansion of Minority Language Education Rights in Ontario]]> http://www.constitution150.ca/2017/01/19/the-expansion-of-minority-language-education-rights-in-ontario-heather-cameron/ http://www.constitution150.ca/2017/01/19/the-expansion-of-minority-language-education-rights-in-ontario-heather-cameron/#respond Thu, 19 Jan 2017 16:02:08 +0000 http://constitution150.openum.ca/?p=561 The Expansion of Minority Language Education Rights in Ontario

By Heather Cameron

Respect for minorities is one of the unwritten constitutional principles underlying the Canadian constitution and of paramount importance in Canadian history. One of the key considerations in Canada’s unique multicultural history has been the guarantee of language rights to minority language groups in Canada, encompassing the Francophone minority outside Quebec and the Anglophone minority within Quebec. Following a history of denying rights to these groups, the Ontario Court of Appeal upheld education rights for French language students in Ontario in the decision Reference re Education Act of Ontario and Minority Language Education Rights, 1984.

First, section 93 of the Constitution Act 1867 (CA 1867) grants the legislatures of each province outside Quebec the power to make laws governing education and to establish an education management system. Prior to the passage of the Charter, this provincial power to grant or not grant minority language education rights in public schools resulted in a denigration of rights. In 1912, the Ontario government passed Standing Order 17 mandating English as the sole language of instruction, with the Judicial Council of the Privy Council upholding the order in 1917. Finally, the Royal Commission on Bilingualism and Biculturalism recognized the  necessity of preserving minority languages and education rights in 1977.

The Constitution Act 1982 (CA 1982) expanded protections to include the preservation and enforcement of guaranteed rights and fundamental freedoms, including minority language education rights.  CA 1982 builds on CA 1867 to specify the delegated rights in minority language education, enshrining the protection of minority rights that provides the framework for protection of Canada’s diverse and multicultural society. Section 23 specifies which Canadian citizens may choose to have their children educated in the minority language of a province. These rights are enshrined in the Constitution and cannot be overridden by an Act of Parliament or the Legislature.

The Ontario Court of Appeal continued to expand on the boundaries of this constitutional guarantee in one of the first cases to consider section 23, the Reference re Education Act of Ontario and Minority Language Education Rights, 1984. This decision considered the application of section 23 to existing provincial education laws. It held that Section 23 must be given a broad and liberal interpretation because it enacts new rights and creates a code establishing minority language education rights.  Under this code, the province is obligated to provide publicly funded French language instruction. The Legislature must further provide for education facilities for the minority on an equal basis to the majority, recognising the status of schools as a means to reflect and transmit the values of an official language community.

The Court further held that the right of Francophone parents to manage and control French language classes and schools should be recognized as being encompassed within section 23. Section 23 guarantees the representation of the linguistic minority on school boards and other authorities which administer minority language education, and these representatives should be given exclusive authority to make decision pertaining to this education. This right applies to both denominational and non-denominational schools.

This case was essential to the expansion of minority language education rights in Canada, overturning years of government action negatively impacting minority communities. Most importantly, it guaranteed the rights of minority groups to manage and control their own schools. Previously, French language schools existed outside of Quebec, but were controlled by the Anglophone majority and were not guaranteed equality with Anglophone education. This case ensured that all future minority education rights were to be interpreted with an expansive view, thereby expanding minority rights in Ontario and Canada. It represented an important protection of Franco-Ontarians, as it guaranteed their children would have a level of education equal to Anglophone communities and retain its essential place in the community.

The court’s holding further led to future decisions expanding and clarifying the rights of minorities in the context of language rights education in other provinces, as well as applying these same principles in the areas of government services and healthcare. This decision becomes more meaningful as aboriginal languages gain recognition in Canadian society and the Courts must eventually decide how to create new rights in this area. One must hope that courts will draw on the Ontario Court of Appeal’s approach to give Aboriginal language education the same large and liberal interpretation guaranteed to other minority language groups.

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<![CDATA[Constitution 150 Blog]]> http://www.constitution150.ca/2017/01/17/556/ http://www.constitution150.ca/2017/01/17/556/#respond Tue, 17 Jan 2017 17:58:14 +0000 http://constitution150.openum.ca/?p=556 To celebrate the Canadian Constitution and to foster constructive discussion, we invite you to submit a short blog post on any topic relating to the Canadian Constitution. In the same way as the Constitution GO contest, the criteria concerning the content of the blog aren’t strict, and we would like to see different points of view regarding the Constitution. For an example, please see the post below.

The blog posts will be posted on our website in the language they were written in (french or english) and comments are welcomed. Please send your blog posts to [email protected]

Thank you!

 

Our first post is by Andrew Joseph Froh

Our Constitution, Your Tax Dollars

The year 2017 will mark the 150th anniversary of Canada’s Constitution. However, 2017 will also mark the 100th anniversary of a historical event that is far less appreciated: the introduction of the income tax. The two events are connected to each other, even though our Constitution is the only one getting a party.

Section 91(3) of the Constitution Act, 1867 gives Parliament power over “the raising of Money by any Mode or System of Taxation.” Before 1917, Parliament raised revenue primarily through customs with high tariffs on the importation of goods. Our first Prime Minister, John A. Macdonald, introduced these tariffs in 1878 through The National Policy. This economic program was meant to protect Canadian manufacturers from American competition and the lower tax rate was supposed to attract more immigration.

Tariffs are an example of indirect taxation in which the tax is paid by one person in the sale of goods and services but then passed onto the final consumer as part of the total price. The National Policy slowly became dismantled as the Canadian and American economies merged, although it proved one of the most contentious issues between the Liberals and Tories in Canada’s formative years.  Yet none of the political parties had relied on the Constitution to impose an income tax, an example of direct taxation where the taxpayer directly pays the government.

This brings us to 1917, when Canada was still fighting alongside the Allies in WWI. Parliament has always been responsible for our military, navy, and national defence under section 91(7) of the Constitution. Canada incurred over $2 billion in debt during WWI, and Parliament was desperate to fund what seemed like a war with no end. Sir Thomas White, the finance minister under Prime Minister Robert Borden, tabled a resolution to the House of Commons for an income tax.

The Income War Tax Act was merely 10-pages long and meant to be a temporary wartime measure. However, once the war ended, the massive debt accrued during WWI meant that Canada could not forgo the income tax. The following government under Prime Minister William Lyon Mackenzie King saw both the introduction of the welfare state and another world war. The income tax continued to develop and became essential to Canada’s ability to finance public services and redistribute resources. The Income Tax Act today is an intimidating 3,300-page long document and is significantly more complex than its predecessor.

But what about your province’s revenues? Section 92(2) of the Constitution Act, 1867 gives the provincial legislatures power to impose “Direct Taxation within the Province in order to the raising of a Revenue or Provincial Purposes.” This means that the provinces cannot use indirect methods of taxation and the revenue must be used for purposes found under section 92 of the Constitution. All of the provinces except Quebec eventually entered into tax collection agreements with the federal government for the collection of personal income tax. So every April 30 you only have to file one return with the Canada Revenue Agency, which then redistributes the appropriate amount to the province you live in.

Parliament, in contrast, operates with the federal spending power. This allows Parliament to spend money however it sees fit and in whatever area it desires, irrespective of provincial jurisdiction. This can lead to the two levels of government butting heads over tax policies. The unrestricted federal power to tax under section 91(3) of the Constitution still influences politics today. For example, Prime Minister Justin Trudeau’s recent decision to implement a carbon tax has its foundations in the same constitutional authority, and has already resulted in many tense federal-provincial discussions.

Tax is as much a permanent feature of Canadian governance as the Constitution itself. Income taxes are now an especially important source of revenue for so much of what we enjoy as citizens everyday, from the hospitals we are born in to the highways we travel on. It is unlikely that they will be leaving us anytime soon. So the next time you file your income tax return, or even pay GST on your double-double, take a moment to realize you are participating in a constitutional activity with foundations that are 150 years-old.

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<![CDATA[Registration open for Patriation Conference]]> http://www.constitution150.ca/2016/12/25/registration-open-for-patriation-conference/ http://www.constitution150.ca/2016/12/25/registration-open-for-patriation-conference/#respond Sun, 25 Dec 2016 15:31:23 +0000 http://constitution150.openum.ca/?p=453 Please visit https://alumni.uottawa.ca/en/constitution-150 to register!

The Public Law Group of the University of Ottawa, Faculty of Law will host the conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032 in Ottawa on March 8-10, 2017. The event will take place within walking distance of where the Charter of Rights and Freedoms was proclaimed 35 years ago.

Constitution 150 is a year-long collaborative partnership of the Public Law Group at the University of Ottawa, the Centre for Constitutional Studies, the University of Alberta, and the Université de Montréal.

Constitution 150 will host three inter-connected but distinct conferences in three cities across Canada in 2017: Confederation, Patriation, and Reconciliation. Our conferences will bring together scholars and community members from across the country to debate constitutional themes and produce new scholarship that affects the lives of Canadians.

  • Regular Rate: $315 (Early bird discount of 10% until Feb. 1, 2017 – after $350)
  • Public Sector Rate: $270 (Early bird discount of 10% until Feb. 1, 2017 – after $300)
  • Academic Rate $180 (Early bird discount of 10% until Feb. 1, 2017 – after $200)
  • Law and Articling Student Rate: $50
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<![CDATA[Constitution GO Contest]]> http://www.constitution150.ca/2016/11/18/constitution-go-contest/ http://www.constitution150.ca/2016/11/18/constitution-go-contest/#respond Fri, 18 Nov 2016 23:12:48 +0000 http://constitution150.openum.ca/?p=351 To celebrate the Canadian Constitution and the beauty of our country, we invite you to submit a photo of a place of constitutional significance with the coordinates (GPS, Google Maps or other) and a brief explanation. The photo will be posted on our website and you’ll have the chance of winning a prize! The criteria concerning the chose place aren’t strict: We would like to see the Constitution through the eyes of Canadians.

We will select three photos to win a prize. The photos will be selected a week before each of our three conferences, March 7th prior to the conference in Ottawa, May 15th prior to the conference in Montreal and September 20 prior to the conference in Alberta. The selected photo will be displayed at the conference.

Please send your photos to [email protected]

Thank you!

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