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Constitutional History of Canada

The Constitution of Canada is the country’s governing legal framework. It defines the powers of the executive branches of government and of the legislatures at both the federaland provincial levels. Canada’s Constitution is not one legal document. It is a complex mix of statutes, orders, British and Canadian court decisions, and generally accepted practices known as constitutional conventions. The Constitution has been in constant evolution from colonial times to the present day. The story of the Constitution is the story of Canada itself. It reflects the shifting legal, social and politicalpressures facing Canadians, as well as their choices as a society.

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Canada East

In 1841, Britain united the colonies of Upper and Lower Canada into the Province of Canada. This was in response to the violent rebellions of 1837–38. The Durham Report (1839) laid out the guidelines to create the new colony with the Act of Union in 1840. The Province of Canada was made up of Canada West (formerly Upper Canada) and Canada East (formerly Lower Canada). The two regions were governed jointly until Confederation in 1867. Canada West then became Ontario and Canada East became Quebec.

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Criminal Code of Canada

Canada’s Criminal Code is a federal statute. It was enacted by Parliament in accordance with section 91(27) of the Constitution Act, 1867, which gives the federal government exclusive jurisdiction to legislate criminal offences in Canada. The Criminal Code contains most of the criminal offences that have been created by Parliament. Other criminal offences have been incorporated into other federal statutes. The Code defines the types of conduct that constitute criminal offences. It establishes the kind and degree of punishment that may be imposed for an offence, as well as the procedures to be followed for prosecution.

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Confederation

Confederation refers to the process of federal union in which the British North American colonies of Nova Scotia, New Brunswick and the Province of Canada joined together to form the Dominion of Canada. The term Confederation also stands for 1 July 1867, the date of the creation of the Dominion. (See also Canada Day.) Before Confederation, British North America also included Newfoundland, Prince Edward Island, British Columbia, and the vast territories of Rupert’s Land (the private domain of the Hudson’s Bay Company) and the North-Western Territory. Beginning in 1864, colonial politicians (now known as the Fathers of Confederation) met and negotiated the terms of Confederation at conferences in Charlottetown, Quebec City and London, England. Their work resulted in the British North America Act, Canada’s Constitution. It was passed by the British Parliament. At its creation in 1867, the Dominion of Canada included four provinces: Nova Scotia, New Brunswick, Quebec and Ontario. Between then and 1999, six more provinces and three territories joined Confederation.

(This is the full-length entry about Confederation. For a plain language summary, please see Confederation (Plain Language Summary).)

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Notwithstanding Clause

Section 33 of the Canadian Charter of Rights and Freedoms is known as the notwithstanding clause. Also known as the override clause, it is part of the Constitution of Canada. The clause allows federal, provincial or territorial governments to temporarily override, or bypass, certain Charter rights. These overrides are subject to renewal after five years. Although the clause is available to governments, its use is politically difficult and therefore rare. It is known colloquially as the “nuclear option,” because its use is considered extremely severe. Since the Constitution was patriated in 1982, the clause has been used only a handful of times by various provinces. The federal government has never invoked the clause.

Editorial

Editorial: Newfoundland’s Contribution to the Patriation of the Constitution

In the decades since 1982, politicians and the media have recounted the same story about the patriation of Canada’s constitution and the adoption of the Charter of Rights and Freedoms. Most of the credit in this version goes to Prime Minister Pierre Trudeau. Three others are credited with breaking an impasse in the 1981 negotiations: federal justice minister Jean Chrétien, Saskatchewan attorney general Roy Romanow, and Ontario attorney general Roy McMurtry. But in his memoirs, former Newfoundland PremierBrian Peckford argues that the key intervention in the patriation process came from Peckford and the members of the Newfoundland delegation.

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Constitution Act, 1982

The Constitution Act, 1982 is a landmark document in Canadian history. It achieved full independence for Canada by allowing the country to change its Constitution without approval from Britain. It also enshrined the Charter of Rights and Freedoms in Canada’s Constitution, the highest law of the land. The Act was passed after a fierce, 18-month political and legal struggle that dominated headlines and the agendas of every government in the country. (See Patriation of the Constitution.)

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Canada and the Cuban Missile Crisis

The Cuban Missile Crisis lasted from 16 to 28 October 1962. The Soviet Union stationed nuclear missiles in Cuba, which posed a threat to the United States and Canada. It brought the world to the edge of nuclear war. Canadian armed forces were placed on heightened alert. Prime Minister John Diefenbaker’s hesitant response to the crisis soured already tense relations between Canada and the US and led to the downfall of his government in 1963.   

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Canada West

In 1841, Britain united the colonies of Upper and Lower Canada into the Province of Canada. This was in response to the violent rebellions of 1837–38. The Durham Report (1839) laid out the guidelines to create the new colony with the Act of Union in 1840. The Province of Canada was made up of Canada West (formerly Upper Canada) and Canada East (formerly Lower Canada). The two regions were governed jointly until Confederation in 1867. Canada West then became Ontario and Canada East became Quebec.

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Distribution of Powers

Distribution of powers refers to the division of legislative powers and responsibilities between the federal and provincial governments. The areas of distribution were first outlined at the Quebec Conference in 1864 (see Quebec Resolutions) and are enshrined in the Constitution Act, 1867. They have been a source of debate and tension between the provinces and the federal government for generations. (See Federal-Provincial Relations.) However, this part of the Constitution has remained remarkably unchanged since Confederation.

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Prohibition in Canada

Prohibition in Canada came about as a result of the temperance movement. It called for moderation or total abstinence from alcohol, based on the belief that drinking was responsible for many of society’s ills. The Canada Temperance Act (Scott Act) of 1878 gave local governments the “local option” to ban the sale of alcohol. Prohibition was first enacted on a provincial basis in Prince Edward Island in 1901. It became law in the remaining provinces, as well as in Yukon and Newfoundland, during the First World War. Liquor could be legally produced in Canada (but not sold there) and legally exported out of Canadian ports. Most provincial laws were repealed in the 1920s. PEI was the last to give up the “the noble experiment” in 1948.  

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Durham Report

In 1838, the British politician Lord Durham was sent to British North America to investigate the causes of the rebellions of 1837–38 in the colonies of Upper and Lower Canada. Durham's famous Report on the Affairs of British North America (1839) led to a series of reforms and changes. These included uniting the two Canadas into a single colony, the Province of Canada, in 1841. (See also: Act of Union.) The report also paved the way for responsible government. This was a critical step in the development of Canadian democracy. The report played an important role in the evolution of Canada’s political independence from Britain.

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Canadian Charter of Rights and Freedoms

The Charter of Rights and Freedoms, or simply the Charter, is the most visible and recognized part of Canada’s Constitution. The Charter guarantees the rights of individuals by enshrining those rights, and certain limits on them, in the highest law of the land. Since its enactment in 1982, the Charter has created a social and legal revolution in Canada. It has expanded the rights of minorities and criminal defendants, transformed the nature and cost of criminal investigations and prosecutions, and subjected the will of Parliament and the legislatures to judicial scrutiny — an ongoing source of controversy.

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Rebellion in Upper Canada

The 1837 rebellion in Upper Canada was a less violent, more limited affair than the uprising earlier that year in Lower Canada. However, its leaders, including William Lyon Mackenzie, were equally serious in their demands. They wanted democratic reform and an end to the rule of a privileged oligarchy. The rebellion itself failed, but its very failure helped pave the way for moderate and careful political change in British North America. This included the union of Upper and Lower Canada into the Province of Canada and the eventual introduction of responsible government.

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Chinese Head Tax in Canada

The Chinese head tax was enacted to restrict immigration after Chinese labour was no longer needed to build the Canadian Pacific Railway. Between 1885 and 1923, Chinese immigrants had to pay a head tax to enter Canada. The tax was levied under the Chinese Immigration Act (1885). It was the first legislation in Canadian history to exclude immigration on the basis of ethnic background. With few exceptions, Chinese people had to pay at least $50 to come to Canada. The tax was later raised to $100, then to $500. During the 38 years the tax was in effect, around 82,000 Chinese immigrants paid nearly $23 million in tax. The head tax was removed with the passing of the Chinese Immigration Act in 1923. Also known as the Chinese Exclusion Act, it banned all Chinese immigrants until its repeal in 1947. In 2006, the federal government apologized for the head tax and its other racist immigration policies targeting Chinese people.

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Sovereignty

Sovereignty is an abstract legal concept. It also has political, social and economic implications. In strictly legal terms, sovereignty describes the power of a state to govern itself and its subjects. In this sense, sovereignty is the highest source of the law. With Confederation and the passage of the British North America Act, 1867, Canada’s Parliament was still legally under the authority of the British Parliament. By 1949, Canada had become fully sovereign in relation to Great Britain. This was due to landmark legislation such as the Statute of Westminster (1931). The Constitution Act, 1982 swept away Britain’s leftover authority. Questions of sovereignty have also been raised by Indigenous peoples in Canada and by separatists in Quebec. The latter, for a time, championed the concept of sovereignty-association.

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Rebellions of 1837–38

In 1837 and 1838, insurgents in Upper and Lower Canada led rebellions against the Crown and the political status quo. The revolt in Lower Canada was more serious and violent than the rebellion in Upper Canada. However, both events inspired the pivotal Durham Report. It led to the Act of Union, which merged the two colonies into the Province of Canada. It also resulted in the introduction of responsible government. These were critical events on the road to Canadian nationhood.

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