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Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is a board of the British Privy Council. It was formed in 1833. In 1844, it was given jurisdiction over all of Britain’s colonial courts. People who had been judges in high courts in Britain served on the Judicial Committee, along with a sprinkling of judges from the Commonwealth. Their decisions were often criticized for favouring provincial powers over federal authority, especially in fields such as trade and commerce. The Judicial Committee served as the court of final appeal for Canada until 1949, when that role was given to the Supreme Court of Canada.
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.
The Charlottetown Accord of 1992 was a failed attempt by Prime Minister Brian Mulroney and all 10 provincial premiers to amend the Canadian Constitution. The goal was to obtain Quebec’s consent to the Constitution Act, 1982. The Accord would have recognized Quebec as a distinct society; decentralized many federal powers to the provinces; addressed the issue of Indigenous self-government; and reformed the Senate and the House of Commons. The Accord had the approval of the federal government and all 10 provincial governments. But it was rejected by Canadian voters in a referendum on 26 October 1992.
The Patriation Reference, formally known as Re: Resolution to Amend the Constitution, was a reference case of the Supreme Court of Canada. On 28 September 1981, the court decided that it was legal for the federal government to patriateand amend Canada’s Constitution without the consent of the provincial governments. But it also found that to do so in areas that affect provincial powers would be a breach of constitutional convention. The court’s decision concluded that such conventions are of great significance. In the words of the court, “Constitutional convention plus constitutional law equal the total constitution of the country.”
Editorial: The Canadian Constitution Comes Home
In April 1982, as an Ottawa winter turned to spring, Queen Elizabeth II made her eleventh visit to Canada. She had come to make it official. After more than a half-century of trying, Canada would have its own constitution. A Canadian-made constitution was unfinished business from the country’s colonial past. The British North America Act in 1867 set out the jurisdictions of the federal and provincial governments and created the Dominion of Canada. It was, however, a law of the British Parliament, and it could only be amended (changed) by the British.
Opposition to Confederation has existed since a union of British North Americancolonies was first proposed in the late 1840s. In the eastern parts of the country, opponents generally feared that Confederation would strip power from the provincesand hand it to the federal government; or that it would lead to higher taxes and military conscription. Many of these opponents ultimately gave up and even served in the Canadian government. In the West, Indigenous peoples in the Red River Colonywere never asked if they wanted to join Confederation. Fearing for their culture and land rights under Canadian control, they mounted a five-month insurgency against the government. Many Quebec nationalistshave long sought to separate from Confederation, either through the extreme measures of the Front de libération du Québec (FLQ), or through referenda in 1980 and 1995.