Government and

Statute Law

CHAPTER OVERVIEW
3
CHAPTER OUTLINE

Canada’s Constitution
British North America Act,
A constitution is the fundamental law of any country. Canadians have 1867
a unique constitutional experience that reflects the history of their A Federal System
nation. As a product of two founding peoples, Canada’s Constitution has Division of Powers
had to maintain a delicate balance between the aspirations of the French
and English cultures. Patriating the Constitution

This chapter is divided into three main sections that help students Problems with the BNA Act

understand the historical background and modern workings of the Constitution Act, 1982
Constitutional Conflict
Constitution. The first section outlines the division of powers in the fed-
eral system as outlined in the British North America Act, 1867. It explains
Government and Law Making
two important doctrines: intra vires (the passing of a law within a gov-
The Executive Branch
ernment’s jurisdiction) and ultra vires (the passing of a law that is beyond
The Legislative Branch
the powers of a specific government). The second section looks at some
The Judiciary
of the issues surrounding the patriation of the Constitution. It includes Enacting a Statute
an overview of certain features of the Constitution Act, 1982, including the The Role of Individuals and
Principle of Equalization and the addition of the Charter of Rights and Interest Groups
Freedoms. This section also provides a description of the Meech Lake
Accord and the Charlottetown Accord, two unsuccessful attempts to entice
Quebec to sign the Constitution. The third section covers government and
law making in Canada, focusing on how laws are made and enforced.
The Looking Back activities provided at the end of the chapter
offer students a variety of activities that enable them to demonstrate and
apply their knowledge and understanding of the key concepts related to
government and law.

75
PLANNING CHART
Key Content Suggested Strategies

Topic: 1. Use the questions in the chapter opener (page 51 of the student text) to
Canada’s Constitution encourage discussion about issues involved in making laws.

Key Vocabulary 2. Assign Extension Activity 1: Current Events Report, located on page 89 of
unitary system this resource.
federal system
3. Introduce the topic of Canada’s Constitution by using an appropriate video.
residual powers
The National Film Board’s Our Constitution: The Law of the Land (see
intra vires
“Additional Resources” on page 92 of this resource) provides a good overview
ultra vires
of Canada’s constitutional history. A question sheet could be used to provide
students with a summary of the video.
Resources
Law in Action, pp. 52–57 4. Have students read pages 52 to 55 of the text for homework. In the following
Generic Assessment Master class, ask students to work in pairs to answer the “Building Your
G-12: Rubric: Current Events Understanding” questions on page 57 of the text. The answers to these ques-
Report COPY Assessment tions will form the basis of their study notes.

5. As a class, read the case of The Attorney General for Alberta v. The Attorney
General of Canada on page 56 of the text and have students answer the
questions orally. Use this case to draw out the concepts of ultra vires and
intra vires.

Topic: 1. You may wish to supplement the section in the text describing the patriation
Patriating the Constitution of Canada’s Constitution with the National Film Board video called The Road
to Patriation, which provides a good historical background to this event.
Key Vocabulary
Statute of Westminster 2. Have the students read the background material from pages 57 to 61 of the
shared cost agreements text. The “Building Your Understanding” questions on page 61 of the text
civil liberties could be assigned for homework, or students could answer questions orally in
patriate class.
Principle of Equalization
3. Review the key concepts from this section as a class.
amending formula
Canadian Charter of Rights and 4. If time permits, provide students with the Additional Cases on pages 93–94
Freedoms of this resource. Have them read the cases and answer the analysis questions
in small groups. The groups could then present their findings to the class.
Resources Finish with a class discussion of the cases and highlight the ongoing tension
Law in Action, pp. 57–61 between the federal and provincial governments regarding jurisdiction, partic-
ularly with respect to natural resources.

76 UNIT 1 ◆ Our Legal Heritage

Key Content Suggested Strategies

Topic:
Government and Law Making
Key Vocabulary
executive branch
legislative branch
judiciary
bill
government or public bill
private member’s bill
lobby groups
Resources
Law in Action, pp. 62–68
PowerPoint Overhead: Figure 3.6
PowerPoint Overhead: Figure 3.7
PowerPoint Overhead: Figure 3.8
1. Outline and explain the process by which a law is enacted. In order to facili-
tate this presentation use the PowerPoint overheads for Figures 3.6, 3.7, and
3.8 of the text.
2. Once students are familiar with the process of how a law is passed, have
them work in groups to examine “Looking Back” question 12 on page 71 of
the text. Have the groups formulate a plan as outlined in the question.
Complete this question with a follow-up discussion that examines the strate-
gies that students may have adopted after learning the process (for example,
forming lobby groups will help to gain support for their cause; winning the
support of a government member, especially a cabinet member, would help to
get their law passed). Students should be aware of the need to approach the
appropriate level of government in order to change a specific law. Allow about
15 minutes for this section.
3. Have students answer the “Building Your Understanding” questions on page
68 of the text to complete their summary notes for this section.

Chapter Review
Resources Law in Action,” Law in the Extreme: Medical Research Brings Hope and
Controversy,” p. 69

Law in Action, “Looking Back,” pp. 70–71

- Generic Assessment Master G-2: Rubric: Research Report
COPY Assessment

- Generic Assessment Master G-7: Rubric: Oral Presentation

COPY Assessment

- Assessment Master 3-1: Checklist: Group Assessment of Town-Hall Meeting

COPY Assessment

- Assessment Master 3-2: Rubric: Student Reflection on Town-Hall Meeting

COPY Assessment

- Generic Assessment Master G-11: Rubric: Essay COPY Assessment

Law in Action, “Cases,” pp. 72–73

- Generic Assessment Master G-3: Rubric: Case Analysis COPY Assessment

- Generic Assessment Master G-10: Rubric: Case Presentation

COPY Assessment

Additional Cases: Reference re Goods and Services Tax; Nanaimo (City) v.

Rascal Trucking Ltd; Kitkatla Band v. British Columbia (Minister of Small
Business, Tourism and Culture) COPY Case Analysis

Law in Action, Test Bank, Chapter 3

CHAPTER 3 ◆ Government and Statute Law 77

 Key Content Suggested Strategies

Extension Activities Activity 1: Current Events Report

- Generic Assessment Master G-12: Rubric: Current Events Report
COPY Assessment

Activity 2: Case Report

- Generic Assessment Master G-3: Rubric: Case Analysis
COPY Assessment

Activity 3: Division of Power

- Generic Assessment Master G-1: Checklist: Group Work COPY Assessment

Activity 4: Royal Commissions

- Generic Assessment Master G-2: Rubric: Research Report
COPY Assessment

78 UNIT 1 ◆ Our Legal Heritage

 Legal Logic
Test Your Aptitude for Law: Activities for Getting Started

Puzzle 1 Puzzle 3
The Fathers of Confederation divided the powers in Systems of government are named according to the
the British North America Act based on the idea that number and type of people involved in the governing
matters of national concern would belong to the cen- system. The ending for each of these systems is -cracy,
tral (federal) government, while issues of a local nature which comes from the Greek word kratos meaning “to
would be dealt with by the provincial government. rule.” Since the word demos in Greek means “the peo-
Which of the following would be powers assigned to the ple,” the word democracy means “rule by the people.”
central government? Identify the meaning of each of the following
terms.
a) international relations
a) theocracy
b) currency and coinage
b) oligarchy
c) regulation of the Internet
c) aristocracy
d) education
d) plutocracy
e) hospitals
Answer a), b), c)
e) autocracy
Answers: a) theocracy: rule by one religious authority;
b) oligarchy: rule by a few individuals; c) aristocracy: rule
Puzzle 2 by an elite group or class of people; d) plutocracy: rule by
the wealthy class; e) autocracy: rule by one person who
Which of the following would be powers assigned to
has unlimited power
the provincial government?
a) labour and trade unions
Puzzle 4
b) marriage ceremonies
Unscramble the following terms relating to govern-
c) criminal law ment and statute law.
d) trade and commerce a) rpitatea __________________________________
e) property and civil rights b) qnelauaziiot ______________________________
Answer: a), b), e)
c) yuidicjra _________________________________
Answers: patriate, equalization, judiciary

© Pearson Education Canada 2003. LAW IN ACTION. The right to reproduce this page is restricted to the purchasing school. 79
 Solutions to Questions and Cases
Page 56
Guided Case: The Attorney General
for Alberta v. The Attorney General
of Canada
1. The legal term for this argument is ultra vires.
2. The Supreme Court found that the Firearms Act
did not infringe on provincial powers and that
upholding the Act as a criminal law would not
upset the balance of federalism.
3. Arguments used by the Alberta government could
include the following:
• Ownership of guns or any other “property” falls
under s. 92 of the Constitution Act dealing with
“property and civil rights,” a provincial juris-
diction.
• Registration of guns would pose a particular
hardship on Alberta because of the number of
hunters and farmers in the province.
Page 57
Building Your Understanding
1. A unitary system of government would not be prac-
tical for Canada because of the country’s geo-
graphic size and diverse population. It would be
difficult for a single government to take care of
the needs of the various regions. In addition, at
the time of Confederation, the two main cultural
groups were the French and the English. Given
that each group had its own concerns, it was best
to leave matters that would cause disagreements
(such as education) to the provincial governments
and matters that were of common concern (such as
defence) to the federal government.
2. The central government in Canada is stronger than
the central government in the United States, so the
Canadian provinces do not have as much power
as the American states.
80 UNIT 1 ◆ Our Legal Heritage
3. Responsibilities given to the federal government
under the British North America Act included bank-
ing, census and statistics, citizenship, criminal law,
currency and coinage, defence, foreign affairs,
Indian affairs, marriage and divorce, navigation
and shipping, patents and copyrights, penitentiaries,
postal service, public debt, residual powers, sea-
coast and inland fisheries, taxation, and trade and
commerce.
4. The responsibility for education was given to the
provinces in recognition of the special language
and religious rights of people in different parts of
the country. In Quebec, for example, the school
system was predominantly French and Catholic;
in Ontario, it was mostly English and Protestant.
5. The provincial and federal governments are only
allowed to pass laws that are within their jurisdic-
tion (intra vires). If the federal government passed
a law that stated that all children must attend
school until the age of 18, for example, the courts
would strike down this law as ultra vires because
education is a provincial responsibility. Similarly, if
the government of Prince Edward Island passed
a law requiring PEI residents to use provincially
produced postage stamps, then the courts would
strike down this law since postal service falls under
federal jurisdiction.
6. Because the Internet is a form of communication
and is international in scope, it would be logical
to assign this power to the federal government.
Federal jurisdiction also makes sense since the
Internet uses telephone lines and television cable
connections, which fall under federal jurisdiction.
Page 58
Figure 3.4
Students who feel that Lévesque was justified will
argue that the final deal was made “behind his back”
and without his consent. As a result, he was justified in
not signing the deal. Those who believe that Lévesque
was not justified in refusing to sign the deal will argue
that the powers Lévesque wanted for his province
would have weakened the federal system.
 Page 59
Consider This
Students who feel that the federal government should
intervene might point out the importance of fresh water
for survival and argue that Canada’s fresh water belongs
to all Canadians. For this reason, the federal govern-
ment should have the right to intervene if a province
decided to sell the fresh water within its boundaries
to another country. Students who feel that the federal
government should not intervene might argue that
because the Constitution gave the provinces power
over their resources, federal intervention would be
ultra vires and, therefore, wrong. They might also argue
that if a province like Alberta can benefit from its sup-
ply of oil, then another province should have the right
to benefit from its supply of fresh water, since both oil
and water are natural resources.
Page 61
Building Your Understanding
1. The Statute of Westminster expanded Canada’s
law-making powers by allowing Canada to make
its own laws independently. These laws could not
be overruled by Britain even if they contradicted
British laws. Also, Canada could make agreements
with other countries, such as trade agreements, with-
out British involvement or approval.
2. Problems associated with the British North America
Act included the following:
Table TR 3.1: Answer to Building Your Understanding #4, Page 61
-3
Key Elements Added to the Constitution Act, 1982
• a principle regarding the equalizing of services across
Canada
• a clearer interpretation of who was responsible for con-
trol and management of natural resources
• a formula indicating what terms would be necessary to
make future amendments to the Constitution
• a Charter guaranteeing individual rights and freedoms
• Canada had to ask the British to amend the Act
whenever changes were required.
• Under the BNA Act, there was confusion regard-
ing the division of powers, such as responsibil-
ity for natural resources,
• Although the federal government had been
awarded residual powers, there was confusion
over which level of government had jurisdiction
over responsibilities that were non-existent in
1867.
• The BNA Act did not contain any provisions to
protect the civil liberties of Canadians.
3. The Supreme Court of Canada ruled that the fed-
eral government did have the authority to patriate
the Constitution without provincial approval, but
to do so would be politically unwise and contrary
to the unwritten principles of the BNA Act.
4. The four key elements added to the Constitution
Act, 1982, and their importance are outlined in
Table TR 3.1 below.
5. The Supreme Court of Canada may have deter-
mined that Quebec is subject to the Constitution
because of its earlier decision that approval of the
provinces was not necessary in order to patriate
the Constitution. Therefore, the federal govern-
ment also had the power to include all of the
provinces under the Constitution Act. The Court
may have also felt that the creation of Canada was
an act of the British Parliament, not an agreement
between the provinces, so provincial consent was
not required to adopt the Constitution.
Importance
• ensures that all Canadians have equal access to essen-
tial services
• gives provinces powers over their resources (with some
restrictions)
• establishes a means of making future changes to the
Constitution
• sets out constitutionally protected rights and freedoms
CHAPTER 3 ◆ Government and Statute Law 81
 Page 62
Law in Your Life
The civil service administers all areas of government
services. Any time people deal with a branch of the
federal or provincial government, they are dealing with
the civil service. Students can list a wide variety of
examples, including getting a passport, getting a visa,
paying tax, applying for a Social Insurance Number,
and getting a health card.
Page 67
Figure 3.10
Lobby groups can use public protests or demonstra-
tions to draw public attention to a particular issue.
They may also circulate petitions and present them to
the government. They may lobby government minis-
ters for changes in a particular department or perhaps
seek help from opposition members to raise the issue
in Parliament (or the provincial legislature).
Page 68
Law in Action: Royal Commission on
Aboriginal Peoples, 1996
1. Some people might object to the idea of Aboriginal
peoples establishing a “third order of government”
because they may not see how it is possible to have
a separate group of self-governing peoples within
the Canadian nation. They may also raise the issue
that according to the Rule of Law, everyone should
be treated equally.
2. Students who agree might note that the role of the
government is to provide leadership and not to
simply follow the wishes of the majority. If the
Commission’s recommendations offer a fair solu-
tion to the Aboriginal peoples, then they should
be implemented.
Students who disagree might argue that Canada
is a democracy and, therefore, the will of the peo-
ple should determine government policy. As long as
there is no discrimination or unfairness in the gov-
ernment’s decisions, the will of the people should
rule.
82 UNIT 1 ◆ Our Legal Heritage
Building Your Understanding
1. The role of the executive branch is to propose new
laws, administer existing laws, set policy, and con-
trol government spending. The role of the legisla-
tive branch is to make new laws, change existing
laws, or repeal laws. The role of the judiciary is to
adjudicate disputes, interpret the laws, and decide
on punishments in Canada’s court system. The
courts also determine if a law is within the juris-
diction of a level of government and if it complies
with the Charter of Rights and Freedoms.
2. The role of the judiciary has become much more
important since the Charter of Rights and Freedoms
was entrenched in the Constitution in 1982. Since
all laws must adhere to the principles set out in
the Charter, the courts now have much broader
powers to strike down laws that infringe on rights
guaranteed in the Charter.
3. A government bill is a proposed new law that is
introduced by a Cabinet minister. Such bills have the
support of the government and are rarely defeated.
A private member’s bill is one that is introduced by
a member of the legislature who does not hold a
cabinet position. Since this type of bill does not
start with the support of the government, it is more
difficult to get it passed.
4. During second reading, the principle of the bill is
debated. If major flaws or objections to the bill are
found or if good suggestions are made, the bill is
usually revised by a committee.
5. A federal bill passes three readings in the House of
Commons. At first reading, the bill is introduced
and background information is supplied. At sec-
ond reading, the principles of the bill are debated.
At third reading, the content of the bill is debated.
No amendments can be made at this stage. If the
bill is passed, it moves to the Senate where it goes
through the same process. After the bill passes the
Senate, it is signed by the Governor General, who
gives royal assent, and the bill is proclaimed law.
There is no Senate at the provincial level. Once
a bill passes the three readings in the legislature, it
goes directly to the Lieutenant-Governor for royal
assent and is proclaimed law.
6. The role of the Senate is to act as a “sober second
thought” for legislation. The Senate generally examines
a bill in detail to determine if important changes need
 to be made. It is believed that since members of
the Senate are not elected, they will examine the
bill on its merits and not on its political appeal.
7. An existing law may be struck down if it violates
one of the fundamental rights or freedoms set out
in the Charter because constitutional law over-
rides statute law. For example, many provinces had
a Lord’s Day Act or Shops Closing Act that prohib-
ited businesses to operate on Sundays. Since this
law was based on Christian principles, it was ruled
to be unconstitutional because it violated the
Charter’s guarantee of freedom of religion.
8. A Royal Commission is a government-appointed
body that investigates a specific important national
problem. A lobby group is not appointed by the
government. It consists of a number of concerned
private citizens who wish to have laws changed in
favour of their cause.
Page 69
Law in the Extreme: Medical
research brings hope and
controversy
1. Possible questions that a Member of Parliament
might want answered may include the following:
• How will the system be monitored?
• Who will ensure compliance with the regula-
tions?
• What will the penalty be for breaking the guide-
lines?
• Will the legislation include provisions for auto-
matic review of the guidelines, given that tech-
nology changes rapidly?
Changes that might be proposed:
• allowing for the use of adult stem cells only
(reflects the ethical concerns of many people)
• banning the use of stem cells taken from sur-
plus human embryos (addresses the fear that
embryos will be created specifically to obtain
stem cells)
• allowing family members to donate stem cells for
their relatives (eliminates the fear of people
profiting from the sale of stem cells)
2. The United States legislation referred to is Bill
H.R. 2059: Stem Cell Research Act of 2001.
Students can use the Web site http://thomas.loc.gov
to locate a copy of the text of the bill. As in Canada,
the issue is far from over in the United States (see
the “U.S. Legislation Background Information”
material provided below). As an alternative activity,
students could research new developments on the
issue of reproductive technology legislation in
Canada and the United States (and/or another
country).
U.S. Legislation Background Information:
On June 5, 2001, Bill H.R. 2059 was introduced to
amend the Public Health Service Act to provide for
research with respect to human embryonic stem
cells. This Act, known as the Stem Cell Research
Act of 2001 had the provisions shown in Table TR
3.2 (see page 84).
In August 2001, President George W. Bush
announced that the federal government would
limit federal funding for embryonic stem-cell
research to stem-cell lines in existence at that time
(approximately 60). This would exclude discarded
embryos from in-vitro fertilization that were allowed
in Bill S. 2059. President Bush’s announcement
sparked controversy in the U.S. Congress. The
Health, Education, Labor and Pensions Committee
began holding hearings in September 2001 to take
a broad look at the issue of embryonic stem-cell
research and Bush’s decision.
In March 2002, proposed legislation was intro-
duced to criminalize embryonic stem-cell research in
the United States. This would mean that researchers
who continued their work would face criminal
prosecution. An alternative piece of legislation to
ban reproductive cloning but allow therapeutic
cloning—or somatic cell nuclear transfer (SCNT)—
was passed by the House of Representatives (Bill S.
2439: Human Cloning Prohibition Act of 2002).
In June 2002, hearings were still being con-
ducted. Hollywood actors Christopher Reeve, who
is paralyzed from the neck down as a result of a
fall from a horse, Kevin Kline, an advocate on
behalf of juvenile diabetes, and Michael J. Fox,
who suffers from Parkinson’s disease, testified
before Congress in support of SCNT.
The following Web sites provide useful informa-
tion related to this activity:
• www.cbc.ca/news/indepth/background/rgtech_
parttwo.html provides a discussion of Canada’s
laws on reproductive technologies and links to
CHAPTER 3 ◆ Government and Statute Law 83
 related information; includes links to Allan information on the topic of assisted human
Rock’s draft legislation and information on the reproduction; includes a link to a summary of
Canadian bill on assisted human reproduction how other countries are addressing the issue
released by Anne McLellan on May 9, 2002
• http://thomas.loc.gov allows the user to search for
• www.parl.gc.ca/37/1/parlbus/chambus/house/bills/ U.S. bills by keywords or bill number
government/C-56/C-56_1/C-56TOCE.html provides
• http://cbc.ca/cgi-bin/templates/view.cgi?/news/
the text of Bill C-56: An Act Respecting Assisted
2001/08/09/stemcells010809 contains a news brief
Human Reproduction (first reading)
on U.S. President George W. Bush’s August
• www.hc-sc.gc.ca/english/media/releases/2002/ 2001 announcement regarding embryonic stem-
2002_34.htm provides a summary of the provi- cell research
sions of Bill C-56 as well as links to related

Table TR 3.2: Answer to Law in the Extreme #2, Page 69

-3
Canada: Guidelines Proposed by the Commons Committee United States: Bill H.R. 2059
on Health

Prohibit
• creating human embryos specifically to obtain stem
cells
• creating stem cells through cloning
• combining human or non-human stem cells with a
human embryo or fetus
• donating stem cells for use on specific individuals,
except for self-donations
Prohibit
• creating human embryos
• reproductive cloning of a human being
• acquiring, receiving, or transferring human gametes of
embryos for valuable consideration if such acquisition,
receipt, or transfer affects interstate commerce

Allow Allow
• cells taken from a human fetus or amniotic fluid after • human embryonic stem cells may be derived only from
an abortion in-vitro fertilization clinics with written informed
• cells taken from an umbilical cord or placenta of a consent of the progenitors
newborn (with informed consent only)
• adult stem cells taken from other human tissue (with
informed consent only)
• cells taken from surplus human embryos created for
reproductive use

84 UNIT 1 ◆ Our Legal Heritage

Looking Back
Pages 70–71
Quick Quiz
1. a) False. Ultra vires means beyond the govern-
ment’s jurisdictional power; b) True; c) False.
Residual powers are assigned to the federal gov-
ernment but are not specifically identified; d) False.
A bill is a proposed law; e) False. Prime Minister
Trudeau was in office when the Constitution was
patriated; f) True; g) True; h) False. These are two
sections of the Constitution Act; i) False. In a uni-
tary system there is only one level of government
that holds all of the power; j) False. This was a
British statute that allowed all of the Dominions
more power; k) False. Shared cost agreements
were devised to allow two levels of government to
share the cost of programs in areas not identified
in the BNA Act; l) True.
Checking Your Knowledge
2. Canada rejected the unitary model of government
in Great Britain because since Canada is a much
bigger country than Great Britain, having power
centralized in the federal government was seen as
impractical. Also, Canada had two distinct found-
ing cultures (French and English) that had to be
accommodated.
The American model of a federal union was
also considered unsuitable for Canada because it
gave too much power to the individual states, power
that may have contributed to a civil war in that
country.
3. Residual powers refer to the powers that are not
specifically listed in the Constitution as being
assigned to one level of government or the other.
The residual powers fall under the central (fed-
eral) government’s jurisdiction.
4. Intra vires refers to legislation that is created within
the authority of a legislative body. For example,
s. 93 of the Constitution Act assigns the power
over education to the provinces, which means that
provincial governments determine policy for edu-
cation in their province. Ultra vires refers to legis-
lation that has been created that is beyond the
authority of the legislative body. Should the fed-
eral government create legislation on educational
matters that are within the provincial jurisdiction,
such legislation could be declared ultra vires, and
therefore, not legal.
5. The Principle of Equalization is found in s. 36 of
the Constitution Act, 1982, and it states that essen-
tial public services of reasonable quality should be
available to all Canadians. This principle could be
applied in the areas of heath care and education.
For example, people living in a smaller province
like Newfoundland and Labrador should not be
denied health-care services that are available to
people living in larger, wealthier provinces.
6. The BNA Act gave responsibility for natural
resources to the provinces. Fishing, however, came
under federal jurisdiction. In the past, both levels of
government have claimed authority over other
resources such as uranium, oil, water, and natural
gas. Under the Constitution Act, 1982, the provinces
have control over natural resources such as natural
gas, but there are some restrictions placed on this
control.
7. The amending formula included in the Constitution
Act, 1982, provided that any changes to the
Constitution required the approval of the Parliament
of Canada plus two-thirds of the provinces repre-
senting 50 percent of the population or more. In
the case where only one province is involved, that
province and the Parliament of Canada need only
approve the change.
8. The Meech Lake Accord did not receive the
required approval of all 10 provinces and the
Parliament of Canada because
• it failed to acknowledge Aboriginal rights;
• strong opposition came from the West-based
Reform Party;
• many Canadians objected to conferring any kind
of special status on one province (Quebec); and
• former prime minister Pierre Trudeau spoke out
against the agreement, stating that it gave too
much power to the provinces and weakened the
federal government.
CHAPTER 3 ◆ Government and Statute Law 85
 The Charlottetown Accord was defeated in a
national referendum because
• some people in Quebec feared that the provi-
sion for Aboriginal self-government would affect
large portions of their province;
• many in Quebec felt that the accord did not
give them enough power; and
• many Canadians outside Quebec felt that the
accord gave Quebec too much power.
9. a) After a bill has been passed by the Senate, it
goes to the Governor General where it receives
royal assent and is proclaimed to be in force.
The bill then becomes an Act, is given a Statute
number, and is reprinted.
b) If Parliament adjourns before a vote on the bill is
taken, then the bill “dies on the floor,” which
means that it is no longer under consideration
to become law. If the government still wanted
to pass this legislation, then it would have to
reintroduce the bill in the next parliamentary
session.
c) After a bill is passed by the House of Commons,
it moves to the Senate where it goes through
the three readings.
d) If a bill is defeated in the House of Commons,
then the bill “dies” and is no longer under con-
sideration to become law.
10. The purpose of a Royal Commission is to conduct an
impartial investigation of specific national problems.
A commission extensively examines an important
issue of national concern and then makes recom-
mendations to the government on how to deal with
these problems. The government may then choose to
implement those recommendations by changing the
law.
Developing Your Thinking and
Inquiry Skills
11. a) The federal government is responsible for
employment insurance.
b) The federal government is responsible for
patents.
c) The municipal government is responsible for
such local regulations.
86 UNIT 1 ◆ Our Legal Heritage
12. Examples of proposed legislation in criminal law
could include the need to deal with the newly per-
ceived threat of terrorism. Changes to contract
law may be required to deal with the growing use
of the Internet. Family law may need to be changed
to deal with the issue of same-sex marriages.
Students’ plans could include contacting the office
of a local MP or MPP/MLA to get advice on how
to draft legislation and how to get a bill through
the legislative process. Plans could also include
contacting a lobby group or forming one to bring
greater public awareness to the need for the pro-
posed legislation.
13. “Second Chamber” refers to the House of Lords
in Britain (the Senate, in Canada). In Abbé Sieyè’s
opinion, a non-elected body does not have the
legitimacy to deal with legislation. Consequently,
it is of no importance whether the chamber agrees
or disagrees with legislation. Students may sup-
port the position that a non-elected body should
not have a say in legislation. Others may feel that
having a non-elected body review legislation
ensures greater objectivity.
14. Trends that could lead to legislation might include
the following:
• talking on a cellphone while driving
• using Rollerblades on major roads
• employees using the Internet for personal use
while at work
Students can present their findings in the form of
a written report. Student reports can be assessed
using Generic Assessment Master G-2: Rubric:
Research Report. Assessment
COPY
Communicating Your Ideas
15. Arguments against the power of the Senate:
• The Senate is an appointed body and has no
place in a democratic society.
• The Senate is not answerable to the people, so
it cannot defeat legislation that reflects the will
of the people.
• Senators do not have direct communication with
Canadians, so they are not familiar with the
general wishes of the people.
 Arguments in support of the power of the Senate:
• The Senate acts as a “sober second thought” for
all legislation. Because senators are not elected,
their concerns are not political and they are bet-
ter able to determine what is in the best inter-
est of the country.
• The Senate is able to carefully examine legislation
for accuracy and then consider its overall impact.
• The Senate provides regional representation in
Parliament and ensures that the regional inter-
ests are considered in the legislative process.
Student presentations can be assessed using
Generic Assessment Master G-7: Rubric: Oral
Presentation. Assessment
COPY
16. The group could be a single-issue group (e.g., a
neighbourhood group lobbying to get a street light
installed at a corner) or a long-standing one that
promotes the specific interests of a group of peo-
ple (e.g., business people, women, youth, the
elderly, those with disabilities, single parents, teach-
ers, or pet owners). Student reports can be assessed
using Generic Assessment Master G-2: Rubric:
Research Report. Assessment
COPY
17. The town-hall meeting may require two periods.
The first period could be for research and the sec-
ond period for the actual meeting. The instructor or
a student could act as the moderator. Students
should also be appointed to record minutes from
the meeting. Each group should make a two-minute
opening statement that outlines its position on the
issue. Each group should then be given a chance to
outline one of its main arguments. The other groups
can respond to these arguments. Questions and
comments should be welcomed from the audience.
The meeting can be evaluated using Assessment
Master 3-1: Checklist: Group Assessment of Town-
Hall Meeting.
As a follow-up activity, students could be asked to
write a one-page reflection paper on their experi-
ence of the town-hall meeting. The paper would dis-
cuss the purpose of the meeting, the groups involved,
their particular group’s position on the issue, and
the results of the meeting. These papers could be
assessed using Assessment Master 3-2:
Rubric: Student Reflection on Town-Hall Meeting.
COPY Assessment
Putting It All Together
18. Students could be instructed to research this ques-
tion and present their findings in an essay.
Arguments that the federal government has too
much power:
• Provincial governments are more in touch with
the demands of the various regions than is the
federal government.
• The most important issues facing the people of
Canada fall under provincial authority (labour,
education, and health care).
• The clause does not reflect the current reality
in Canada. Provincial governments are more
developed now than they were in 1867. They
have acquired more expertise and play a greater
role in governing their constituents than they
did when the clause was originally written.
Arguments that the federal government does not
have too much power:
• A threat to the nation’s peace and security
requires a unified response from the govern-
ment that has jurisdiction over national matters
such as defence and foreign affairs.
• The response to a threat to peace or order must
ultimately rest with one power in order to avoid
confusion or conflict among provincial govern-
ments.
• Canada’s participation in international treaties
(disarmament, environmental, security) needs
to be unified and negotiated by one government,
not several, in order to ensure protection and
peace throughout the country.
Generic Assessment Master G-11: Rubric: Essay
can be used to evaluate student responses to this
question. Assessment
COPY
Page 72
Cases
Teaching Suggestions: Each of the cases on pages 72–73
of the student text and the Additional Cases provided
on pages 93–94 of this resource could be analyzed by
a group of students (five cases with approximately five
or six students in a group) and presented to the class
using the outline on page 88:
CHAPTER 3 ◆ Government and Statute Law 87
a) Relevant facts (the incident, companies or gov-
ernments involved, in your own words)
b) Legal question—ultra vires or intra vires
c) Answers to the questions
d) Reason for the judgment
Student work can be assessed using Generic
Assessment Master G-3: Rubric: Case Analysis and
Generic Assessment Master G-10: Rubric: Case
Presentation. Assessment
COPY
Guided Case: R. v. Hydro-Québec
1. The Supreme Court determined that the provi-
sions of the Canadian Environmental Protection
Act are within the powers (intra vires) of the
Parliament of Canada. The majority decision of
the Court was based on the fact that s. 91 of the
Constitution Act, 1867, gave Parliament the power
to make criminal law in the widest sense. The
Court determined that protecting the environment
by prohibiting toxic substances falls within the
meaning of enacting criminal law. PCBs are a
highly toxic substance that can pose serious health
risks to humans and animals. The Parliament of
Canada is, therefore, within its authority to pro-
tect the people of Canada by enacting legislation
that falls under the power of criminal law.
2. The dissenting opinion indicated that the provi-
sions of the Canadian Environmental Protection
Act were not intended to prohibit environmental
pollution but simply to regulate it. Therefore, the
provisions fail to meet the test of having a legiti-
mate criminal purpose.
Solutions to Additional Cases
Pages 93–94 of this teacher resource
Additional Case: Reference re Goods
and Services Tax
1. The government of Alberta argued that by impos-
ing a tax on goods and services, the federal
government was interfering with provincial juris-
88 UNIT 1 ◆ Our Legal Heritage
3. The decision could lead to a variety of implica-
tions for Hydro-Québec. The power corporation
will need to adhere to the regulations set out in
the Canadian Environmental Protection Act. The
penalties imposed on the company will also need
to be paid. The company must follow both provin-
cial and federal environmental guidelines in the
future (with respect to operating its facilities and
expanding its operations). The decision means that
Hydro-Québec and all utilities across Canada will
have to follow similar regulations with respect to
the discharge of PCBs into the environment.
Page 73
Guided Case: R. v. Crown
Zellerbach Canada Ltd.
1. The Court considered the Ocean Dumping Control
Act a matter of national concern because marine
pollution is an issue that goes beyond provincial
boundaries and may have international implica-
tions as well.
2. The national concern doctrine is significant since
it may be used to expand the powers of the central
(federal) government. This doctrine allows the
Parliament of Canada to enact legislation on any
subject matter that may be considered of national
concern. Parliament is not limited to the powers
that are expressly listed in the Constitution Act,
1867.
diction under s. 92(13) of the Constitution Act,
which gives the provinces jurisdiction over property
and civil rights. Since the federal government was
imposing a tax on property in Alberta, the
Government of Alberta argued that this violated
s. 92(13) of the Constitution Act.
2. The Supreme Court of Canada ruled that the pur-
pose of the GST Act was to raise revenue for the
 federal government. Since the powers assigned to
federal government include “The raising of money
by any mode or system of taxation” [s. 91(3)], the
federal government could impose this particular
tax. The Court noted that while the tax may have an
effect on matters within provincial jurisdiction over
property and civil rights, it was not an infringement
on provincial jurisdiction.
3. If the province of Alberta had been successful, the
Supreme Court would have ruled the Act uncon-
stitutional. The federal government would then
have had to introduce new legislation.
Additional Case: Nanaimo (City) v.
Rascal Trucking Ltd.
1. Municipal governments receive their power from
the provincial governments. Section 92 of the
Constitution Act assigns to the provinces jurisdic-
tion over municipal institutions.
2. The principle of intra vires is illustrated in this case
because the province created the Municipal Act,
which assigns certain powers to the municipalities
in British Columbia. The City of Nanaimo passed
resolutions that fell within the jurisdiction assigned
by the province, so the resolution is intra vires.
Extension Activities
Activity 1
Current Events Report
Purpose
This activity is intended to help students develop an
awareness of the importance of constitutional law and
the law-making process in Canada by examining news-
paper reports on current events.
Resources
• Newspapers
• Internet
• Generic Assessment Master G-12: Rubric:
Current Events Report Assessment
COPY
Additional Case: Kitkatla Band v.
British Columbia (Minister of Small
Business, Tourism and Culture)
1. The Kitkatla band challenged the legality of the
site alteration permit because it did not want the
trees cut. The Band argued that the power to grant
such a permit was ultra vires the province because
Aboriginal rights based on the existence of cul-
turally modified trees in the area fall under fed-
eral jurisdiction.
2. The minister based his argument on the fact that
the permit-granting procedure was simply about
the granting of permits for logging in restricted
areas. The Kitkatla Band was basing part of its
argument on the constitutional validity of the
Heritage Conservation Act, and this was an issue
that could only be properly decided by the courts.
3. The Supreme Court dismissed the appeal because
the Heritage Conservation Act fell within the juris-
diction of the provincial government. Since the
Heritage Conservation Act dealt with issues affect-
ing property and civil rights rather than Aboriginal
rights, the Act was within provincial jurisdiction.
Teaching Strategies
a) Introduce this activity at the beginning of Chapter
3: Government and Statute Law. Encourage stu-
dents to remain up-to-date on events in the news by
reading the newspaper daily. Instruct students to
follow the newspaper over the next 14 days and to
clip articles dealing with any issues involving gov-
ernment and law in Canada. These articles could
include the passage of a new law, the appointment
of new cabinet ministers or other government offi-
cials, or changes to the Constitution. Students
should have a minimum of five articles by the end
of the two-week period.
b) Have students submit a “Current Events Report”
that includes a copy of each article (identifying
the newspaper, date, page, and author), a brief
CHAPTER 3 ◆ Government and Statute Law 89
 summary of the article, and an explanation of the
aspect of government and law to which the article
is related. Alternatively, students could present their
findings in class rather than submit a written report.
Students should identify the source of the infor-
mation, explain the content of the article, and iden-
tify the level of government involved and the legal
aspects of the issue described in the article.
Activity 2
Case Report
Purpose
This activity is designed to help students develop their
analytical and communication skills. Students will have
an opportunity to review an actual case from the court
reports, summarize the case, and report their findings
to the class.
Resources
• Law in Action, “The Attorney General for Alberta
v. The Attorney General of Canada” (page 56);
“R. v. Hydro-Québec” (page 72); “R. v. Crown
Zellerbach Canada Ltd.” (page 73)
• Internet
• Generic Assessment Master G-3: Rubric: Case
Analysis Case Analysis
COPY
Teaching Strategies
Note: The case studies from pages 56, 72, and 73 of
Law in Action are to serve as a model for a student
case report. These cases should be completed and
taken up in class prior to having students work on the
extension activity.
a) Have students review the cases listed above.
b) Ask students to work with a partner to prepare a
case report on a constitutional case following the
model used in the text. They should select a consti-
tutional case from either the provincial superior court
or the Supreme Court of Canada (case reports are
available on-line).
c) Have students present their completed case reports
to the class and act as facilitators for the discussion
of the “Analysis” questions they devised for their
cases.
90 UNIT 1 ◆ Our Legal Heritage
Activity 3
Division of Power
Purpose
This activity allows students to develop research and
communication skills as they examine a conflict
between the federal and provincial governments on a
specific issue.
Resources
• Library Resource Centre
• Generic Assessment Master G-1: Rubric: Group
Work Assessment
COPY
• Generic Assessment Master G-7: Rubric: Oral
Presentation
Teaching Strategies
a) Book the Library Resource Centre in advance of
this activity. Provide the teacher-librarian with a
copy of the assignment to assist the librarian in
finding appropriate resources (books, magazines,
Web sites, etc.) for students.
b) Have students prepare a research report (a maxi-
mum of three pages) on a federal–provincial con-
flict. Students may select from a variety of topics,
depending on local interests. Some possible topics
include Alberta’s dispute with Ottawa in 1980 over
the National Energy Program; Quebec’s dispute
with the federal government over the funding of the
Canada Pension Plan; health care (almost all
provinces share this concern); Ontario’s dispute
regarding the Youth Criminal Justice Act; or any
other suitable issue. Historical conflicts might also
be investigated, such as the early constitutional bat-
tles in Hodge v. The Queen, the Local Prohibition
case, or other cases that can be found in books on
Canada’s constitutional history.
Activity 4
Royal Commissions
Purpose
This activity is designed to help students develop their
research and communication skills in a co-operative
setting. Canada has a long history of using Royal
Commissions as a method of dealing with issues of
public concern. Students will examine a specific Royal
Commission and determine how it affected Canada’s
laws.
Resources
• Library Resource Centre
• CBC News in Review videotape, February 1998,
“The Krever Inquiry: Assigning Blame”
• Generic Assessment Master G-2: Rubric:
Research Report Assessment
COPY
Teaching Strategies
a) Book the Library Resource Centre for students to
conduct research during this activity. If time is avail-
able, show the CBC News in Review video segment
from February 1998 entitled “The Krever Inquiry:
Assigning Blame.” This video will give students an
understanding of how a Royal Commission works
and what recommendations the Commission made.
After showing the video, inform students that while
many of the recommendations set out by the inquiry
were enacted (for example, the Canadian Blood
Services now looks after Canada’s blood supply),
others were not.
b) Divide the class into groups of four. Assign a Royal
Commission to each group to examine. Note: You
will need to determine a suitable number of Royal
Commissions in advance and work with the
teacher-librarian to ensure that resources on the
commissions are available for students. Some com-
missions are more directly related to law than others
(such as the Native Justice Inquiry in Manitoba, for
example), but current events or local interest
should also be taken into consideration when deter-
mining the commissions to be examined.
c) Instruct each group to prepare a class presenta-
tion outlining the details and impact of its assigned
commission. In their presentations, students will
need to include reasons why the commission was
established, its mandate, a summary of its find-
ings and recommendations, and how the law has
been changed as a result of the commission (how
many of its recommendations were implemented).
Students can use visual aids (graphs, charts, pho-
tographs) and appropriate media (presentation soft-
ware, video, etc.) to make their presentations. Each
presentation should be 15 minutes in length.
d) Following the presentations, instruct students to
assess the effectiveness of Royal Commissions in
the law-making process. Student assessments
should be two pages in length and should include
specific examples.
CHAPTER 3 ◆ Government and Statute Law 91
 Additional Resources
Books
The Canadian Encyclopedia is an excellent source of
information on all aspects of Canadian constitutional
law. It contains articles on many constitutional topics,
such as patriation and the Meech Lake Accord, and
biographies of the key figures involved, from John A.
Macdonald to Pierre Elliott Trudeau. Articles are fol-
lowed by a list of suggested readings. If the Canadian
Encyclopedia is not available in your Library Resource
Centre, it can be accessed on-line through the Historica
Foundation at www.histori.ca.
Eugene Forsey was Canada’s foremost constitu-
tional expert. His books and articles are useful for both
teachers and students studying Canada’s system of
government and the Constitution.
Magazines
LawNow is a bi-monthly magazine published by the
legal studies program at the University of Alberta. It is a
relatively inexpensive resource to which many school
libraries or social studies departments subscribe. Sample
articles and information are available at www.extension.
ualberta.ca/lawnow.
Maclean’s is a good source for background infor-
mation and discussion of Canadian constitutional
issues. Special programs for using this magazine in the
classroom are available. Further information can be
obtained from Rogers Publishing, Educational Services,
777 Bay St., 8th Floor, Toronto, Ontario M5W 1A7.
92 UNIT 1 ◆ Our Legal Heritage
Other Resources
• Newspapers are a valuable source of up-to-date
information on constitutional issues. Special pro-
grams for class use are available from most of
Canada’s national daily papers. These programs offer
special rates for class sets of papers.
• The CBC’s News in Review educational videos
examine major news events. The series is available
from CBC Educational Sales, Box 500 Station A,
Toronto, Ontario, M5W 1E6 or from www.tv.cbc.ca/
newsinreview.
• The National Film Board has a number of films
covering the history and background of Canada’s
Constitution and government. The following videos
are of particular interest:
– The Champions—a three-part documentary
series that examines the roles played by René
Lévesque and Pierre Elliott Trudeau in shap-
ing Canada’s constitutional history
– Never-Endum Referendum—looks at the Quebec
Referendum of 1995
– The Road to Patriation—looks at the patriation
of the Constitution in 1982 and examines the
motives of some of the main participants in this
event
– Our Constitution: The Law of the Land—covers
the workings of Canada’s Constitution and
includes segments on how constitutional laws
are made and the development of Canada’s inde-
pendence from Britain
 Additional Cases
Reference re Goods and Services
Tax, [1992] 2 S.C.R. 445
The Parliament of Canada passed legislation enacting
the Goods and Services Tax (GST) in 1990. The GST
is a federal tax applied to most goods and services, and
the rate is 7 percent. Vendors who sell taxable goods,
including provinces, are to collect the tax and submit
it to the federal government. The government of Alberta
challenged the validity of the GST legislation in the
courts, claiming that it was ultra vires the Parliament of
Canada. Alberta raised a number of questions in its
case against the federal government, including whether
the system of collecting the tax constituted an infringe-
ment of provincial jurisdiction of regulation of prop-
erty and civil rights. Under s. 92(13) of the Constitution
Act, 1867, the provinces have jurisdiction over property
and civil rights.
The Court of Appeal of Alberta ruled that the leg-
islation was not ultra vires. The case was then appealed
to the Supreme Court of Canada.
The Supreme Court of Canada found that the leg-
islation was not ultra vires the Parliament of Canada,
and the appeal by the Government of Alberta was dis-
missed. In its decision, the Court recognized that the
GST Act has significant effects on matters within
provincial jurisdiction under property and civil rights.
However, the sole purpose of the tax is to raise rev-
enue for the federal government and s. 91(3) of the
Constitution Act gives the federal government jurisdic-
tion over “the raising of money by any mode or system
of taxation.” Therefore, the Supreme Court decided
the intrusion upon provincial jurisdiction is justified.
1. On what basis did the government of Alberta base
its claim that the GST Act was ultra vires the
Parliament of Canada?
2. Explain the Supreme Court of Canada’s decision in
this case.
3. If the province of Alberta had been successful,
what would have happened to the GST Act?
© Pearson Education Canada 2003. LAW IN ACTION. The right to reproduce this page is restricted to the purchasing school.
Nanaimo (City) v. Rascal Trucking
Ltd., [2000] 1 S.C.R. 342
Rascal Trucking Limited leased a parcel of land located
within the city of Nanaimo from Kismet Enterprises
Incorporated. The city granted Rascal Trucking a per-
mit to put 15 000 cubic yards of soil on the site.
Residents who lived in the area of the site complained
about dust and noise emission from the site, and a city
inspector recommended that the soil be removed. The
Nanaimo city council passed two resolutions declar-
ing the pile of soil a nuisance according to s. 936 of
the Municipal Act and ordered Kismet and Rascal
Trucking to remove the soil. Neither party complied
with the order, so the city brought a petition for a dec-
laration that it (the city) was entitled to access the
property in order to remove the pile of soil.
The city was granted its petition. Kismet and Rascal
appealed the decision to the Appeal Court of British
Columbia and they were successful. Consequently,
the resolutions declaring the pile of dirt a nuisance
and the court orders allowing the city to remove the
soil were quashed. The city appealed this decision to
the Supreme Court of Canada.
Lawyers for the city argued that s. 936 of the
Municipal Act allowed municipalities to declare “… a
building, structure or erection of any kind, or a drain,
ditch, watercourse, pond, surface water or other mate-
rial or thing, in or on private land or a highway, or in or
about a building or structure, a nuisance …” The city
therefore held that it was within its authority to declare
a pile of soil a nuisance and order its removal. The
Supreme Court of Canada allowed the appeal and
upheld the municipal resolutions ordering the removal
of the soil.
1. With respect to the Constitution, how do municipal
governments get their power to make bylaws?
2. How does this case illustrate the principle of intra
vires?
93
 Additional Cases
Kitkatla Band v. British Columbia
(Minister of Small Business, Tourism
and Culture) (2002), S.C.C. 31
International Forest Products Limited (Interfor) held
a forest licence to carry out logging activities over land
in the central coast of British Columbia. The Kitkatla
Band claimed Aboriginal rights in this area and had
been engaged in treaty negotiations with the province
of British Columbia. Interfor provided the Kitkatla
Band with notification of its development plans in early
1994. Interfor hired a firm of archaeologists to inves-
tigate the area because there was concern about the
possible presence of Aboriginal heritage sites and
objects, including culturally modified trees (CMTs),
in the area to be harvested. CMTs are trees that have
been altered by Aboriginal peoples as part of their tra-
ditional use. These trees have cultural, historical, and
scientific importance.
The archaeologist reported the presence of a sig-
nificant number of CMTs in the area Interfor planned
to harvest. The minister of small business wrote the
band and invited their written submission. The band
did not respond by the deadline, and the minister
granted a site alteration permit without having con-
sidered any archeological reports.
94 © Pearson Education Canada 2003. LAW IN ACTION.
The band challenged the legality of the permit,
claiming that the Heritage Conservation Act, under
which the permit was granted, was ultra vires the
province. The band’s legal challenge was dismissed.
The band then sought a court order that would pro-
hibit the minister from granting the site alteration per-
mit. The band was asserting a claim of Aboriginal rights
based on the existence of the CMTs.
At trial, the minister argued that the issue of
Aboriginal rights fell outside the scope of a provincial
government’s permit-granting procedure. The judge
agreed with the minister’s position, and the band’s peti-
tion was dismissed. The band appealed the decision.
The appeal was dismissed. The case was then appealed
to the Supreme Court of Canada.
The Supreme Court of Canada dismissed the band’s
appeal, finding that the disputed section of the Heritage
Conservation Act was intra vires the province and fell
within provincial jurisdiction over property and civil
rights as defined in s. 92(13) of the Constitution Act.
1. Why did the Kitkatla Band challenge the site alter-
ation permit issued by the minister?
2. The minister argued that the issue of Aboriginal
rights fell outside the scope of a permit-granting
procedure. What does this argument mean?
3. Why did the Supreme Court of Canada dismiss
the Kitkatla Band’s appeal?
The right to reproduce this page is restricted to the purchasing school.