Canada: A Country Without a Constitution

I've come across an interesting and provocative article by Walter F. Kuhl, Member Of Parliament, Jasper-Edson 1935-1949. What he proposes is that when the Provinces of Canada were made completely sovereign by the Statute of Westminster on December 11, 1931 (by section 7, paragraph 2), they have in no part adopted a Constitution that was ratified by the people of Canada.

I'm still in the process of re-reading the article and cross referencing what is presented, but implore anyone here to also read and voice there thoughts.

I viewed a copy of the article from the DetaxCanada website, which also proposes suposed lawful information about the Income Tax System, and the Canadian Government, in right of the Queen. Since this is considered to be a government document, I am currently looking for a source that is directly archieved by the government. Although considering the nature, I can only assume it will not be easy to find.

Regardless that the above site may be immediately critised for it reliability, as just another "tax evasion scheme", it seems to me that they only cite real law and it's definitions. It also clearly states that "If there is any representative of any department of government, Canadian or American, who can provide proof that there is any information offered on this website which is incorrect or erroneous, then please feel free to inform the webmaster, and it will be promptly corrected or removed from the internet." So I assume that an individuals comments would also be considered.

My main concern at the moment is with this one particular document.

Your comments?

[edit on 9-3-2006 by deafence#]

So what exactly does this mean? Are we at risk for something? (like being taken over by the states.)

no canada does not need a constitution to exsit.its is belonged to b.n.a act and we are a owned by the queen as a common wealth country.the government of canada is delegated to run the country but we still have old laws to protect us from outside interests.good old history and laws are out there look them up.......

Mr. Kuhl seems to have written this in 1977. Wouldn't the ratification of the Canada Act, 1982 make this information out of date?

remember though, quebec has not signed on to our "constitution"

From memory:

The British North America Act was enacted by Britain in 1867 as the founding Constitution of Canada.

In 1982 the Constitution was re-patriated to Canada with the enactment of the Constitution Act. This Act included the Charter of Rights and Freedoms (link) to augment/replace the Bill of Rights.

I believe that this Act also removed the legal possibility that the British Parliament/British House of Lords could repeal the British North America Act and essentially "undo" Canada.

It also made the Canadian Supreme Court the highest court of appeal. Prior to this, the House of Lords and Privy Council were the appeal venue of last resort. The Crown was kept as the "Head of State" and the role is largely ceremonial with a Governor General appointed by the Canadian Parliament to represent Canada (another largely figurehead/ceremonial position)

A bit more info:

Prior to the patriation of the Canadian Constitution in 1982, the Canadian Constitution consisted of a number of British statutes. Most important was the British North America Act, 1867 and its various amendments.
...

The "Implied Bill of Rights"

Serious questions about civil liberties arose again in the 1930's when Alberta legislation interfered with press freedoms. This legislation attracted the condemnation of the court in Reference Re Alberta Statutes, [1938] S.C.R. 100. The legacy of this case was an important line of jurisprudence which the constitutional writers later called the "implied bill of rights". The most important cases are Reference Re Alberta Statutes, supra, Switzman v. Elbling, [1957] S.C.R. 285 and Saumur v. The City of Quebec, [1953] 2 S.C.R. 299.

The impact of these cases, particularly an obiter statement of Cannon J. in the Alberta Press case, suggested that there are certain civil liberties implicit in Canada's Constitution - a package of freedoms somewhat similar to that of the later Canadian Bill of Rights and the Canadian Charter of Rights of Freedoms.

The Canadian Bill of Rights

The Canadian Bill of Rights is a federal statute enacted in 1960.
..
Patriation of the Constitution and the Charter

The Canadian Bill of Rights having been enacted in 1960, the courts had some twenty years of experience with it (before the proclamation of the Charter of Rights).

From: Canada's Constitution prior to 1982

Joseph Magnet is a Constitutional Lawyer and author of a leading textbook used in Canadian Law Schools. He was also my Constitutional Law professor at University of Ottawa.

Since Canada never had a revolution and a clean break with the British Crown our legal status was not conclusively determined until 1982 with patriation of the Constitution and the Charter.

But it's not like we were some sort of lawless Nation we were just governed by British Statutes, the principles of Common Law and the Civil Code (in Quebec). I'm glad we finally worked it all out. It took a lot longer but it was a lot less bloody than other countries.

For more info: www.constitutional-law.net...

By the way Quebec may have refused to sign the Charter for political reasons (the seperatists were in power in the Province at the time), but they are bound by it anyway and regularly apply it in their courts.

In fact, they are the only jurisdiction to use one of it's most controversial provisions known as the "notwithstanding clause".
.

[edit on 3/9/2006 by Gools]

Ya, I pretty much second what Gools said. Canada doesn't have a single document known as "the constitution", but rather, we have a collection of documents that together serve the same purpose that a constitution would. Gools named all of those documents that I could remember already.

i apologise if the title of this thread was misleading in any way, as this is not what i intended.

what i'd like to get onto is the following:

Originally posted by flukemol
no canada does not need a constitution to exsit.its is belonged to b.n.a act and we are a owned by the queen as a common wealth country.the government of canada is delegated to run the country but we still have old laws to protect us from outside interests.good old history and laws are out there look them up.......

the author of the first site i posted asks this:

The British North America Act, 1867, Section 2 states:

2. The provisions of this Act referring to Her Majesty the Queen
(Victoria) extend also to the heirs and successors of Her majesty, Kings and
Queens of the United Kingdom of Great Britain and Ireland.

In 1893, the Imperial Parliament passed the Statutes Revision Act wherein
Section 2 of the BNA Act, 1867 was repealed.

Queen Victoria died in 1901. What legal provision allowed any heirs and
successors to Queen Victoria to assume the position of Monarch over Canada?

if this is true, then would not the entire basis of the monarchy having any authority over canada be refuted.

Originally posted by Gools
In 1982 the Constitution was re-patriated to Canada with the enactment of the Constitution Act. This Act included the Charter of Rights and Freedoms (link) to augment/replace the Bill of Rights.

i came across this on the canadian human rights program web site, so please tell me if im interpreting it wrong in any way:

Part I of the "Guide to the Canadian Charter of Rights and Freedoms" states, and I quote the following:
link

"Who enjoys Charter rights?

Generally speaking, any person in Canada, whether a Canadian citizen, a permanent resident or a newcomer, has the rights and freedoms contained in the Charter."

while Part II of your "Guide to the Canadian Charter of Rights and Freedoms" states, and I quote the following:
link

"The purpose of this section is to make it clear that the Charter only applies to governments, and not to private individuals, businesses or other organizations."

So then is it correct to state that a person in Canada is not a private individual, and must be some part of the Government, a legal entity/fiction for it to benefit from the Charter?

Originally posted by Gools
Since Canada never had a revolution and a clean break with the British Crown our legal status was not conclusively determined until 1982 with patriation of the Constitution and the Charter.

didnt the statute of westminister provide this clean break to the provinces, and give them the authority to confederate their own constitution, apart from Britain, which the BNA act previously had denied?

"A Federal Union in Canada can be created only by completely independent and autonomous provinces, which section 7 (2) provides for." link

from that statute: link

7. "(2) The provisions of section two of this Act shall extend to laws made by any of the Provinces of Canada and to the powers of the legislatures of such Provinces."

so, what i wanna know is did we have the opportunity to become completely sovereign from britain, but blew our chance, by not utilising our ability to, and thus allowing the continued rule of the british installed canadian parliament?

[edit on 10-3-2006 by deafence#]

I retract my statement on the Charter, as recent debate with a friend has led me to believe I was entirely out of context.

However, I still would like to discuss the BNA question.

I recently e-mailed that exact question to the Privy Council Office in Ottawa and here was his response:

Good afternoon

The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.

Under the operational provision, the Government of Canada is vested in Her Majesty the Queen. Section 2 only "defined" who the Queen was; this was superfluous and so it was repealed in 1893 so that the definition would not have to be continually modified whenever changes occurred in the Empire - since the original text read "Kings and Queens of the United Kingdom of Great Britain and Ireland."

And section 41 of the Constitution Act, 1982 stipulates that any constitutional
amendment in relation to the office of the Queen requires unanimity.

Thank you

General Inquiries / Demandes de renseignements généraux

Privy Council Office / Bureau du Conseil privé

...etc...

www.abovetopsecret.com..." target="_blank" class="postlink" rel="nofollow"> mod edit to use external quote code

Here he suggests that it's simply a matter of convienience, so that it didn't "have to be continually modified whenever changes occurred in the Empire". Isn't this just a BS interpretation for what we see as plain english in Section 2?

2. The provisions of this Act referring to Her Majesty the Queen
(Victoria) extend also to the heirs and successors of Her majesty, Kings and
Queens of the United Kingdom of Great Britain and Ireland.

Does not "extend also to the heirs and successors" provide that no changes need be made in the first place, and that it clearly passes on authority in the Empire (ie: Queen Victoria II)?

And if it was repealed by the Statute Revision Act in 1893, upon what authority comes "hereby declared to continue and be vested in the Queen?".

I am in the works of forwarding this question with the reply I recieved to the Queen's Secretary for comment.

Thoughts on this?

[edit on 19-3-2006 by deafence#]

[edit on 19-3-2006 by DontTreadOnMe]

"Changes in the empire" is not limited to change of monarch. It includes changes in the title, United Kingdom of Great Britain and Ireland ceased to exist when Ireland became independant.

For the strictist of parliamentarians, who require that every "i" be dotted and every "t" crossed properly, the named monarch and the name of the empire would need to be changed every time to keep the document up to date.

In a constitution, the simplest definitions that require the least change are best, and if a definition is in any way redundant or unnecessary, it should be removed entirely.

interesting... thanks for the response berglion. i will mull this one over.