In 1867 Canada was provided with a "Constitution
similar in Principle to that of the United Kingdom"1.
The "Constitution Act, 1867" lists the
subdivision of powers between federal and provincial
governments.
This document first describes the mechanics of
the Union (Canada), who exercises "power" and lists
the matters of federal competence (Section VI/91.).
It
then (Section VI/92.) lists matters of provincial competence, from taxation to
shipping, from the management of resources to generation of
electricity, from Hospitals to schools. The document
rightly summarizes its intent with the following phrase: "Generally
all Matters of a merely local or private nature in the Province".
In
other words, under the authority of the Queen, all affairs of
Canada and its citizen would be conducted by the federal and
provincial governments.
Almost
one hundred years earlier the French and American revolutions
led to Constitutions in those countries which advocated power to
the people and established the government as the servant of the
people.
However,
in 1867 the Canadian Constitution mirrors the UK traditional
idea that all powers come from a Monarch and that rights are
granted by the Monarch to the people. Thus the Canadian
Constitution Act of 1867 is no help in defining the role of
government with respect to individual rights, responsibilities
and freedoms.
Over
one hundred years later, in
1982, with the "patriation" of the constitution, the
Constitution Act 1982,2 including the Canadian Charter of Rights and Freedoms, partly tried to correct
that view, but it did not change the enumeration of Legislative
Powers in Section VI of the Constitution Act 1867.
Thus
it is correspondingly difficult for Canadians to invoke the
Constitution to avoid government intervention in all areas of
their life. While the Charter can be invoked in a Constitutional
challenge through the Courts, all powers are implicitly held by
"the government."
- - -
REFERENCES:
[1]
"Constitution
Act, 1867"
[2]
"Constitution
Act, 1982"
