Magna Carta foundation

In 1215, the Magna Charta began a codified system of limited government and due process of law. No one can arbitrarily be punished without a legal case. Consult with nobility before taxing (parliament must approve).

This Magna Charta enabled the foundation of Canada’s 1867 British North America Act (the BNA Act) setting Canada up as the dominion of the British Empire. Canada was internally independent with a government similar to the United Kingdom with a monarch, government, and judges independent to government. It was an ordinary act of British Parliament which could only be changed by British Parliament.

By 1981 it was agreed on (except the Quebec legislature)an amending formula and the Constitution Act of 1982 was born. The amending formula came to Canada with a Charter of Rights and Freedoms.

At once it was the premis of the separatists that federalism doesn’t work, that there are legal, moral and political problems.
The amendment 7/50 rule is effective in many matters (7 provinces with 50% of the population). Unanimity is required from all provinces on a few but very important matters. The Notwithstanding Clause Section 33 (1) is valid for five years then repassed, available to all the provinces and federally. Quebec legislature used it for signage laws.

Changing the Constitution

  1. Amendment Process – the 7/50 rule
  2. Judicial Decision – method used to interpret and change the Constitution
  • Strict constructionist approach by applying the Constitution literally. It is a Canadian tendency to use this approach as judges are appointed by the Prime Minister. Law makers should change it, not the courts.
  • Judicial activists – following the spirit of the constitution, laws are judged in context. What do the voters want? What are your own feelings and conscience? The American Supreme Court Justice are appointed by the President and passed by the Senate. Judicial decisions change the constitution.

    3. Change administrative procedures by just stop doing something.

    4. Change in conventions and practices.

Crown corporations are pragmatic entities owned by the government, established either through their own legislation or through incorporation under the federal or provincial companies legislation. Mixed corporations are businesses in which governments hold a certain number of shares. It is conceeded that there are well over 300 Crown Corporations with complex relationships and scope of activities.  In 1919 the Canadian National Railways was formed. In 1934 the Bank of Canada was taken over (Kernaghan, Siegel, 188,189). The business people had more confidence in the government than in the private sector and arranged for Ontario Hydro to provide assured power at low rates (194).

Generally, the purpose for Crown Corporations is to support private sector corporations, not to compete with them. Humanitarian rescue missions of the private sector are only useful if active restructuring to correct past failures is made. Failing companies need not have funds poured into them to be employed as “make work” projects. Postal unions argued strongly in favour of the post office becoming a Crown Corporation to allow for a broader scope of bargaining to be relieved of the strict financial and personnel restrictions in departments.

Since the 1984 amendments to the Financial Administration Act, Cabinet approval is required before a Crown Corporation can be formed. The establishment of and maintenance of Crown Corporations continue to evolve closer to the spirit of the Magna Carta thanks to these amendments. Now federal Crown Corporations submit an annual corporate plan for the minister’s approval. We must regularly revisit the spirit of the Magna Carta to bring just laws forward into modern circumstances.

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