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Brian Bird: The Charter at Forty: The road to 1982

Commentary

2022 marks a major milestone for Canada: the 40th anniversary of the Constitution Act, 1982. This statute, which took effect on April 17, 1982, secured three major milestones for Canada.

First, it transferred full care and control over the Canadian Constitution from the United Kingdom to Canada. Second, it adopted a set of rules by which Canada could amend its Constitution. Third, it embedded a bill of rights, the Canadian Charter of Rights and Freedoms, into the Constitution. Barry Strayer, an esteemed Canadian jurist and one of the architects of the changes to our Constitution in 1982, aptly called this moment a constitutional revolution.

To mark this anniversary, I propose to make a whistle-stop journey through Canada’s constitutional history. This journey, which will finish in April to coincide with the anniversary of the Constitution Act, 1982, will have four stops: our constitutional landscape before 1982, how 1982 came about, the story after 1982, and the future of the Canadian Constitution.

The 40th anniversary of Canada’s constitutional revolution is an ideal moment to undertake what is a worthy endeavour at any time. In a society ruled by law, the portion of our law that governs all state action is of fundamental significance. The Constitution creates and sustains the basic features of Canadian society. It shapes our daily lives far more than we appreciate.

We only stand to benefit by deepening our knowledge of our Constitution. In doing so we will surely deepen our knowledge of Canada—a country that, though imperfect, merits affection and admiration. One might even say that, by learning about the law that constitutes Canada, we will grow in “true patriot love” for this remarkable country.

Part I: A Mari Usque Ad Mare

Owing to our British constitutional heritage, Canada’s constitutional story begins long before a group of British colonies unified in 1867. The Royal Proclamation of 1763, the Bill of Rights of 1689, and the Magna Carta of 1215, for example, all form part of our constitutional blueprint.

But the rubber certainly hit the road in the 1860s when two fateful meetings of colonial leaders in what was then known as British North America—more specifically, representatives from the Maritimes and the lands that would later be known as Ontario and Quebec—gathered to discuss the prospect of unification. The conferences in Charlottetown and Quebec City in 1864 would generate the momentum that would crystallize in the birth of Canada, an event that we call Confederation, three years later.

The agreement that emerged from the conferences, the 72 Resolutions, would in 1866 be taken to London for deliberations between the colonial delegates and British officials. After ironing out the details and receiving the Crown’s stamp of approval, colonial delegates—individuals who would later be known as Fathers of Confederation—worked with Henry Herbert, the Colonial Secretary, to transform the 72 Resolutions into legislation that would give effect to Confederation.

(Herbert, who also happened to be the 4th Earl of Carnarvon, welcomed members of the colonial delegation to his residence, Highclere Castle, to conduct aspects of this work. Today, many of us know Highclere Castle as the setting for Downton Abbey.)

This work culminated in the passage of the British North America Act, 1867 by the Parliament of the United Kingdom. The statute, commonly called the BNA Act, received royal assent on March 29, 1867, and took effect on July 1: the first Canada Day. The BNA Act created the “Dominion” of Canada by unifying Quebec, Ontario, Nova Scotia, and New Brunswick.

Drafters of the BNA Act also considered calling Canada a “Kingdom”, but this idea failed to gain traction because of concerns over how the United States might react given its distaste for monarchy. Sir Samuel Leonard Tilley, another Father of Confederation, is credited with proposing “Dominion”. He drew inspiration from Psalm 72: “He shall have dominion also from sea to sea, and from the river to the ends of the earth.” A portion of this verse, in Latin, would become the national motto of Canada: A mari usque ad mare (“from sea to sea”).

The BNA Act stipulated that Canada would be a federal state animated by the Westminster parliamentary system and subject to the British monarch. Canada, the BNA Act declared, would have a Constitution “similar in Principle to that of the United Kingdom”.

This phrase is generally understood to mean that Canada would be governed by the same basic constitutional norms, customs, and conventions that governed the United Kingdom. And the bedrock of the British Constitution is the concept of parliamentary sovereignty, the principle that Parliament can make and unmake any law as it sees fit. To the extent that this rule could operate in harmony with the strictures of the text of the BNA Act, it and any other core ingredient of the British Constitution would infuse the Canadian Constitution.

The BNA Act also delineates the legislative jurisdiction of Canada’s federal and provincial governments. To the federal government, the statute granted legislative jurisdiction over issues of national concern such as citizenship and national defence. This part of the BNA Act features what is arguably Canada’s constitutional calling card: the federal government may make laws for “Peace, Order, and good Government”. The provinces, meanwhile, are granted exclusive jurisdiction by the BNA Act to legislate in respect of regional and local considerations such as education and municipalities. The BNA Act does not grant certain matters in their entirety to either level of government. Health care, for example, is an area of shared jurisdiction.

The BNA Act foresaw the entry of other members to Canada. Manitoba and the Northwest Territories joined in 1870, followed by British Columbia in 1871 and Prince Edward Island in 1873. Yukon entered in 1898, while Alberta and Saskatchewan joined in 1905. Newfoundland and Labrador came on board in 1949. Nunavut, the latest addition, entered the fold in 1999.

The BNA Act remained the centerpiece of the Canadian Constitution for 115 years until Canada’s constitutional revolution of 1982. It also remained in the hands of the United Kingdom until that year. Between 1867 and 1982, nineteen statutes were enacted to amend the BNA Act and thus the Canadian Constitution. These statutes, among other changes to the Constitution, altered the makeup of the Senate and House of Commons, afforded the federal government jurisdiction over unemployment insurance, and granted certain provinces greater control over the natural resources within their boundaries.

Most of these statutes were enacted by the United Kingdom because the BNA Act, which is a British law, could only be amended by the British Parliament. But in 1949, the United Kingdom granted the federal government a limited power to amend the BNA Act. Due to this partial patriation of the Canadian Constitution, a handful of the nineteen amending statutes were enacted by the Parliament of Canada rather than the British Parliament.

Between the constitutional milestones of 1867 and 1982, one more year deserves to be mentioned in this brief tour of Canada’s early constitutional architecture. In 1931, the United Kingdom enacted the Statute of Westminster. This statute revised the relationship between the United Kingdom and several members of the nascent Commonwealth—Canada, Australia, New Zealand, South Africa, the Irish Free State, and Newfoundland—in the direction of greater independence for these countries. In the case of Canada, the Statute of Westminster declared that the United Kingdom would, from that moment on, only amend the BNA Act—in other words, the Canadian Constitution—if Canada asked for an amendment to be made.

Why did the Statute of Westminster not go one step further and declare that only Canada could amend the Canadian Constitution moving forward? Simply put, the federal and provincial governments could not agree on what the rules for amending the Constitution should be. The inability to achieve agreement on a constitutional amending formula would remain a stumbling block to bringing the Constitution home for another half-century, until a breakthrough in 1981.

The foregoing is far from a comprehensive journey through Canada’s constitutional story prior to 1982. Books have been written on various individual aspects of what is described above. But this discussion should provide sufficient context to appreciate the next part of this series, which will explore the path that led to the importation of our Constitution from the United Kingdom with an amending formula and a bill of rights—in short, the road to 1982.

Labour Market Insights: In-demand occupations in health care and Ontario’s labour market trends for December 2021

Commentary

As we move beyond the end-of-year holiday hiring spree, job postings are down and employment is up. How much of these numbers can be attributed to the COVID-19 pandemic’s ongoing influence on employment and the workforce? How do we compare at the start of 2022 relative to where we were prior to the pandemic? 

This month’s Labour Markets Insights attempts to shed some light on these questions. Our analysis is focused on where in-demand jobs and the employment numbers intersect. This analysis draws from Workforce WindsorEssex’s unique data source which covers job postings from across the province (excluding the City of Toronto and the far northeastern region).

The 10 most in-demand occupations in December 2021 compared to the previous month were as follows:

Graphic credit: Janice Nelson.

The top-10 in-demand occupations constituted just under one-third of all job postings (49,989 job postings or 30.7 percent) in the regions. The number of active job postings decreased by 19,415 in December relative to November for a total of 162,852, compared to 182,267 active job postings in November. This was a decrease of 10.7 percent across the regions between the two final months of 2021.

The occupational field of Home Support Workers, Housekeepers and Related Occupations appears higher on December’s list, although it saw just a one percent increase in postings from 4,421 total active job postings in November to 4,461 in December. Home Support Workers provide personal care and companionship for seniors, persons with disabilities, and convalescent clients and are employed by home care and support agencies, private households, or they may be self-employed.

Registered Nurses and Registered Psychiatric Nurses jumped from the 12th-most in-demand occupation for November with 2,709 total active job postings to the 9th in December with 3,251 total active job postings. This amounted to a 20-percent increase month-over-month for these positions. This occupation provides direct nursing care to patients, delivers health education programs, and provides consultative services regarding issues relevant to the practice of nursing.

Increases in job postings in these occupational fields can likely be attributed to an increase in the need for more staffing as COVID-19 cases grew in hospitals as well as to cover vacancies from staff unable to go into work due to contracting COVID-19.

Both Food Counter Attendants, Kitchen Helpers and Related Support Occupations and Cooks saw a decrease in job postings in December relative to November (with decreases of 17.6 percent and 16.7 percent, respectively). The decrease in job postings here is likely a result of the Ontario government reinstating some public health measures on December 18. These restrictions included limiting restaurants and bars to 50 percent capacity.

Looking at Statistics Canada’s employment data for the whole of Ontario, the province is now above pre-pandemic employment numbers, with 7.6 million Ontarians employed in total in December 2021. This is up 5.1 percent from 7.2 million in December 2020 when the province was in lockdown, but also up 2 percent from 7.5 million in December 2019 and up 5.2 percent from 7.2 million in December 2018.

The top-10 companies hiring in December 2021 compared to the previous month were as follows:

Graphic credit: Janice Nelson.

As noted in last month’s Labour Market Insights, we did see a drop in job postings across Ontario during the month of December, largely because the holiday shopping season concluded and employers typically hold off on the recruitment process for any open positions until after the new year begins. We do see some companies in the Wholesale and Retail Trade sector in the top-10 hiring companies have increased hiring, while some have decreased. Employment in the sector province-wide, however, is above pre-pandemic levels, with 1,147,000 employed in the Wholesale and Retail Trade sector in December 2021. This is up 8.9 percent from 1,053,000 in December 2020, up 4.9 percent from 1,093,500 in December 2019, and up 7.4 percent from 1,068,400 in December 2018.

For more information about Workforce WindsorEssex and their valuable LMI, please visit workforcewindsoressex.com.