Constitution of Canada
The Constitution of Canada is the supreme law in Canada. It is an amalgam of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens. Generally speaking, all British legislation that predates or modifies the British North America Act comprise the Constitution of Canada.
The Constitution is made up of many parts (see the list below), the most significant that are most often cited today are:
- British North America Act, 1867 (30 & 31 Victoria, c.3 (U.K.)). This was an Act of the British Parliament that created the Dominion of Canada out of three separate provinces in British North America and allowed for subsequent provinces and colonies to join this union in the future. It also granted Canada self-government and outlined Canada's system of government, which combines Britain's Westminster model of parliamentary government with American-like federalism (division of powers). Although it is one of many British North America Acts to come, it is still the most famous of these and is understood to be the document of Canadian confederation (i.e. union of provinces and colonies in British North America). With the patriation of the Constitution in 1982, this Act was renamed Constitution Act, 1867.
- Statute of Westminster, 1931 (22 Geo. V, c.4 (U.K.)). This was an Act of the British Parliament that gave all dominion countries equal legislative authority with the United Kingdom.
- Constitution Act, 1982. This was an Act by the Canadian Parliament requesting full political independence from Britain. Part V of this Act created a constitution-amending formula that did not require an Act by the British Parliament. Further, Part I of this Act is the Canadian Charter of Rights and Freedoms which outlines the civil rights and liberties of every citizen in Canada, such as freedom of speech, of religion, of mobility, etc. Part II deals with the rights of Canada's Aboriginal peoples.
- Canada Act, 1982 ((U.K.) 1982, c.11). This was an Act by the British parliament that incorporated and accepted as law the Constitutional Act, 1982, granting severed virtually all remaining constitutional and legislative ties between the United Kingdom and Canada. The Constitution Act, 1982 was enacted as Schedule B (i.e. appendix B) of the Canada Act, 1982.
- Canadian Charter of Rights and Freedoms. As noted above, this is Part I of the Constitution Act, 1982.
Prior to the enactment of the Canadian Charter of Rights and Freedoms in 1982, civil rights and liberties had no solid Constitutional protection in Canada. Whenever one level of government passed a law that seemed oppressive to civil rights and liberties, Canadian constitutional lawyers had to argue creatively, such as saying that the oppressive law violates division of federal and provincial powers or citing some other technical flaw that has little to do with the concept of civil rights and liberties. Since 1982, however, the Charter become the most often cited portion of the Constitution (for obvious reasons), and thus leaving the original document of Confederation and the other predecessor acts and orders, as listed below, to be generally unknown except to historians and legal experts. These acts have sometimes been denounced as "messy," "almost incoherent" or worse for their somewhat convoluted form and long, unconsolidated history. However, they remain the laws that determine the division of powers between federal and provincial jurisdictions, the terms upon which new provinces entered Canada and the division between executive, legislative and judicial areas of power in a manner very different from the United States.
Much of how Canada's government works cannot be accurately learned from a simple reading of the constitution. Like the British government, the Canadian government is heavily dependent on unwritten constitutional conventions. For example, a literal reading of the constitution would seem to indicate that Canada is an authoritarian nation run almost single-handedly by a dictatorial Governor General. This is not the case, of course. The Governor General is for the most part a figurehead, and the true power rests in the Prime Minister, though the latter office was not even mentioned in the Constitution until 1982, and even then was only done in passing.
At the same time, Canada relies on constitutional convention to a much smaller degree than the United Kingdom, and there are parts of the Constitution of Canada (namely the portions that deal with individual rights and provincial-federal relations) in which a literal reading of the constitutional documents closely resembles actual practice.
Table of contents
Amending the Constitution
Modifying the Constitution of Canada used to be done by act of the Parliament of the United Kingdom or "Imperial Parliament". Since the repatriation of the constitution in 1982, however, amendments can only be passed by the Canadian House of Commons, the Senate of Canada, and a two-thirds majority of the provincial legislatures representing at least 50% of the population. Though not constitutionally mandated, a popular referendum in every province is also considered to be necessary by many, especially following the precedent established by the Charlottetown Accord (see below).
If a constitutional amendment only affects one province, however, only the assent of that province's legislature is required. Eight of the ten amendments passed so far have been of this nature, with four passed by and for Newfoundland and Labrador, one passed for New Brunswick, one for Nunavut, one for Prince Edward Island, and one for Quebec. Some of the above did also require approval by the federal Parliament under section 43(b) due to the English and French nature of the amendment.
There are some parts of the Constitution that can only be modified by a unanimous vote of all the provinces, however. This includes changing the Supreme Court of Canada in any way, changing the process for amending the constitution itself, or abolishing the Monarchy in Canada.
Amending the Canadian Constitution is a topic of great debate in Canada. There seems to be general agreement among provincial governments that some parts of the Constitution need to be amended to deal with long-standing demands from many provinces. There are demands by western provinces for a greater share of power at the federal level, and demands from Quebec for greater protection for its status as distinct society. Quebec, in particular, has not formally signed the Constitution Act of 1982, although this is largely symbolic and does not affect the legal applicability of the Act.
Nevertheless, agreement on details of amendments has been elusive. Further complicating attempts to amend the Constitution is the complexity of the procedure for doing so, which in most cases requires approval from both the federal parliament and two-thirds of the provincial governments representing at least 50% of the population, and in some cases require the approval of the federal government and all ten provincial governments.
The 1987 Meech Lake Accord, a package of constitutional amendments, intended to deal with long-standing concerns of western provinces and demands from the Province of Quebec, failed in 1990 when it was not ratified by all ten provincial governments. The last attempt at a comprehensive package of constitutional amendments was the Charlottetown Accord, which arose out of the failure of the Meech Lake Accord. The Charlottetown Accord was defeated in a national referendum in 1992.
There have been several relatively minor amendments to the Constitution since it was repatriated in 1982 including amendments dealing with provincial schooling in Newfoundland and Quebec and the changing of the name of Newfoundland to Newfoundland and Labrador (see below).
Pieces of the Constitution
- Act of Settlement, 1701- stipulates that judges remain in office during good behaviour, instead of the "pleasure of the sovereign", also dictates royal succession
- Constitution Act, 1867 (Consolidated) (Formerly known as the British North America Act, 1867 [Consolidated]- Establishment of Dominion of Canada as self-governing British colony, with own national parliament and four provincial legislatures
- Rupert's Land Act, 1868- annexation of Rupert's Land territory
- Temporary Government of Rupert's Land Act, 1869- creation of Northwest Territories
- Manitoba Act, 1870- creation of the province of Manitoba
- Rupert's Land and North-Western Territory Order
- British Columbia Terms of Union (Formerly Order of Her Majesty in Council admitting British Columbia into the Union)- joining of the province of British Columbia
- Constitution Act, 1871 (Formerly British North America Act, 1871)
- Prince Edward Island Terms of Union (1873)- joining of Province of Prince Edward Island
- Parliament of Canada Act, 1875- allowing the Parliament of Canada to expand lawmaking powers
- Adjacent Territories Order 1880
- Constitution Act, 1886 (Formerly British North America Act, 1886)
- Canada (Ontario Boundary) Act, 1889
- Statute Law Revision Act, 1893
- Canadian Speaker (Appointment of Deputy) Act, 1895, Session 2 (Repealed by the Constitution Act, 1982)- acceptance of the constitutional validity of the post of deputy speaker
- Yukon Territory Act, 1898- creation of Yukon Territory
- Alberta Act, 1905 (Formerly The Alberta Act, 1905)- creation of Province of Alberta
- Saskatchewan Act, 1905 (Formerly The Saskatchewan Act, 1905)- creation of Province of Saskatchewan
- Constitution Act, 1907 (Formerly British North America Act, 1907)
- Constitution Act, 1915 (Formerly British North America Act, 1915)
- British North America Act, 1916 (Repealed by Statute Law Revision Act, 1927)
- Statute Law Revision Act, 1927
- Constitution Act, 1930
- Statute of Westminster, 1931- removing all remaining lawmaking powers from British Parliament, allowing for Canadian parliament to modify British-made legislation
- Constitution Act, 1940 (Formerly British North America Act, 1940)
- British North America Act, 1943 (Repealed by the Constitution Act, 1982)
- British North America Act, 1946 (Repealed by the Constitution Act, 1982)
- Letters Patent Constituting the Office of Governor General of Canada- Limiting the political powers of the British Monarch over Canada
- Newfoundland Act (Formerly British North America Act, 1949)- joining of the Province of Newfoundland
- British North America Act 1949 (Repealed by the Constitution Act, 1982)
- Statute Law Revision Act, 1950
- British North America Act, 1951 (Partially repealed by the Constitution Act, 1964, Repealed by the Constitution Act, 1982)
- British North America Act, 1952 (Repealed by the Constitution Act, 1982)
- Constitution Act, 1960 (Formerly British North America Act, 1960)
- Constitution Act, 1964 (Formerly British North America Act, 1964)
- Constitution Act, 1965 (Formerly British North America Act, 1965)
- Constitution Act, 1974 (Formerly British North America Act, 1974)
- Constitution Act (No. 1), 1975 (Formerly British North America Act (No. 1), 1975)
- Constitution Act (No. 2), 1975 (Formerly British North America Act (No. 2), 1975)
- Miscellaneous Statute Law Revision Act, 1977
Amendments to the Constitution
As mentioned, amending the Constitution has been a topic of much debate in contemporary Canada, and the two most comprehensive attempts to revise the document have both been defeated. There have, however, been ten minor amendments to the Constitution since it was repatriated in 1982.
Most of these amendments have been limited in scope, dealing with only specific provinces, and thus not subject to national debate. None have been subjected to a national referendum.
- 1983 Amendment: mandated yearly Prime Minister meetings with Aboriginal leaders.
- 1985 Amendment: modified formula for determining seats in the House of Commons.
- 1987 Amendment: extended education rights to the Pentecostal Church in Newfoundland (repealed by 1998 Amendment)
- 1993 Amendment: made English and French linguistic communities equal with the right to distinct linguistic and cultural education in New Brunswick.
- 1993 Amendment: allowed for a "fixed link" bridge to replace ferry services to Prince Edward Island.
- 1997 Amendment: allowed the Province of Newfoundland to create a secular school system to replace the church-based education system.
- 1997 Amendment: permitted Quebec to replace the denominational school boards with ones organized on linguistic lines.
- 1998 Amendment: ended denominational quotas for Newfoundland religion classes.
- 1999 Amendment: creation of territory of Nunavut.
- 2001 Amendment: changed the name of "Province of Newfoundland" to "Province of Newfoundland and Labrador"
Unwritten Sources of the Canadian Constitution
Conventions: Constitutional conventions form part of the Constitution, but they are not legally enforceable. They include the existence of the Parliamentary Cabinet, the fact that the Governor General required to give assent to Bills, and the requirement that the Prime Minister call an election upon losing a vote of non-confidence.
Royal Prerogative : Remnants of the powers once held by the British Crown, reduced over time by the Parliamentary system. Primarily, these are the Orders-in-Council which give the Government the authority to declare war, conclude treaties, issue passports, make appointments, make regulations, incorporate, and receive lands that escheat to the Crown due defective heirs.
Unwritten Principles: Principles that are incorporated into the Canadian Constitution by reference from the preamble of the Constitution Act, 1867. Unlike conventions, they are legally binding. Amongst the recognized Constitutional principles are federalism, democracy, the rule of law, and respect for minorities.