The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. Canada is one of the oldest constitutional democracies in the world. The constitution outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada.
The composition of the Constitution of Canada is defined in subsection 52(2) of the Constitution Act, 1982, as consisting of the Canada Act 1982 (including the Constitution Act, 1982), all acts and orders referred to in the schedule (including the Constitution Act, 1867, formerly the British North America Act, 1867), and any amendments to these documents. The Supreme Court of Canada has held that the list is not exhaustive and includes a number of pre-confederation acts and unwritten components as well. See list of Canadian constitutional documents for details.
The first semblance of a constitution for Canada was the Royal Proclamation of 1763. The act renamed the northeasterly portion of the former French province of New France as Province of Quebec, roughly coextensive with the southern third of contemporary Quebec. The proclamation, which established an appointed colonial government, was the constitution of Quebec until 1774, when the British parliament passed the Quebec Act, which expanded the province's boundaries to the Ohio and Mississippi Rivers, which was one of the grievances listed in the United States Declaration of Independence. Significantly, the Quebec Act also replaced the French criminal law presumption of guilty until proven innocent with the English criminal law presumption of innocent until proven guilty; but the French code or civil law system was retained for non-criminal matters.
The Treaty of Paris of 1783 ended the American War of Independence and sent a wave of British loyalist refugees northward to Quebec and Nova Scotia. In 1784, the two provinces were divided; Nova Scotia was split into Nova Scotia, Cape Breton Island (rejoined to Nova Scotia in 1820), Prince Edward Island, and New Brunswick, while Quebec was split into Lower Canada (southern Quebec) and Upper Canada (southern through lower northern Ontario). The winter of 1837–38 saw rebellion in both of the Canadas, with the result they were rejoined as the Province of Canada in 1841. This was reversed by the British North America Act in 1867 which established the Dominion of Canada.
Initially, on 1 July 1867, there were four provinces in confederation as "One dominion under the name of Canada": Canada West (former Upper Canada, now Ontario), Canada East (former Lower Canada, now Quebec), Nova Scotia, and New Brunswick. Title to the Northwest Territories was transferred by the Hudson’s Bay Company in 1870 and the province of Manitoba (the first to be established by the Parliament of Canada) was in the same year the first created out of it. British Columbia joined confederation in 1871, followed by Prince Edward Island in 1873. The Yukon Territory was created by Parliament in 1898, followed by Alberta and Saskatchewan in 1905. The Dominion of Newfoundland, Britain's oldest colony in the Americas, joined Canada as a province in 1949. Nunavut was created in 1999.
An Imperial Conference in 1926 that included the leaders of all Dominions and representatives from India (which then included Burma, Bangladesh, and Pakistan), led to the eventual enactment of the Statute of Westminster 1931. The statute, an essential transitory step from the British Empire to the Commonwealth of Nations, provided that all existing Dominions became fully sovereign of the United Kingdom and all new Dominions would be fully sovereign upon the grant of Dominion status. Newfoundland never ratified the statute, so it was still subject to imperial authority when its entire system of government and economy collapsed in the mid-1930s. Canada did ratify the statute, but had requested an exception because the Canadian federal and provincial governments could not agree on an amending formula for the Canadian constitution. It would be another 50 years before this was achieved. In the interim, the British parliament periodically passed enabling acts with respect to amendments to Canada's constitution; this was never anything but a rubber stamp.
The patriation of the Canadian constitution was achieved in 1982 when the British parliament, with the assent of the Canadian parliament, passed the Canada Act 1982, which included in its schedules the Constitution Act, 1982, the United Kingdom thus formally absolving itself of any remaining responsibility for, or jurisdiction over, Canada. In a formal ceremony on Parliament Hill in Ottawa, Queen Elizabeth II proclaimed both acts as law on 17 April 1982. Constitution Act, 1982, included the Canadian Charter of Rights and Freedoms. Prior to the charter, there were various statutes which protected an assortment of civil rights and obligations, but nothing was enshrined in the constitution until 1982. The charter has thus placed a strong focus upon individual and collective rights of the people of Canada.
Enactment of the Charter of Rights and Freedoms has also fundamentally changed much of Canadian constitutional law. The act also codified many previously oral constitutional conventions and made amendment of the constitution significantly more difficult. Previously, the Canadian federal constitution could be amended by solitary act of the Canadian or British parliaments, by formal or informal agreement between the federal and provincial governments, or even simply by adoption as ordinary custom of an oral convention or unwritten tradition that was perceived to be the best way to do something. Since the act, amendments must now conform to certain specified provisions in the written portion of the Canadian constitution.
This was an Act of the British parliament, originally called the British North America Act 1867. It outlined Canada's system of government, which combines Britain's Westminster model of parliamentary government with division of sovereignty (federalism). Although it is the first of 20 British North America Acts, it is still the most famous of these and is understood to be the document of Canadian Confederation. With the patriation of the Constitution in 1982, this Act was renamed Constitution Act, 1867. In recent years, the 1867 document has mainly served as the basis on which the division of powers between the provinces and federal government have been analyzed.
Endorsed by all provincial governments except that of Quebec (led by René Lévesque), this was the formal Act of Parliament that effected Canada's full political independence from the United Kingdom. Part V of this act established an amending formula for the Canadian constitution, the lack of which (due to more than 50 years of disagreement between the federal and provincial governments) was the only reason Canada's constitutional amendments still required approval by the British parliament after enactment of the Statute of Westminster in 1931.
The Act was enacted as a schedule to the Canada Act 1982, a British Act of Parliament which was introduced at the request of a joint address to the Queen by the Senate and House of Commons of Canada. As a bilingual act of parliament, the Canada Act 1982 has the distinction of being the only legislation in French that has been passed by an English or British parliament since Norman French (Law French) ceased to be the language of government in England. In addition to enacting the Constitution Act, 1982, the Canada Act 1982 provides that no further British Acts of Parliament will apply to Canada as part of its law, finalizing Canada's legislative independence.
As noted above, this is Part I of the Constitution Act, 1982. The Charter is the constitutional guarantee of the civil rights and liberties of every citizen in Canada, such as freedom of expression, of religion, and of mobility. Part II addresses the rights of Aboriginal peoples in Canada.
It is written in plain language to ensure accessibility to the average citizen. It applies only to government and government actions with the intention to prevent government from creating laws that are unconstitutional.
Instead of the usual parliamentary procedure, that includes the monarch's formal royal assent for enacting legislation, amendments to the Constitution Act, 1982, must be done in accordance with Part V of the Constitution Act, 1982, which provides for five different amending formulae. Amendments can be brought forward under section 46(1) by any province or either level of the federal government. The general formula is set out in section 38(1), known as the "7/50 formula", and requires: (a) assent from both the House of Commons and the Senate; (b) the approval of two-thirds of the provincial legislatures (at least seven provinces) representing at least 50 per cent of the population (effectively, this would include at least Quebec or Ontario, as they are the most populous provinces). This formula specifically applies to amendments related to the proportionate representation in Parliament, powers, selection, and composition of the Senate, the Supreme Court and the addition of provinces or territories.
The other amendment formulae are for exceptional cases as provided by in the act. In the case of an amendment related to the Office of the Queen, the use of either official language (subject to section 43), the amending formula itself, or the composition of the Supreme Court, the amendment must be adopted by unanimous consent of all the provinces in accordance with section 41. In the case of an amendment related to provincial boundaries or the use of an official language within a province alone, the amendment must be passed by the legislatures affected by the amendment (section 43). In the case of an amendment that affects the federal government only, the amendment does not need approval of the provinces (section 44). The same applies to amendments affecting the provincial government alone (section 45).
In 1983, Peter Greyson, an art student, entered Ottawa's National Archives (known today as Library and Archives Canada) and poured red paint mixed with glue over a copy of the proclamation of the 1982 constitutional amendment. He said he was displeased with the federal government's decision to allow United States missile testing in Canada and had wanted to "graphically illustrate to Canadians" how wrong he believed the government to be. Greyson was charged with public mischief and sentenced to 89 days in jail, 100 hours of community work, and two years of probation. A grapefruit-sized stain remains on the original document; restoration specialists opted to leave most of the paint intact, fearing that removal attempts would only cause further damage.
Canada's constitution has roots going back to the thirteenth century, and include England's Magna Carta and the first English parliament of 1275. It is one of the oldest working constitutions in the world (others are: the United Kingdom, United States, Sweden, Norway, Switzerland, Denmark). Canada's constitution is composed of several individual statutes. There are three general methods by which a statute can become entrenched in the Constitution:
The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading.
In practice, there have been three sources of unwritten constitutional law:
In 1931, under the Statute of Westminster, Canada and a number of other British dominions, acquired full independence(4) and with it authority to act internationally with all the attributes of a sovereign state. Full power over foreign affairs was thus conferred on Canada and section 132 of the Constitution Act, 1867 became obsolete." Footnote 4:"Except with respect to amendments to Canada’s Constitution, which remained under the British Parliament’s jurisdiction until 1982.
The Alberta Act (French: Acte de l'Alberta), effective 1 September 1905, was the act of the Parliament of Canada that created the province of Alberta. The Act is similar in nature to the Saskatchewan Act, which established the province of Saskatchewan at the same time. Like the Saskatchewan Act, the Alberta Act was controversial because (sec. 21) it allowed the Government of Canada to maintain control of all of Alberta's natural resources and public lands. Alberta did not win control of these resources until the passage of the Natural Resources Acts in 1930.
The Alberta Act is part of the Constitution of Canada.Amendments to the Constitution of Canada
Amendments to the Constitution of Canada are changes to the Constitution of Canada.Calgary Declaration
The Calgary Declaration, also known as the Calgary Accord, was an agreement made between most premiers of the provinces and territories of Canada regarding how to approach future amendments to the Constitution. It was signed in Calgary, Alberta, on September 14, 1997, by all Canadian premiers and territorial leaders except Quebec's Lucien Bouchard. The Declaration had followed controversial and divisive constitutional debate in Canada seen during the patriation of the Constitution in 1982, and the subsequent collapse of the Meech Lake and Charlottetown Accords.Canada Act 1982
The Canada Act 1982 (1982 c. 11; French: Loi de 1982 sur le Canada) is an act of the Parliament of the United Kingdom which was passed (as stated in the preamble) at the request of the Parliament of Canada, to "patriate" Canada's constitution, ending the power of the British Parliament to amend the Constitution of Canada. The act also formally ended the "request and consent" provisions of the Statute of Westminster 1931 in relation to Canada, whereby the British parliament had a general power to pass laws extending to Canada at its own request.
Annexed as Schedule B to the act is the text of the Constitution Act, 1982, in both of Canada's official languages (i.e. English and French). Because of the requirements of official bilingualism, the body of the Canada Act itself is also set out in French in Schedule A to the act, which is declared by s. 3 to have "the same authority in Canada as the English version thereof".Canadian constitutional law
Canadian constitutional law (French: droit constitutionnel du Canada) is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.
In Reference re Secession of Quebec, the Supreme Court characterized four fundamental and organizing principles of the Constitution (though not exhaustive): federalism; democracy; constitutionalism and the rule of law.Charlottetown Accord
The Charlottetown Accord (French: Accord de Charlottetown) was a package of proposed amendments to the Constitution of Canada, proposed by the Canadian federal and provincial governments in 1992. It was submitted to a public referendum on October 26 of that year, and was defeated.Constitution Act, 1867
The Constitution Act, 1867 (originally enacted as The British North America Act, 1867, and referred to as the BNA Act) (the Act) is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. The British North America Acts, including this Act, were renamed in 1982 with the patriation of the Constitution (originally enacted by the British Parliament); however, it is still known by its original name in United Kingdom records. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867.. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.
This process was necessary because, after the Statute of Westminster, 1931, Canada decided to allow the British Parliament to temporarily retain the power to amend Canada's constitution, on request from the Parliament of Canada. In 1981, the Parliament of Canada requested that the Parliament of the United Kingdom remove that authority from the UK. The passing of the UK's Canada Act 1982 in March 1982 confirmed the Patriation of the Constitution and transferred to Canada the power of amending its own Constitution.On April 17, 1982, Queen Elizabeth II and Prime Minister Pierre Trudeau, as well as the Minister of Justice, Jean Chrétien, and André Ouellet, the Registrar General, signed the Proclamation which brought the Constitution Act, 1982 into force. The proclamation confirmed that Canada had formally assumed authority over its constitution, the final step to full sovereignty.As of 2019, the government of Quebec has never formally approved of the enactment of the act, though the Supreme Court concluded that Quebec's formal consent was never necessary. Nonetheless, it has remained a persistent political issue in Quebec. The Meech Lake and Charlottetown Accords were designed to secure approval from Quebec, but both efforts failed to do so.Constitution of Alberta
The Constitution of Alberta describes the fundamental rules under which the Canadian province of Alberta is governed. As is typical of all Canadian provinces, and Westminster systems more generally, Alberta's is an unwritten constitution. Alberta's constitution, like the UK's (on which it is modeled), includes any and all pieces of legislation, court decisions, proclamations, and conventions which together inform how the province operates. Many statutes are important to understanding the governance of the province, but nowhere are they consolidated into a single document or even a list. The office of Attorney-General at one time suggested 23 acts which might be included, but cautioned that this was not a "definitive list". However, since Alberta is a part of federation, its powers are clearly delineated in law, via the Constitution of Canada.
As part of the Canadian federation, Alberta, like all of the provinces, is bound by the terms of the Constitution of Canada; this includes rules concerning the division of powers between the federal order of government and the provinces, as well as the rights of individuals vis-a-vis the state. The legislature of the province can only legislate on topics delegated to the provinces under Section 92 of the Constitution Act, 1867, and since 1982 it is further bound by the Canadian Charter of Rights and Freedoms, in both instances being subject to judicial review.
At the time that Alberta was created, the basics of its structure were set out in a statute passed by the federal parliament, the Alberta Act (1905). This is considered a Canadian constitutional document and is listed as such in the appendix to the Constitution Act, 1982. Nevertheless, Alberta has always had the power to change its own internal composition without the approval of the federal parliament (within limits), and has done so on many occasions. For example Alberta has at various times had both a first-past-the-post and a mixed member electoral system.
Since 1982, provinces have had the option of making some laws explicitly part of their constitution under a formula contained within the Constitution of Canada. Alberta has done this only once to date. The Constitution of Alberta Amendment Act, 1990 enshrines the existence of Métis settlements in Alberta and provides a guarantee that they will not be abolished without the consent of the Métis people in Alberta.Constitutional history of Canada
The constitutional history of Canada begins with the 1763 Treaty of Paris, in which France ceded most of New France to Great Britain. Canada was the colony along the St Lawrence River, part of present-day Ontario and Quebec. Its government underwent many structural changes over the following century. In 1867 Canada became the name of the new federal Dominion extending ultimately from the Atlantic to the Pacific and the Arctic coasts. Canada obtained legislative autonomy from the United Kingdom in 1931, and had its constitution (including a new rights charter) patriated in 1982. Canada's constitution includes the amalgam of constitutional law spanning this history.Dialogue principle
In Canadian constitutional law, the dialogue principle is an approach to the interpretation of the Canadian Charter of Rights and Freedoms where judicial review of legislation is said to be part of a "dialogue" between the legislatures and the courts. It specifically involves governments drafting legislation in response to court rulings and courts acknowledging the effort if the new legislation is challenged.
This approach was introduced by constitutional scholar Peter Hogg and has had acceptance in much of the academic world and in courts. Nevertheless, it remains a controversial principle as it attempts to justify what many critics see as judicial activism in the courts.Fulton–Favreau formula
The Fulton–Favreau formula was a proposed formula of amendment of the Constitution of Canada developed by federal justice minister E. Davie Fulton and Quebec Liberal Guy Favreau in the 1960s. The Fulton–Favreau formula would have achieved the patriation of the Constitution.Implied Bill of Rights
The Implied Bill of Rights (French: Déclaration des droits implicite) is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada. Invoked more often before the Canadian Charter of Rights and Freedoms was enacted, it is nonetheless important when questions of parliamentary supremacy and the override power come into play.Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability, the foundation of the Westminster system of parliamentary democracy. Governments (the equivalent of the executive branch) in Westminster democracies are responsible to parliament rather than to the monarch, or, in a colonial context, to the imperial government, and in a republican context, to the president, either in full or in part. If the parliament is bicameral, then the government is responsible first to the parliament's lower house, which is more representative than the upper house, as it has more members and they are always directly elected.
Responsible government of parliamentary accountability manifests itself in several ways. Ministers account to Parliament for their decisions and for the performance of their departments. This requirement to make announcements and to answer questions in Parliament means that ministers must have the privileges of the "floor", which are only granted to those who are members of either house of Parliament. Secondly, and most importantly, although ministers are officially appointed by the authority of the head of state and can theoretically be dismissed at the pleasure of the sovereign, they concurrently retain their office subject to their holding the confidence of the lower house of Parliament. When the lower house has passed a motion of no confidence in the government, the government must immediately resign or submit itself to the electorate in a new general election.
Lastly, the head of state is in turn required to effectuate their executive power only through these responsible ministers. They must never attempt to set up a "shadow" government of executives or advisors and attempt to use them as instruments of government, or to rely upon their "unofficial" advice. They are bound to take no decision or action that is put into effect under the colour of their executive power without that action being as a result of the counsel and advisement of their responsible ministers. Their ministers are required to counsel them (i.e., explain to them and be sure they understand any issue that they will be called upon to decide) and to form and have recommendations for them (i.e., their advice or advisement) to choose from, which are the ministers' formal, reasoned, recommendations as to what course of action should be taken.
An exception to this is Israel, which operates under a simplified version of the Westminster system.Saskatchewan Act
The Saskatchewan Act, S. C. 1905, c. 42. (the Act) is an Act of the Parliament of Canada which established the new province of Saskatchewan, effective September 1, 1905. Its long title is An Act to establish and provide for the government of the Province of Saskatchewan. The Act received royal assent on July 20, 1905. The Saskatchewan Act is part of the Constitution of Canada.Section 35 of the Constitution Act, 1982
Section 35 of the Constitution Act, 1982 provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. The section, while within the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms. The section does not define the term "aboriginal rights" or provide a closed list; some examples of the rights that section 35 has been found to protect are fishing, logging, hunting, the right to land (cf. aboriginal title) and the right to enforcement of treaties. There remains a debate over whether the right to indigenous self-government is included within section 35. As of 2006 the Supreme Court of Canada has made no ruling on the matter. However, since 1995 the Government of Canada has had a policy recognizing the inherent right of self-government under section 35.Section 92(13) of the Constitution Act, 1867
Section 92(13) of the Constitution Act, 1867, also known as the property and civil rights power, grants the provincial legislatures of Canada the authority to legislate on:
It is one of three key residuary powers in the Constitution Act, 1867, together with the federal power of peace, order and good government and the provincial power over matters of a local or private nature in the province.Unsuccessful attempts to amend the Canadian Constitution
Since the Constitution of Canada was patriated, in 1982, only ten minor Amendments to the Constitution of Canada have been passed. There have, however, been a number of unsuccessful attempts to amend the Constitution in accordance with its amending formula.Victoria Charter
The Victoria Charter was a set of proposed amendments to the Constitution of Canada in 1971. This document represented a failed attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add rights and freedoms to it and entrench English and French as Canada's official languages; he later succeeded in all these objectives in 1982 with the enactment of the Canada Act 1982.