Eleanor Finch
The Canadian Constitution is composed of several individual statutes and includes written and unwritten components. It comprises core written documents and provisions that are constitutionally entrenched, take precedence over all other laws, and place substantive limits on government action. The Constitution Act, 1982, states that the Constitution of Canada is the supreme law of Canada, and the Charter of Rights and Freedoms, which was adopted in 1982, is divided into 34 sections.
| Characteristics | Values |
|---|---|
| Number of sections in the Canadian Charter of Rights and Freedoms | 34 |
| Number of sections amended in 1993 | 1 (Section 16.1) |
| Number of sections amended in 1983 | 1 (Section 35) |
| Number of sections with marginal notes | 4 (Sections 13, 14, 27, 28) |
| Number of sections in the Constitution Act, 1867 | 91 (at least) |
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What You'll Learn
The Canadian Constitution's sections and subsections
The Canadian Constitution is composed of several individual statutes and includes both written and unwritten components. The Constitution of Canada comprises core written documents and provisions that are constitutionally entrenched, take precedence over all other laws, and place substantive limits on government action.
The Constitution of Canada includes the Constitution Act, 1867, and the Constitution Act, 1982. It is the supreme law of Canada. The Constitution Act, 1867, formerly known as the British North America Act, 1867, provides for a constitution "similar in principle" to the largely unwritten constitution of the United Kingdom. It recognizes Canada as a constitutional monarchy and federal state and outlines the legal foundations of Canadian federalism. The Constitution Act, 1982, includes the Canadian Charter of Rights and Freedoms, which guarantees fundamental rights and freedoms to Canadians and is divided into 34 sections.
The Charter outlines the inalienable, protected human rights, liberties, and freedoms enjoyed by all Canadian citizens, including the freedom to practice any religion and participate in its rituals, as well as the right to equality, democracy, and mobility. It also includes protections for the rights of Indigenous peoples (Indian, Inuit, and Métis) of Canada. Section 35 of the Constitution Act, 1982, recognizes and affirms Aboriginal rights, which are rights related to the historical occupancy and use of the land by Indigenous peoples.
The Charter also guarantees the freedom of conscience, religion, thought, belief, opinion, expression, peaceful assembly, and association. It applies to the Parliament and Canadian government, as well as provincial legislatures and governments, in matters within their respective authorities. The Charter has placed a strong focus on the individual and collective rights of Canadians and has fundamentally changed much of Canadian constitutional law.
It's worth noting that while any court can technically rule a Canadian law unconstitutional, legal cases involving "Charter challenges" are often appealed to the Supreme Court of Canada for a final decision.
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The Constitution Act, 1982
Section 35 of the Constitution Act, 1982, "recognizes and affirms" the "existing" Aboriginal and treaty rights in Canada. These rights protect the activities, practices, and traditions integral to the distinct cultures of Indigenous peoples. Treaty rights protect and enforce agreements between the Crown and Indigenous peoples, while Aboriginal title protects the use of land for traditional practices. Subsection 35(2) extends these rights to Indian, Inuit, and Métis peoples, and subsection 35(4) ensures that they "are guaranteed equally to any male and female persons".
The enactment of the Charter of Rights and Freedoms as part of the Constitution Act, 1982, had a significant impact on Canadian constitutional law. It codified many previously oral constitutional conventions and made the amendment of the constitution more difficult. The Charter also greatly expanded the range of judicial review, as it explicitly guarantees rights and outlines the role of judges in enforcing them.
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The Constitution Act, 1867
The Act outlines the legal foundations of Canadian federalism, recognising Canada as a constitutional monarchy and federal state. It establishes the Dominion of Canada by uniting the North American British "Provinces" (colonies) of Canada, New Brunswick, and Nova Scotia. The Act also divides the former Province of Canada into two: its two subdivisions, Canada West and Canada East, were renamed Ontario and Quebec, respectively, becoming full provinces.
The Act was amended in 1982 when the Constitution was "patriated" from the United Kingdom, and the British North America Acts were renamed. Section 92A was added, granting provinces greater control over non-renewable natural resources. The Constitution Act, 1867, along with the Constitution Act, 1982, forms the supreme law of Canada, taking precedence over all other laws and placing substantive limits on government action.
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The Canadian Charter of Rights and Freedoms
The Canadian Constitution comprises core written documents and provisions that are constitutionally entrenched, taking precedence over all other laws and placing substantive limits on government action. It includes the Constitution Act, 1867 (formerly the British North America Act, 1867), and the Canadian Charter of Rights and Freedoms.
The Charter has fundamentally changed much of Canadian constitutional law. It codified many previously oral constitutional conventions and made the amendment of the constitution significantly more difficult. Textual amendments must now conform to certain specified provisions in the written portion of the Canadian constitution.
The Charter guarantees rights equally to males and females. It must be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. It also guarantees the freedom of conscience and religion; thought, belief, opinion, and expression, including freedom of the press and other means of communication; peaceful assembly; and association.
The Charter also sets out that anyone whose rights or freedoms have been infringed or denied may apply to a court of competent jurisdiction to obtain whatever remedy the court considers appropriate and just.
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Provincial constitutions and their validity
Canada's constitution is composed of several individual statutes. Unlike in most federations, Canadian provinces do not have written provincial constitutions. Instead, provincial constitutions are a combination of an uncodified constitution, provisions of the Constitution of Canada, and provincial statutes. The overall structures of provincial governments (such as the legislature and cabinet) are described in parts of the Constitution of Canada.
The governmental structure of the original four provinces (Nova Scotia, New Brunswick, Quebec, and Ontario) is described in Part V of the Constitution Act, 1867. The three colonies that joined Canada after Confederation (British Columbia, Prince Edward Island, and Newfoundland and Labrador) had existing UK legislation that described their governmental structure. This was affirmed in each colony's Terms of Union, which now form part of Canada's Constitution. The remaining three provinces (Manitoba, Saskatchewan, and Alberta) were created by federal statute, and their constitutional structures are described in those statutes, which now form part of Canada's Constitution. All provinces have enacted legislation that establishes other rules for the structure of government.
Each province (and territory) has an act governing elections to the legislature and another governing procedure in the legislature. Two provinces have explicitly listed such acts as being part of their provincial constitution: Quebec and British Columbia. However, these acts do not generally supersede other legislation and do not require special procedures to amend, so they function as regular statutes rather than constitutional statutes. A small number of non-constitutional provincial laws do supersede all other provincial legislation, as a constitution would. This is referred to as quasi-constitutionality, which is often applied to human rights laws, allowing those laws to act as a de facto constitutional charter of rights. For example, laws preventing discrimination in employment, housing, and services have clauses that make them quasi-constitutional in ten out of thirteen jurisdictions.
Amendments affecting a provincial government alone (Section 45) do not need the approval of Parliament or the other provinces. There are three general methods by which a statute becomes entrenched in the Constitution: specific mention as a constitutional document in Section 52(2) of the Constitution Act, 1982 (e.g., the Constitution Act, 1867); constitutional entrenchment of an otherwise statutory English, British, or Canadian document because its (still-in-force) subject-matter provisions are explicitly assigned to one of the methods of the amending formula (per the Constitution Act, 1982)—e.g., provisions with regard to the monarchy in the English Bill of Rights 1689 or the Act of Settlement 1701; and English and British statutes are part of Canadian law because of the Colonial Laws Validity Act, 1865; Section 129 of the Constitution Act, 1867; and the Statute of Westminster, 1931.
Constitutional scholars are divided on the validity of an amendment to a provincial constitution framed as an addition to part of the Constitution of Canada. For example, Quebec statutes purport to add Sections 90Q and 128Q, and a Saskatchewan statute purports to add Section 90S. Because the Senate and House of Commons did not authorise these amendments, they would only have effect if they are amendments to provincial constitutions under the Section 45 amending procedure.
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Frequently asked questions
The Canadian Constitution is divided into 34 sections.
Some of the sections in the Canadian Constitution include Sections 1, 16.1, 24, 26, 27, 28, 29, 35, 52, 90Q, 128Q, and 90S.
Some key sections in the Canadian Constitution include Section 26, which ensures that Canadians retain rights and freedoms beyond those explicitly mentioned in the Charter; Section 27, which recognises Canada's multicultural society; Section 35, which protects Indigenous rights; and Section 52, which establishes the Constitution as the supreme law of Canada.
Sections 16.1, 29, and 128Q are relevant to education and language rights. Section 16.1 protects the rights of English and French linguistic communities in New Brunswick to have distinct educational and cultural institutions. Section 29 preserves the rights of Canadians to establish religious or denominational schools, and Section 128Q, a Quebec statute, may also relate to educational matters.
Sections 52(2), 90Q and 90S relate to the amendment of the Canadian Constitution. Section 52(2) specifies that a statute becomes entrenched in the Constitution if it is mentioned as a constitutional document. Sections 90Q and 90S are proposed amendments by Quebec and Saskatchewan, respectively, which have sparked debate among constitutional scholars regarding their validity.
