Isabella Carter
The Canadian Constitution is the country's governing legal framework, comprising core written documents and provisions that are constitutionally entrenched, taking precedence over all other laws, and limiting government action. It is made up of various acts, statutes, orders, court decisions, and practices known as constitutional conventions. The Constitution Act of 1867, originally known as the British North America Act, is the foundational document that outlines the structure of the government and the distribution of powers between the central Parliament and the provincial legislatures. The Canadian Charter of Rights and Freedoms, enacted in 1982, is another crucial component of the Canadian Constitution, enshrining the rights and freedoms of Canadians and fundamentally changing Canadian constitutional law.
| Characteristics | Values |
|---|---|
| Core written documents and provisions that are constitutionally entrenched | Constitution Act, 1867 (formerly the British North America Act, 1867) and the Canadian Charter of Rights and Freedoms |
| Written and unwritten components | The Constitution Act, 1982 includes the Canadian Charter of Rights and Freedoms |
| Defines the powers of the executive branches of government | The Constitution Act, 1867 outlines the distribution of powers between the central Parliament and the provincial legislatures |
| Provides the legal structure for a stable, democratic government | The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms of Canadians |
| Includes Aboriginal rights and treaty rights | The Constitution Act, 1982 reaffirms the existing rights of Indigenous peoples in Canada |
| Sets out basic principles of democratic government | The Constitution Act, 1867 recognizes Canada as a constitutional monarchy and federal state |
| Authorizes Parliament to establish a general court of appeal for Canada | The Constitution Act, 1867 provided for the establishment of the Federal Courts, the Tax Court, and the Supreme Court of Canada |
| Includes constitutional conventions | Examples include the existence of the office of prime minister and the requirement for the Crown to grant royal assent to bills |
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What You'll Learn
The Constitution Act, 1867
The Act divided Canada into four provinces: Ontario, Quebec, Nova Scotia, and New Brunswick. The former Province of Canada was divided into two: its two subdivisions, Canada West and Canada East, were renamed Ontario and Quebec, respectively, and became full provinces.
The Act came into force on 1 July 1867, and the anniversary of the creation of the Dominion of Canada is observed annually as Canada Day, Canada's national holiday.
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The Canadian Charter of Rights and Freedoms
The Canadian Constitution is made up of the Constitution Act, 1867 (formerly the British North America Act, 1867) and the Canadian Charter of Rights and Freedoms. The Canadian Charter of Rights and Freedoms is a part of the Canadian Constitution and is considered the most important law in Canada. It sets out the rights and freedoms that Canadians believe are necessary in a free and democratic society.
The Charter was enacted in 1982 as part of Canada's Constitution and included a set of procedures allowing the Constitution to be amended in Canada. It is a written document that guarantees and sets limits to the fundamental rights and freedoms of Canadians. While the rights and freedoms in the Charter are not absolute, they apply to anyone in Canada, whether they are a citizen, a permanent resident, or a newcomer. There are some exceptions, such as the right to vote and the right to "enter, remain in and leave Canada," which are exclusive to Canadian citizens.
The Charter has placed a strong emphasis on the individual and collective rights of Canadians, fundamentally changing much of Canadian constitutional law. It has also codified many previously oral constitutional conventions, making it significantly more difficult to amend the constitution. The Charter has been a source of change and progress, reinforcing the rights of official language minorities and leading to the recognition and enforcement of the rights of minority and disadvantaged groups.
Section 20 of the Charter outlines the right of Canadians to communicate with the federal government or the Government of New Brunswick in either English or French. These governments are required to provide services in both official languages where there is significant demand or where it would be reasonable to expect them to do so. Additionally, the Charter guarantees Indigenous peoples their rights under the Royal Proclamation of 1763, which states that they will continue to hold all lands they have not ceded.
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Aboriginal rights and treaty rights
The Canadian Constitution, the supreme law of Canada, includes the Constitution Act, 1867, and the Constitution Act, 1982. The latter recognises and affirms Aboriginal rights and treaty rights in Section 35.
Treaties are agreements made between the Government of Canada, Indigenous groups, and often provinces and territories. They define ongoing rights and obligations on all sides. Treaties and treaty rights vary depending on the time and circumstances in which they were negotiated. For example, treaties signed before 1975 often included land set aside for First Nations use.
Aboriginal rights, also referred to as Indigenous rights, are collective rights of distinctive Indigenous societies flowing from their status as the original peoples of Canada. These rights are recognised in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which Canada has signed.
Indigenous peoples in Canada have different types of government. For example, First Nations can have a range of governmental powers over reserve lands under the federal Indian Act. Other Indigenous governments, such as self-governments, exercise these powers as a result of agreements they have negotiated with the federal, provincial, or territorial governments.
The Government of Canada has a duty to consult and, where appropriate, accommodate Indigenous groups when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights.
The Government of Canada is committed to achieving reconciliation with Indigenous peoples through a renewed, nation-to-nation, government-to-government, and Inuit-Crown relationship based on recognition of rights, respect, cooperation, and partnership. This involves recognising the inherent jurisdiction and legal orders of Indigenous nations and incorporating Indigenous perspectives and rights into all aspects of this relationship.
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The distribution of powers
The Canadian Constitution is made up of various documents, statutes, orders, and decisions that outline the distribution of powers between the federal and provincial governments. The core of the Constitution is the Constitution Act, 1867 (formerly known as the British North America Act, 1867), which was enacted by the British Parliament and came into effect on July 1, 1867. This act outlines the distribution of powers, recognising Canada as a constitutional monarchy and federal state. It establishes the structure of government and defines the powers of the three branches of government: the executive, legislative, and judicial.
The Constitution Act, 1867 authorises Parliament to establish courts to administer Canadian laws, including the Federal Courts, the Tax Court, and the Supreme Court of Canada. It outlines the powers of the federal government, granting it jurisdiction over areas such as trade between provinces, national defence, criminal law, money, patents, and the postal service. The Act also gives the federal government power over Indigenous lands and the three territories of Yukon, the Northwest Territories, and Nunavut.
The provincial governments, on the other hand, have the authority to make laws regarding education, property, civil rights, the administration of justice, hospitals, municipalities, and other local matters within their respective provinces. This distribution of powers allows for a federal system where jurisdiction is divided between the federal and provincial levels, ensuring that Canada operates as a democratic society.
In addition to the Constitution Act, 1867, the Canadian Charter of Rights and Freedoms, enacted in 1982, is a crucial component of the Canadian Constitution. This Charter outlines the rights and freedoms of Canadians, such as the right to communicate with the federal government in either English or French. It also includes the rights of Indigenous peoples, as outlined in the Royal Proclamation of 1763. The Charter acts as the most important law in Canada, placing a strong focus on the individual and collective rights of Canadians.
The Constitution is further amended and supplemented by various statutes, such as the Canada Elections Act, and unwritten principles known as constitutional conventions. These conventions include practices such as the power of the Crown to dissolve Parliament and the requirement for royal assent to bills passed by Parliament. The Constitution also includes Aboriginal rights and treaty rights, reaffirming the rights of Indigenous peoples in Canada. Overall, the distribution of powers within the Canadian Constitution ensures a balance between the federal and provincial governments, allowing for the democratic governance of the country.
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Amendments
The Canadian Constitution is a complex mix of statutes, orders, British and Canadian court decisions, and generally accepted practices known as constitutional conventions. It is the supreme law of Canada, and all other laws must be consistent with the rules set out in it.
The Constitution Act, 1867 (formerly the British North America Act, 1867) is the foundational document of Canada's Constitution. It was passed by the British Parliament on 29 March 1867 and came into effect on 1 July 1867. The Act outlines the distribution of powers between the central Parliament and the provincial legislatures. It also provided for the union (confederation) of three of the five British North American colonies into a federal state with a parliamentary system modelled on that of Britain.
The Constitution Act, 1982, includes the Canadian Charter of Rights and Freedoms, which sets out the rights and freedoms that Canadians believe are necessary in a free and democratic society. The Charter is one part of the Canadian Constitution and has fundamentally changed much of Canadian constitutional law. It also made amendment of the constitution in general significantly more difficult.
The Canadian Constitution has undergone several amendments since its inception. The process of amending the Constitution can be complex and involves the federal and provincial governments. Some amendments may be made by the Senate, the House of Commons, and the relevant provinces. For example, changing the boundary between two provinces can be done by these bodies without Senate approval if the House of Commons approves the amendment and then does so again at least 180 days later.
The Constitution Act, 1982, also made several changes to Canada's constitutional structure, including giving Canada complete independence from Britain. The Act reaffirmed the existing rights of Indigenous peoples in Canada, although these rights remain largely undefined.
The Canadian Charter of Rights and Freedoms guarantees and sets limits to the fundamental rights and freedoms of Canadians. It includes provisions such as the right to communicate with the federal government or the Government of New Brunswick in either English or French. It also outlines that rights in the Charter can be limited by law so long as those limits are reasonable in a free and democratic society.
The Constitution Act, 1867, and other statutes also play a role in amendments to the Constitution. For example, the Constitution Act, 1867, authorized Parliament to establish courts, including the Federal Courts, the Tax Court, and the Supreme Court of Canada. It also provided for a constitution "'similar in principle'" to the largely unwritten constitution of the United Kingdom and recognized Canada as a constitutional monarchy and federal state.
The process of amending the Constitution has evolved over time. Before the Constitution Act, 1982, the Canadian constitution could be formally amended by an act of the British Parliament or by informal agreement between the federal and provincial governments. However, in 1982, a set of procedures was enacted as part of Canada's Constitution, allowing it to be amended in Canada.
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Frequently asked questions
The Canadian Constitution is made up of core written documents and provisions that are constitutionally entrenched, take precedence over all other laws and place 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 Canadian Charter of Rights and Freedoms (the Charter) is a part of the Canadian Constitution. It sets out the rights and freedoms that Canadians believe are necessary in a free and democratic society. The Charter guarantees—and sets limits to—the fundamental rights and freedoms of Canadians.
The Constitution Act, 1867 is the foundational document of Canada's Constitution. It outlines the structure of government in Canada and the distribution of powers between the central Parliament and the provincial legislatures. It was originally known as the British North America Act, 1867.
