Simone Lawson
The Canadian Constitution is the supreme law of Canada, outlining the country's system of government and the civil and human rights of its citizens and non-citizens. It is a complex mix of statutes, orders, court decisions, and generally accepted practices known as constitutional conventions. The most important part of the Canadian Constitution is arguably 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 part of the Constitution Act, 1982, which also includes the Canada Act 1982, and outlines the rules for changing the Constitution.
| Characteristics | Values |
|---|---|
| Supreme law of Canada | Constitution Act, 1867; the Statute of Westminster, 1931; the Constitution Act, 1982; any amendments to these acts |
| Rights and freedoms of citizens | Rights of Indigenous peoples; treaty rights; equality rights; language rights; rights of official language minorities |
| Powers of the federal, provincial and territorial governments | Executive power held by the King, but exercised by the Prime Minister and Cabinet; powers of the Governor General and Lieutenant-Governors |
| Democratic government | Elected legislatures; right to vote; respect for human dignity, justice, equality, and diversity of beliefs |
| Amending the Constitution | Requires agreement from most provinces; includes an amending formula |
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What You'll Learn
The Canadian Charter of Rights and Freedoms
The Charter guarantees rights such as equality, democracy, and mobility. It ensures freedom of conscience, religion, thought, belief, opinion, and expression, including freedom of the press and other media. It also protects the right to peaceful assembly and association, such as the right to join a trade union. The Charter applies to the Parliament and Canadian government, as well as provincial legislatures and governments, within their respective authorities.
The rights and freedoms in the Charter are not absolute and can be limited to protect other rights or national values. For example, freedom of expression may be restricted by laws against hate speech or child pornography. The Charter also provides for certain rights exclusive to Canadian citizens, such as the right to vote and the right to enter, remain in, and leave Canada.
Before the Charter came into effect, other laws protected similar rights and freedoms, such as the Canadian Bill of Rights enacted in 1960. However, the Bill of Rights was not part of the Constitution. The Charter has since been a source of change and progress, helping to bring Canadian laws in line with societal values. For instance, it has reinforced the rights of official language minorities and led to the recognition of minority and disadvantaged groups' rights.
The Charter is officially named Part I of the Constitution Act, 1982, and it is the most important law in Canada, providing a framework for a free and democratic society.
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The Constitution Act, 1982
One of the most notable aspects of the Constitution Act, 1982, is the inclusion of the Canadian Charter of Rights and Freedoms, which serves as a bill of rights safeguarding the political, legal, and human rights of Canadians from all levels of government. This Charter, constituting Part I of the Act, is underpinned by the principle of unifying Canadians around a shared set of values and rights. It expands the scope of judicial review and empowers courts to strike down laws that contravene Charter rights, promoting greater consistency with the Constitution, which holds supreme authority in Canada.
The Act also recognises and affirms the rights of Indigenous peoples in Canada, specifically Aboriginal and treaty rights. Section 35 of the Act safeguards the activities, practices, and traditions integral to the distinct cultures of Aboriginal peoples, while also protecting their land rights. This section extends these rights to Indian, Inuit, and Métis peoples, ensuring gender equality in their enjoyment.
Additionally, the Constitution Act, 1982, introduced amendments to the British North America Act, 1867, which was subsequently renamed the Constitution Act, 1867. It entrenched provincial jurisdiction over natural resources and outlined procedures for future amendments to the Constitution. This process was necessary to transfer the power to amend the Constitution from the British Parliament to Canadian governments, marking a significant step in Canada's constitutional evolution.
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The Constitution Act, 1867
The Act provides for a constitution “similar in principle” to the largely unwritten constitution of the United Kingdom, recognising Canada as a constitutional monarchy and federal state. It outlines the legal foundations of Canadian federalism and defines the powers of the three branches of government.
The Government of Canada is structured into three branches: the legislative branch, the executive branch, and the judicial branch. The legislative branch consists of the King (represented by the Governor General), the Senate, and the House of Commons. The executive branch, or "the government", is usually referred to as the Prime Minister and other Ministers, forming the Cabinet, which is responsible for government business. The judicial branch includes the Supreme Court, which interprets the laws and reviews the actions of the legislative and executive branches to ensure they align with the Constitution.
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The British North America Act, 1867
The Act provides for a constitution "similar in principle" to the largely unwritten constitution of the United Kingdom and recognises Canada as a constitutional monarchy and federal state. It outlines the legal foundations of Canadian federalism and defines the powers of the three branches of government. The Act also includes provisions for the protection of the rights of Indigenous peoples, including Aboriginal rights and treaty rights.
The Act also includes provisions related to the composition of the House of Commons, with a total of 308 members representing the different provinces. It outlines the process for the election of members to the House of Commons, with the Governor General issuing writs addressed to returning officers. The Act also sets out the electoral districts and electoral laws and voting qualifications, with some provisions for revision. Additionally, the Act allows the House to elect its own speaker and includes provisions for the replacement of the speaker in the event of death or prolonged absence.
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The Canadian Constitution's evolution
The Canadian Constitution has evolved significantly since the country's formation, with the Constitution Act of 1982 serving as a pivotal moment in its development.
When Canada was established, it was a self-governing British colony, and the British North America Act of 1867, now known as the Constitution Act of 1867, codified many of its constitutional rules. This act recognised Canada as a constitutional monarchy and a federal state, outlining the legal foundations of Canadian federalism. It also provided a framework for the country's system of government, including the powers of the governor general and provincial lieutenant-governors, as well as the structure of the original four provinces. However, major changes to the Constitution still required approval from the United Kingdom Parliament.
Over time, the Constitution evolved through court interpretations and the inclusion of older documents, such as the Treaty of Paris (1763) and the Quebec Act (1774). In 1982, Canada gained complete independence from Britain with the Constitution Act, 1982, which included an amending formula and the Canadian Charter of Rights and Freedoms. This charter, which is part of the Constitution, outlines the rights and freedoms Canadians believe are necessary in a free and democratic society. It also protects the rights of Indigenous peoples, including Aboriginal and treaty rights.
The process of "patriating" the Constitution from the United Kingdom involved months of negotiations between the federal and provincial governments, demonstrating the complexity of amending Canada's Constitution. This complexity is further emphasised by the requirement for most provinces to agree on significant changes, which can be challenging due to disagreements between provinces.
While the Constitution has core written documents, it also includes unwritten principles and conventions that play a crucial role. These unwritten aspects, such as democracy, fill in the "gaps" in the text and guide courts in interpreting the Constitution. Additionally, constitutional conventions, though not judicially enforceable, contribute to the overall framework of Canada's governance.
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Frequently asked questions
The Canadian Constitution is the supreme law in Canada, and as such, all of its parts are important. However, the Canadian Charter of Rights and Freedoms is considered by some to be the most important part of the Constitution as it sets out the rights and freedoms that Canadians believe are necessary in a free and democratic society.
The Canadian Constitution is a set of laws that outlines Canada's system of government and the civil and
The Canadian Constitution includes core written documents and provisions that are constitutionally entrenched, such as the Constitution Act, 1867 (formerly the British North America Act, 1867), and the Canadian Charter of Rights and Freedoms. It also includes unwritten principles such as democracy, which is used as a tool to interpret the Constitution.
