Simone Lawson
The Canadian Constitution is composed of several statutes and has roots dating back to the 13th century, including England's Magna Carta and the first English Parliament of 1275. The Constitution Act, 1867 (formerly the British North America Act, 1867) brought Canada into being with a constitution similar to that of the United Kingdom. The Constitution Act, 1982 contains the Canadian Charter of Rights and Freedoms and outlines procedures for amending the Constitution. The Charter guarantees the rights and freedoms of Canadians, including the rights of Indigenous peoples. The Constitution of Canada includes written and unwritten components, with the former taking precedence over all other laws and limiting government action.
| Characteristics | Values |
|---|---|
| Written components | The Constitution Act, 1982; the Canada Act 1982; the British North America Act, 1867 (now called the Constitution Act, 1867); the Statute of Westminster, 1931; and the Canadian Charter of Rights and Freedoms |
| Unwritten components | Constitutional conventions, such as the existence of the Prime Minister and the Cabinet; the reserve powers of the Canadian Crown; the fundamental principles of federalism, democracy, constitutionalism, the rule of law, and respect for minorities; and the Royal Proclamation of 1763 |
| Federal structure | The Constitution sets out the basic principles of democratic government in Canada and defines the powers of the three branches of government: the legislative, executive, and judicial |
| Amendments | The Constitution Act, 1982 created an amending formula, outlining the criteria that would have to be met to make future changes |
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What You'll Learn
The Constitution Act, 1982
The Charter had a significant impact on the expansion of judicial review, as it explicitly outlines the guarantee of rights and the role of judges in enforcing them. It also provided for future constitutional conferences and set out the procedures for amending the Constitution. Additionally, it entrenched provincial jurisdiction over natural resources and affirmed the principle of federalism, outlining the powers of the federal, provincial, and territorial governments.
Section 52 of the Constitution Act, 1982, states that "the Constitution of Canada is the supreme law of Canada", emphasising the supremacy of the Constitution over all other laws in the country. It also includes a schedule of repeals and renaming of certain constitutional enactments, such as the British North America Act, 1949, which was renamed the Newfoundland Act. The Act also addresses language rights, with Section 55 mandating the preparation of a French version of the Constitution of Canada.
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The British North America Act, 1867
The Act established the Dominion of Canada by uniting the North American British colonies of Canada, New Brunswick, and Nova Scotia. It also divided the former colony of Canada into two subdivisions, Canada West and Canada East, which were renamed Ontario and Quebec, respectively, and became full provinces.
The Act provides for a constitution "similar in principle" to the largely unwritten constitution of the United Kingdom, and recognizes Canada as a constitutional monarchy and federal state. It establishes the Governor General, who represents the King, and the Queen's Privy Council for Canada. It also sets out the composition of the Commons, with 308 members from across the provinces.
The Act also includes provisions for the rights of Indigenous peoples, with Section 91(24) providing that the federal government has legislative jurisdiction for "Indians and lands reserved for the Indians". This empowered the Canadian government to act as if the treaties between Indigenous peoples and the British Crown preceding Confederation did not exist.
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The Canadian Charter of Rights and Freedoms
The Charter sets out the rights and freedoms that Canadians believe are necessary in a free and democratic society. It is a product of months of negotiations between the federal and provincial governments, with over 300 presentations from various groups, including women, Aboriginal people, people with disabilities, and ethnic and cultural minorities. More than half of the committee's recommendations are included in the final document.
One of the key aspects of the Charter is its protection of human rights, including the rights of Indigenous peoples (Indian, Inuit, and Métis) in Canada. Section 35 of the Constitution Act recognises and affirms Aboriginal rights related to the historical occupancy and use of the land, as well as treaty rights set out in agreements with the Crown. The Charter also guarantees the rights of Indigenous peoples under the Royal Proclamation of 1763, which specified that they would retain ownership of lands they had not ceded or sold.
The Charter addresses language rights in Canada, particularly in the context of education. It grants Canadian citizens in Quebec the right to have their children educated in English if they received their primary instruction in English in Canada. Similarly, it grants citizens in the predominantly English-speaking provinces and territories the right to have their children educated in French under certain conditions.
The Charter does not affect the distribution of powers between the provinces, territories, and the federal government. The powers of these governments are outlined in the Constitution Act, 1867, and other relevant acts, such as the Yukon Act, the Northwest Territories Act, and the Nunavut Act.
Overall, the Canadian Charter of Rights and Freedoms plays a crucial role in safeguarding the rights and freedoms of Canadians, ensuring that Canada functions as a free and democratic society.
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Constitutional conventions
Canada's constitution has roots in the 13th century, including England's Magna Carta and the first English Parliament of 1275. The Constitution of Canada comprises core written documents and provisions that are constitutionally entrenched, taking precedence over all other laws and placing substantive limits on government action.
The executive power in Canada is vested in the monarch, but it is exercised at the federal level by the governor general, whose power is limited by constitutional convention and statute law. The governor general is appointed by the prime minister and lacks democratic legitimacy, so they always follow the prime minister's advice. The prime minister and other ministers form the Cabinet, which is responsible to Parliament for government business.
The reserve powers of the Canadian Crown are the remnants of the powers once held by the British Crown, reduced over time by the parliamentary system. These include 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.
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The Royal Proclamation of 1763
The proclamation renamed the north-easterly portion of the former French province of New France as the Province of Quebec, which was roughly coextensive with the southern third of contemporary Quebec. The territory northeast of the St. John River on the Labrador coast was reassigned to the Newfoundland Colony. The remaining lands west of Quebec and west of the line running along the crest of the Allegheny Mountains became (British) Indian Territory, where First Nations people "should not be molested or disturbed" by settlers. The proclamation also established an appointed colonial government and served as the constitution of Quebec until 1774.
The Royal Proclamation is a foundational document in the relationship between First Nations people and the Crown and is of legal importance to First Nations in Canada. It is the first legal recognition of aboriginal title, rights, and freedoms, and it imposes a fiduciary duty of care on the Crown. It is recognised in the Constitution Act, 1982, partly due to direct action by Indigenous peoples of Canada, known as the Constitution Express movement of 1980-1982. The proclamation also laid the foundation for a constitutional recognition and protection of First Nations rights in Canada and served as the basis of the treaty-making process throughout the country.
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