Malcolm Rivera
The Constitution Act of 1982 is a landmark document in Canadian history, marking the country's full independence from Britain. The Act was signed by Queen Elizabeth II on April 17, 1982, and brought significant changes to Canada's Constitution, including the introduction of the Canadian Charter of Rights and Freedoms. This Charter, a bill of rights to protect the human, legal, and political rights of Canadians, is often seen on posters with the signature of the prime minister of the day. However, it is important to note that the Charter is not a standalone document but Part I of the Constitution Act, 1982. The Act's signing was the culmination of an 18-month political and legal struggle, marking the end of efforts by successive governments to patriate the Constitution and giving Canada the power to amend its Constitution without British involvement.
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What You'll Learn
The Canadian Charter of Rights and Freedoms
The Charter was drafted by the federal government in consultation with provincial governments in the years leading up to the passage of the Constitution Act, 1982. It was preceded by the Canadian Bill of Rights, created in 1960 by the government of John Diefenbaker. However, this was only a federal statute and was limited in its effectiveness as it did not directly apply to provincial laws. This, along with the desire to entrench the principles of the Universal Declaration of Human Rights, motivated the creation of the Charter.
The Charter has had a significant impact on judicial review in Canada. It is more explicit in its guarantee of rights and the role of judges in enforcing them than the Canadian Bill of Rights. The courts have struck down unconstitutional statutes or parts of statutes when confronted with violations of Charter rights. Additionally, Section 24 of the Charter grants new powers to the courts to enforce more creative remedies and exclude improperly obtained evidence in criminal trials.
The Charter was introduced as part of Canada's process of patriating its constitution, bringing it under Canadian control and ending the power of the British Parliament to amend it. This process was necessary because, after the Statute of Westminster in 1931, Canada allowed the British Parliament to retain the power to amend its constitution. The Constitution Act, 1982, also guaranteed the rights of Aboriginal peoples in Canada, entrenched provincial jurisdiction over natural resources, and set out procedures for future amendments to the Constitution.
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Canada's sovereignty
The Constitution Act, 1982, introduced several amendments to the BNAA, including renaming it the Constitution Act, 1867. This change reflected Canada's evolving relationship with Britain, as the BNAA had previously served as the country's highest law. The patriation of the Constitution was a crucial step in Canada's journey toward sovereignty, as it brought the power to modify the nation's fundamental laws closer to home.
Another significant aspect of the Constitution Act, 1982, was the inclusion of the Canadian Charter of Rights and Freedoms, which became a central component of the country's Constitution. This Charter was drafted through consultations between the federal government and provincial governments, demonstrating a collaborative effort to protect the rights of Canadians. The Charter of Rights and Freedoms guaranteed fundamental political, legal, and human rights for all Canadians, unifying the nation around a set of core principles. It also addressed issues of Indigenous peoples' rights, sexual equality, and equal rights for individuals with disabilities.
The enactment of the Constitution Act, 1982, had a notable impact on judicial review in Canada. The explicit nature of the Charter regarding the guarantee of rights and the role of judges in enforcing them empowered the courts to strike down unconstitutional statutes or portions thereof. Additionally, the Act provided provincial legislatures with the authority to amend their respective constitutions through the unilateral amending procedure outlined in Section 45. This provision further emphasised Canada's sovereignty and capacity for self-governance.
The Constitution Act, 1982, also set out procedures for future constitutional amendments, ensuring a clear path for ongoing revisions to Canada's highest laws. This aspect of the Act provided a mechanism for the country to continue evolving its legal framework in a manner that aligns with the changing needs and values of its citizens. While Quebec's place in the Constitution was a point of contention at the time, the Act ultimately solidified Canada's sovereignty and unified the country under a shared set of rights and freedoms.
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Amendments to the British North America Act, 1867
The British North America Act, 1867, was amended and renamed the Constitution Act, 1867, in 1982 when Canada patriated its constitution. This act was a major part of the Constitution of Canada, creating a federal dominion and outlining the Canadian government's structure and operations, including the House of Commons, the Senate, the justice system, and the taxation system.
The 1982 patriation of the Constitution of Canada transferred the country's highest law, the British North America Act, from the authority of the British Parliament to Canada's federal and provincial legislatures. This process was necessary because, after the Statute of Westminster in 1931, Canada allowed the British Parliament to retain the power to amend its constitution. The Constitution Act, 1982, introduced several amendments to the British North America Act, 1867, and ended the need for Canada to appeal to the British Parliament for constitutional changes.
The British North America Act, 1867, was amended in 1915 to expand the Senate of Canada by giving the Western Canadian provinces 24 senators, matching the number guaranteed to Ontario, Quebec, and the Maritime Provinces. This act also guaranteed Newfoundland six senators if it joined the Confederation, which it did in 1949. Additionally, this act amended the British North America Act, 1867, to guarantee that no province would have fewer members of the House of Commons than of the Senate.
In 1982, further amendments were made to the British North America Act, 1867, as part of the Constitution Act, 1982. Section 92A was added, giving the provinces greater control over non-renewable natural resources. Section 1 of the British North America Act, 1867, was renamed as the Constitution Act, 1867, and Section 20 was repealed and replaced by Section 5 of the Canadian Charter of Rights and Freedoms. Sections 91(1) and 92(1) were also repealed, and a new section, 92A, was added.
The Constitution Act, 1982, also included the enactment of the Canadian Charter of Rights and Freedoms, guaranteeing the rights of Aboriginal peoples in Canada, entrenching provincial jurisdiction over natural resources, providing for future constitutional conferences, and setting out procedures for future constitutional amendments. The Act provided that the Colonial Laws Validity Act no longer applied to the British Dominions, including Canada, although Canada could not amend the British North America Act, which remained subject to amendment only by the British Parliament.
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Rights of Indigenous Peoples
The Constitution Act, 1982, is a significant document in Canadian history, marking the country's full independence and patriation of its Constitution. This Act includes the Canadian Charter of Rights and Freedoms, which outlines the rights of all Canadians, including Indigenous Peoples.
The rights of Indigenous Peoples, or Aboriginal rights, are specifically addressed in Section 35 of the Constitution Act, 1982. This section recognises and affirms the existing rights of Indigenous Peoples, including Indian, Inuit, and Métis peoples. It is important to note that these rights are not granted by Section 35 but are instead acknowledged as pre-existing rights that have been further defined for each group. The inclusion of Section 35 in the Constitution Act was the result of campaigns and demonstrations by Aboriginal groups, who successfully advocated for the protection and recognition of their rights.
The recognition of Aboriginal rights in the Constitution Act is based on the continued occupation of lands by Indigenous Peoples before European settlement. This recognition has had legal implications, guiding court and government decisions that directly impact Indigenous communities. However, some critics argue that there is a disconnect between the rights outlined in Section 35 and the daily lives of Aboriginal Peoples, who continue to face legal consequences for exercising their Aboriginal rights, such as hunting or fishing.
The inclusion of Section 35 in the Constitution Act, 1982, was a significant step forward in acknowledging the rights of Indigenous Peoples in Canada. It provided a legal framework for the protection and recognition of their rights, ensuring that the federal government could not override these rights. However, the implementation and enforcement of these rights remain an ongoing process, with Aboriginal groups continuing to advocate for their rights and address any disparities between the law and their daily lives.
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The role of the British Parliament
The Constitution Act, 1982, marked a significant shift in the role of the British Parliament in relation to Canada. Prior to this Act, under the British North America Act of 1867 (also known as the Constitution Act, 1867), the British Parliament had the authority to amend Canada's Constitution. This meant that any changes to Canada's highest law had to be approved by Britain.
The Constitution Act, 1982, was a result of Canada's efforts to patriate its Constitution and gain full independence. The Act introduced several amendments to the British North America Act, 1867, including renaming it the Constitution Act, 1867. The process of patriation transferred the power to amend the Constitution from the British Parliament to Canada's federal and provincial legislatures.
The British Parliament, in response to the request from the Canadian Senate and House of Commons, passed the Canada Act 1982 to end its authority and transfer the power to amend the Constitution to Canada's federal and provincial governments. This Act was a significant step in recognizing Canada's sovereignty and ending Britain's involvement in amending the Canadian Constitution.
The enactment of the Canada Act 1982 and the Constitution Act, 1982, marked a turning point in the role of the British Parliament. These Acts ensured that subsequent acts of the British Parliament would have no effect in Canada, and that amendments to the Canadian Constitution would be made under the amending formulas set out in Part V of the Constitution Act, 1982. The new amending formula gave Canada the ability to change its Constitution without seeking approval from Britain, thus ending the role of the British Parliament in Canadian law.
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Frequently asked questions
On April 17, 1982, Queen Elizabeth II signed the proclamation bringing the Constitution Act, 1982, into force for Canada. The Registrar General of Canada and the Attorney General of Canada were the other signatories, as per British and Canadian rules.
The Constitution Act, 1982, was a landmark document in Canadian history as it achieved full independence for Canada. It patriated the Constitution, transferring the highest law, the British North America Act, from the authority of the British Parliament to Canada's federal and provincial legislatures.
The Constitution Act, 1982, enacted the Canadian Charter of Rights and Freedoms, which guaranteed the rights of Aboriginal peoples of Canada, entrenched provincial jurisdiction over natural resources, and provided for future constitutional conferences.
The process of patriating the Canadian Constitution involved an 18-month political and legal struggle, with fierce opposition from the federal Conservatives led by Joe Clark. Prime Minister Pierre Trudeau managed to convince nine out of ten provinces to consent to patriation by agreeing to the addition of a Notwithstanding Clause to limit the application of the Canadian Charter of Rights and Freedoms.
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