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The Constitution of Canada is the supreme law in Canada. It is an amalgam of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens.
The composition of the Constitution of Canada is defined in section 52(2) of the Constitution Act, 1982 as consisting of the Canada Act 1982 (including the Constitution Act, 1982), all acts and orders referred to in the schedule (including the Constitution Act, 1867), and any amendments to these documents. Effectively, this includes all British legislation that predates or modifies the British North America Act. (see list of Canadian constitutional documents) The Supreme Court of Canada held that the list is not exhaustive and includes unwritten doctrines as well [1]. Nevertheless, almost all constitutional jurisprudence focuses on the Constitution Act, 1867, the Constitution Act, 1982, including the Charter of Rights and Freedoms, and the so-called "unwritten constitution".
History of the Constitution
The first semblance of a Constitution for Canada was the Royal Proclamation of 1763. The Act renamed Canada "The Province of Quebec" and redefined its borders and established a British-appointed colonial government. The proclamation was considered as the de facto constitution of Quebec until 1774 when the British government passed the Quebec Act of 1774 which set out many procedures of governance in the area of Quebec. It extended the boundaries of the colony and adopted the British criminal code among other things.
The colony of Canada received its first full constitution in the Constitutional Act of 1791 which established much of the composition of the government. This was later superseded by the British North America Act in 1867 which established the Dominion of Canada.
In 1931, the British Parliament passed the Statute of Westminster, 1931 (22 Geo. V, c.4 (U.K.)). This Act gave all dominion countries equal legislative authority with the United Kingdom. This was followed up in 1982, when the British Parliament passed the Canada Act, 1982 ((U.K.) 1982, c.11) giving up all remaining constitutional and legislative ties to Canada and accepted as law the Constitution Act of 1982. The Constitution Act of 1982 was enacted as Schedule B (i.e. appendix B) of the Canada Act of 1982.
With the introduction of the Canada Act and the accompanying Charter, much of Constitutional law in Canada has changed. The Canada Act has entrenched many constitutional conventions and has made amendments significantly more difficult (see amendement formula). The Charter has shifted the focus of the Constitution to individual and collective rights of the inhabitants of Canada. Before the enactment of the Canadian Charter of Rights and Freedoms in 1982, civil rights and liberties had no solid constitutional protection in Canada. Whenever one level of government passed a law that seemed oppressive to civil rights and liberties, Canadian constitutional lawyers had to argue creatively, such as by saying that the oppressive law violates division of federal and provincial powers or by citing some other technical flaw that had little to do with the concept of civil rights and liberties. Since 1982, however, the Charter has become the most often cited part of the Constitution and has thus far solidified the protection of rights for people in Canada.
Constitution Act, 1867
This was an Act of the British Parliament, originally called the British North America Act 1867, that created the Dominion of Canada out of three separate provinces in British North America and allowed for subsequent provinces and colonies to join this union in the future. It outlined Canada's system of government, which combines Britain's Westminster model of parliamentary government with division of powers (federalism). Although it is one of many British North America Acts to come, it is still the most famous of these and is understood to be the document of Canadian Confederation (i.e. union of provinces and colonies in British North America). With the patriation of the Constitution in 1982, this Act was renamed Constitution Act, 1867. In recent years, the Constitution Act, 1867 has mainly served as the basis on which the division of powers between the provinces and federal government have been analyzed.
Constitution Act, 1982
This was an Act by the Canadian Parliament requesting full political independence from Britain. Part V of this Act created a constitution-amending formula that did not require an Act by the British Parliament. Further, Part I of this Act is the Canadian Charter of Rights and Freedoms which outlines the civil rights and liberties of every citizen in Canada, such as freedom of expression, of religion, of mobility, etc. Part II deals with the rights of Canada's Aboriginal peoples.
Canadian Charter of Rights and Freedoms
As noted above, this is Part I of the Constitution Act, 1982. The Charter is the constitutional guarantee of collective and individual rights. It is a relatively short document and written in plain language in order to ensure accessibility to the average citizen. It is said that it is the part of the constitution that has the greatest impact on Canadians' day-to-day lives, and has been the fastest developing area of constitutional law for many years.
Amending formula
With the Constitution Act, 1982, amendments to the constitution must be done in accordance with Part V of the Constitution Act, 1982 which provides for five different amending formulas. Amendments can be brought forward under section 46(1) by any province or either level of the federal government. The general formula is set out in section 38(1), known as the "7/50 formula", requires: (a) assent from both the House of Commons and the Senate; (b) the approval of two-thirds of the provincial legislatures (at least seven provinces), representing at least 50% of the population (effectively, this would include at least Quebec or Ontario, as they are the most populous provinces). This formula specifically applies to amendments related to the proportionate representation in Parliament, powers, selection, and composition of the Senate, the Supreme Court, the addition of provinces or territories. The other amendment formulas are for exceptional cases as provided by in the Act:
- In the case of an amendment related to the Office of the Queen, the number of senators, the use of either official language (subject to section 43), or the composition of the Supreme Court, the amendment must be adopted by unanimous consent of all the provinces in accordance with section 41.
- However, in the case of an amendment related to provincial boundaries or the use of an official language within a province alone, the amendment must be passed by the legislatures affected by the amendment (section 43).
- In the case of an amendment that affects the federal government alone, the amendment does not need approval of the provinces (section 44). The same applies to amendments affecting the provincial government alone (section 45).
Unwritten Sources of the Canadian Constitution
The existence of an unwritten constitution was reaffirmed by the Supreme Court in Reference re Secession of Quebec.
The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading.
In practice, there have been three sources of constitutional law:
Conventions: Constitutional conventions form part of the Constitution, but they are not legally enforceable. They include the existence of the Parliamentary Cabinet, the fact that the Governor General is required to give assent to Bills, and the requirement that the Prime Minister call an election upon losing a vote of non-confidence.
Royal Prerogative: Remnants of the powers once held by the British Crown, reduced over time by the Parliamentary system. Primarily, these are the 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.
Unwritten Principles: Principles that are incorporated into the Canadian Constitution by reference from the preamble of the Constitution Act, 1867. Unlike conventions, they are legally binding. Amongst the recognized Constitutional principles are federalism, democracy, constitutionalism and the rule of law, and respect for minorities[2]. Other principles include responsible government and judicial independence.
External links
Reference
- ^ New Brunswick Broadcasting Co. v. Nova Scotia [1993] 1 S.C.R. 319
- ^ these were identified in Reference re Secession of Quebec [1998] 2 S.C.R. 217
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