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The Constitution of Canada (La Constitution du Canada in French) is the supreme law in Canadamarker; the country's constitution is an amalgamation of codified act and uncodified traditions and convention. 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 subsection 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, formerly the British North America Act), and any amendments to these documents. The Supreme Court of Canadamarker held that the list is not exhaustive and includes unwritten doctrines as well.

History of the Constitution

The first semblance of a Constitution for Canada was the Royal Proclamation of 1763. The Act renamed the northeasterly portion of the former French Province of New France. The newly British “Province of Quebec” was roughly coextensive with the lower third of contemporary Quebec. The Proclamation, which established an appointed colonial government, was the “de facto” constitution of Quebec until 1774, when the British Parliament passed the Quebec Act, which expanded the province’s boundaries to the Ohio and Mississippi rivers. Significantly, the Quebec Act also replaced the French criminal law presumption of ‘guilty until proven innocent’ with the English criminal law presumption of ‘innocent until proven guilty’; but the French code or civil law system was retained for non-criminal matters.

The Treaty of Paris of 1783 ended the American War for Independence and sent a wave of monarchist refugees northward to Quebec and Nova Scotia. In 1784, the two provinces were divided. Nova Scotia, Cape Breton Island (rejoined to Nova Scotia in 1820), Prince Edward Island, and New Brunswick; while Quebec was split into Lower Canada (southerly Quebec) and Upper Canada (southerly through lower northern Ontario and all or parts of Michigan until 1796, 1818 and 1847).

The winter of 1837-38 saw rebellion in both of the Canadas, with the result they were rejoined as the Province of United Canada in 1841. This was reversed by the British North America Act in 1867 which established the Dominion of Canada.

Initially, on 1 July 1867, there were four provinces in confederation as “One dominion under the name of Canada”: Canada West (former Upper Canada; now, Ontariomarker), Canada East (former Lower Canada; now, Quebecmarker), Nova Scotiamarker, and New Brunswickmarker. Title to the Northwest Territoriesmarker was transferred by the Hudson’s Bay Company in 1868, and the Province of Manitobamarker was the first created out of it, and the first province created by Ottawa instead of London, in 1870. British Columbiamarker joined confederation in 1871, followed by Prince Edward Island in 1873. Albertamarker and Saskatchewanmarker were created by Ottawa in 1905, followed by the Yukon Territorymarker in 1912. The Dominion of Newfoundland, Britain’s oldest colony in the Americas, joined Canada as a Provincemarker in 1949. Nunavut Territorymarker was created in 1999.

An Empire Conference in 1931 that included the leaders of all dominions, and representatives from India (which then included Burma, Bangladesh and Pakistan) produced the Statute of Westminster. The Statute, an essential transitory step from “British Empire” to “Commonwealth of Nations”, provided that all existing dominions became fully independent of the United Kingdom upon its ratification by the dominion legislatures (for Canada and Australia, the federal legislatures only); and all new dominions would be fully independent upon the grant of dominion status. There were two exceptions – Newfoundland and Canada.

Newfoundland never ratified the Statute, so that it was still subject to imperial authority when its entire system of government and economy collapsed utterly in the mid-1930’s. Canada did ratify the Statute, but had requested an exception be made under which it did ‘’not’’ acquire full independence because the Canadian federal and provincial governments could not agree on an amending formula for the Canadian Constitution. It would be another 50 years before this was achieved. In the interim, the British Parliament periodically passed enabling acts and other legislation to retroactively legitimate the actions of the Canadian Parliament and government. This was never anything but a rubber stamp, but it did mean Canada was still legally a colony instead of a fully-fledged member of the sisterhood of nation-states.

The patriation of the Canadian Constitution was achieved in 1982 when the British and Canadian parliaments passed parallel acts – the Canada Act, 1982 ([UK] 1982, c.11) in London, and the Constitution Act 1982 in Ottawa. Thereafter, the United Kingdom was formally absolved of any remaining responsibility for, or jurisdiction over, Canada; and Canada became responsible for her own destiny. In a formal ceremony on Parliament Hill in Ottawa, the Queen signed both acts into law on April 17, 1982.

The Canada Act/Constitution Act included the Canadian Charter of Rights and Freedoms. Prior to the Charter, there were various statutes which protected an assortment of civil rights and obligations, but nothing was enshrined in the Constitution until 1982. The Charter has thus placed a strong focus upon individual and collective rights of the people of Canada.

The Act also codified many previously oral constitutional conventions, and has made amendment of the Constitution significantly more difficult. Previously, the Canadian federal constitution could be amended by solitary act of the Canadian or British parliaments, by formal or informal agreement between the federal and provincial governments, or even simply by adoption as ordinary custom of an oral convention or unwritten tradition that was perceived to be the best way to do something – or just the way things had always worked. (Even today, there is no mention of the person called “Prime Minister” anywhere in the Canadian Constitution, despite this person being head of the Canadian government – but as everybody already knew that when Canada was created, it has never been considered necessary to write it down.) Amendments must now conform to certain specified provisions in the written portion of the Canadian Constitution (see amendment formula).

Enactment of the Charter of Rights and Freedoms has also fundamentally changed much of Canadian constitutional law. Before the Charter, 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. Even Magna Charta, which does have constitutional status in Canada, was occasionally called into service in legal argument. Since 1982, however, the arguments have been easier to make, because lawyers have been able to cite the relevant sections of the constitution rather than rely upon legal abstraction.

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 (Province of Canada, New Brunswickmarker, and Nova Scotiamarker) 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 sovereignty (federalism). Although it is the first of twenty British North America Acts, 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

Endorsed by all the provincial governments except Quebec's, 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, and of mobility. Part II deals with the rights of Canada's Aboriginal people.

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 and 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), the amending formula, 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).

Vandalism of the paper proclamation

In 1983, Toronto artist Peter Greyson entered Ottawa's National Archives (known today as Library and Archives Canadamarker) and poured red paint over a copy of the proclamation of the 1982 constitutional amendment. He said he was displeased with the federal government's decision to allow U.S. missile testing in Canada, and had wanted to "graphically illustrate to Canadians" how wrong the government was. A grapefruit-sized stain still remains on the original document. Specialists opted to leave most of the paint intact fearing attempts at removing it would only do further damage.

Sources of the Constitution

There are three general methods of constitutional entrenchment:

  • 1. Specific mention as a constitutional document in section 52(2) of the Constitution Act, 1982, such as the Constitution Act, 1867.
  • 2. Constitutional entrenchment of an otherwise statutory English, British, or Canadian document because of subject matter provisions in the amending formula of the Constitution Act, 1982, such as provisions with regard to the monarchy in the English Bill of Rights 1689 or the Act of Settlement 1701. English and British statutes are part of Canadian law because of the Colonial Laws Validity Act, 1865, section 129 of the Constitution Act, 1867, and the Statute of Westminster 1931. Those laws then became entrenched when the amending formula was made part of the constitution.
  • 3. Reference by an entrenched document, such as the Preamble of the Constitution Act, 1867's entrenchment of written and unwritten principles from the constitution of the United Kingdom or the Constitution Act, 1982's reference of the Proclamation of 1763.

Unwritten sources

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 unwritten constitutional law:

Conventions: Constitutional convention form part of the Constitution, but they are not legally enforceable. They include the existence of the Prime Minister and 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: Reserve powers of the Canadian Crown; being 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. Other principles include responsible government, judicial independence and an Implied Bill of Rights. In one case, the Provincial Judges Reference (1997), it was found a law can be held invalid for contradicting unwritten principles, in this case judicial independence.

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