Constitution of Canada

… a core concept in Governance and Institutions and Atlas100

ConstitutionOfCanada

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Concept description

The Department of Justice (reference below) characterizes the Constitution of Canada as the supreme law of Canada, and includes the Constitution Act, 1867, and the Constitution Act, 1982.

It notes that:

“When Canada was created, it was a self-governing British colony. The British North America Act, 1867, codified many constitutional rules for Canada, but major changes to the Constitution could only be made by the United Kingdom Parliament. In 1982, the Charter was enacted as part of Canada’s Constitution along with a set of procedures allowing the Constitution to be amended in Canada.”

The Department of Justice provides A Consolidation of the Constitution Acts 1867 to 1982 in HTML at http://laws-lois.justice.gc.ca/eng/Const/index.html and in pdf at http://laws-lois.justice.gc.ca/PDF/CONST_E.pdf, accessed 12 August 2016.

Malcolmson and Myers (reference below, page 20) describe how the Constitution of Canada reflects the fact that the Canadian form of government draws from both British and American forms:

“Like the Americans, we have entrenched many, if not most, of our constitutional rules in constitutional laws: the Constitution Act, 1867 and the Constitution Act, 1982. Like the British, however, we rely on constitutional conventions and organic statutes for a substantial number of our constitutional rules. Our entire system of responsible government, for example, is embedded in constitutional convention rather than constitutional law.”

Malcolmson and Myers (page 20) describe the main elements of two Constitution Acts in the following table:

Constitution Act, 1867
Constitution Act, 1982
Executive power

Legislative power

Provincial constitutions

Federal division of power

Judicial power

Charter of Rights and Freedoms

Aboriginal rights

Equalization and regional disparities

Amending formulas

Definition of the Canadian Constitution

Malcolmson and Myers (pages 23, 24) summarize the preamble and the 11 parts of the Constitution Act, 1867 as follows:

“The most noteworthy feature in the preamble is the suggestion that Canada is to have “a Constitution similar in Principle to that of the United Kingdom.” This clause is of the greatest importance for understanding the Canadian Constitution. As we have seen, the British Constitution is to a large extent based on conventions. In declaring that Canada’s Constitution is to be “similar in Principle to that of the United Kingdom,” the preamble serves notice that many of those conventions are to be incorporated into it. This would certainly include those conventions governing the operation of “responsible government”…

“Part I … deals with relatively unimportant preliminary matters.

“Part II establishes some basic points about the union of the provinces.

“Parts III and IV are much more important, for it is here that CA 1867 sketches the fundamental outlines of executive and legislative power in the federal government. …

 “Part V deals with “provincial constitutions” and describes some of their distinctive features. For the most part, the constitutions of the provinces are governed by the same principles as that of the federal government.

“In Part VI, we find the division of powers between the two levels of government. Of particular importance are the description of the legislative authority of the federal government in Section 91 and the list of provincial jurisdictions in Section 92.

“Part VII lays down some of the fundamental rules governing judicial power in Canada. Note, however, that nothing is said about the Supreme Court of Canada. Section 101 gives the federal Parliament the right to establish a “General Court of Appeal for Canada,” and in 1875, Ottawa used this power to create a supreme court in The Supreme Court of Canada Act. Because the Supreme Court of Canada is this country’s highest institution of judicial power, the act that establishes it must certainly be considered a constitutional act, even though it is not a constitutional law. Here, then, is a good example of a Canadian “organic statute.”

“Part VIII establishes various provisions governing the financial details of Confederation.

“Part IX lays down a number of miscellaneous provisions, including Section 133 on the use of the French and English languages.

“Part X, which committed the federal government to the immediate construction of the Intercolonial Railway between Quebec and Halifax, became obsolete upon the termination of that project and was repealed in 1893. It is a good example of the way in which a constitutional law is sometimes used in Canada to entrench guarantees that have nothing to do with constitutional matters.

“Part XI establishes two procedures for the admission of new provinces. Existing colonies, such as British Columbia or Prince Edward Island may be admitted to Canada by an act of the British Parliament if it receives a request to that effect by both the colony and the federal government of Canada. The federal government may pass acts of its own to create new provinces out of “Rupert’s Land” and did so when it founded the provinces of Manitoba, Saskatchewan, and Alberta. In either case, the act creating a new province is a constitutional measure and may thus be classified as an “organic statute.”

Malcolmson and Myers (page 26, 27) summarize the 7 parts of the Constitution Act, 1982 as follows:

“Part I is the Canadian Charter of Rights and Freedoms …

“Part II is a constitutional declaration of the rights of Canada’s Aboriginal peoples.

“Part III entrenches the federal government’s practice of making equalization payments to provinces whose revenues are below the national average. …

“The fourth part committed the governments of Canada, the provinces, and the territories to hold a conference on Aboriginal people’s constitutional concerns. The conference was held … and resulted in certain amendments to its Section 35.

“Part V outlines the new procedure for amending the Constitution of Canada …

“Part VI makes an amendment to Section 92 of CA 1867 strengthening the powers of provincial governments in the areas of energy, forestry, and non-renewable resources. …

“Part VII contains a number of miscellaneous provisions … the most noteworthy is Section 52, which gives a legal definition of the Constitution of Canada and proclaims in no uncertain terms its status as Canada’s “supreme law.”

Atlas topic, subject, and course

Constitutional Framework (core topic) in Governance and Institutions and Atlas100 Governance and Institutions.

Source

Department of Justice, at http://www.justice.gc.ca/eng/csj-sjc/just/05.html, accessed 11 August 2016.

Patrick Malcolmson and Richard Myers (2012), “The Constitution,” in The Canadian Regime: An Introduction to Parliamentary Government in Canada, 5th ed., Toronto: University of Toronto Press.

Page created by: Ian Clark, last modified on 12 August 2016.

Image: Justice Canada, A Consolidation of the Constitution Acts 1867 to 1982, at http://laws-lois.justice.gc.ca/PDF/CONST_E.pdf, accessed 11 August 2016.