Constitution of Canada

I

Introduction

Constitution of Canada, group of written documents and unwritten conventions that outline the political and legal foundations of Canadian society. The constitution of Canada identifies the country’s political boundaries, describes fundamental rights guaranteed to Canadian citizens, and defines rules and procedures that guide the country’s political and legal systems.

II

ORIGINS

Prior to 1867, the territory that would become Canada was administered by Great Britain. France had established colonies in Canada during the 17th century, and Britain had conquered these colonies in the 18th century. The British Parliament created the Dominion of Canada through the British North America Act of 1867 (now called the Constitution Act of 1867). The act included a statement that Canada has a “Constitution similar in Principle to that of the United Kingdom.” Consequently, Canada received many of its constitutional traditions from Britain, including parliamentary democracy and an independent judiciary.

However, the constitution of Canada differs from the British constitution in four important ways. First, most aspects of the British constitution are unwritten and depend upon tradition and convention, while most aspects of the Canadian constitution are written. Second, in the United Kingdom all legal authority can be traced to one source: the monarch in Parliament. In contrast, Canada is a federal state with power divided between the national government and the legislatures of the ten provinces and three territories. Third, Britain does not have a bill of rights as part of its constitution. In 1982 Canada incorporated the Charter of Rights and Freedoms into its constitution, which guarantees individual and group rights. Fourth, all British citizens are presumed to be equal under the law. In contrast, the constitution of Canada explicitly grants rights and privileges to minority groups and indigenous peoples.

It is often said that the Canadian constitution falls somewhere between the British and U.S. constitutions. Like the British constitution, significant parts of the Canadian constitution are unwritten, there is a fusion of executive and legislative power, and the British monarchy still plays a symbolic role in government. However, like the Constitution of the United States, the Canadian constitution defines a federal system, Canada’s courts have the power of judicial review, and Canadian citizens are assured fundamental rights of liberty and equality.

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III

MAJOR ELEMENTS

Canada’s constitution consists of written documents and unwritten conventions. The written documents are a series of treaties, proclamations, and statutes that commit British and Canadian governments to a set of basic rules and principles. There are approximately 30 written constitutional documents, some written in the 19th century, others created during the late 20th century. Because Canada’s constitution is composed of many parts and has been revised over the course of many decades, it is often compared to a “living tree.”

The constitution of Canada has many more parts than the Constitution of the United States, which consists of just one primary document. Unlike colonial America’s sudden separation from the British Empire, Canada’s separation from the United Kingdom has been slow and peaceful, evolutionary rather than revolutionary. Canada’s many constitutional documents reflect this process of negotiated separation. Also, the Canadian provinces—especially Québec—have never been comfortable with the powers possessed by Canada’s federal government and have continually sought to renegotiate the balance of power defined by the constitution.

Constitutional documents tend to be formal, rigid, and difficult to amend. But a living tree needs to be flexible to adapt to the winds of change. Conventions fulfill this function. Conventions are informal practices that develop to suit changing social, economic, and political conditions.

A

Documents

The two main documents that form the trunk of the Canadian constitution are the Constitution Act of 1867 and the Constitution Act of 1982. These acts are rooted in English common law that evolved from the 12th century onward. Key British principles, such as the rule of law and the promise of an independent judiciary, were transplanted into the Canadian constitution.

By the 1700s both France and England had established many colonies in areas that are now a part of Canada. Britain fought with France for control of its colonies, called New France, and won in the 1760s. By the terms of the Treaty of Paris, signed in 1763, most of New France was ceded to Britain. Under British rule, the colonies’ first constitutional document was the Royal Proclamation of 1763, which established colonial governors and recognized the sovereignty of aboriginal peoples. The proclamation did not satisfy the contending interests of British loyalists and the large French-speaking population. Several other acts were passed that attempted to address these shortcomings, including the Quebec Act of 1774, the Constitutional Act of 1791, and the Act of Union of 1840. But conflict continued between British loyalists and the descendants of French colonists.

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