Constitution of Canada

A

1

Constitution Act of 1867

In 1866 representatives from what are now the provinces of Nova Scotia, New Brunswick, Ontario, and Québec agreed to create the Dominion of Canada. The union’s members wanted to build a strong economy and counteract expansionism by the United States. This agreement was passed into law by the British Parliament as the British North America Act of 1867, later renamed the Constitution Act of 1867.

The Constitution Act of 1867 had five key features. First, it unified the Canadian colonies. (Since 1867 six provinces and three territories have joined the original four provinces in the union.) Second, the act established executive, legislative, and judicial branches of government. Third, it established an independent judiciary. Fourth, it guaranteed minority language rights. Fifth, and most importantly, it constructed Canada as a federal state. This meant that there were two levels of government: a central government based in Ottawa, Ontario, Canada, and the governments of the various provinces.

The original intent of the “fathers of confederation” was that most power and authority would be given to the central government, with only minor powers retained by the provinces. The Constitution Act of 1867 authorized the federal government to make laws concerning “peace, order and good government,” criminal law, trade and commerce, taxation, the judiciary, the military, and banking. The primary focus of provinces’ authority under the Constitution Act was “property and civil rights within the province” and “matters of a mainly local or private nature.” This attempt to centralize power in the federal government ultimately failed. Today, Canada is recognized as one of the most decentralized federal nations in the world.

One significant problem with the Constitution Act of 1867 was that it required any amendments to the Canadian constitution to be approved by the British government. It was very difficult to modify the constitution to keep pace with the changing needs of Canadian society. These problems were ultimately resolved by the Constitution Act of 1982.

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A

2

Constitution Act of 1982

The Constitution Act of 1982 patriated Canada’s constitution, allowing Canadian lawmakers to amend the constitution without significant involvement by the United Kingdom. It also established procedures that made it somewhat easier to pass constitutional amendments. Before the act was passed, no amendments could be made without the unanimous consent of the provinces. The Constitution Act of 1982 established the so-called 7 and 50 rule, which allows amendments to the Canadian constitution if seven provinces representing at least 50 percent of Canada’s population agree to the changes.

The Constitution Act of 1982 included guarantees of individual and group rights, collectively called the Canadian Charter of Rights and Freedoms. The act also recognized the rights of Canada’s indigenous people.

The leaders of the province of Québec refused to endorse the new constitution. They objected to the provisions of the new constitution and the process by which it was drafted. Most of Québec’s residents are descendants of French colonists, and its leaders wanted concessions in the new constitution that recognized and preserved the province’s unique culture. There have been several attempts to amend the constitution to acknowledge Québec’s status as a “distinct society” and to grant it greater authority than other provinces. These changes were formally proposed in the Meech Lake Accord of 1987 and the Charlottetown Accord of 1992. Neither of these proposals resulted in changes to the Canadian constitution, mainly because of opposition from the Canadian public. The Meech Lake Accord was never ratified, and the Canadian public rejected a referendum to enact the Charlottetown Accord.

B

Conventions

Two key conventions associated with the constitution relate to the role of the Supreme Court of Canada and the commitment to responsible government. Although the role of the Supreme Court is not precisely defined in the constitution, it has become a convention for the Court to be a primary adjudicator for constitutional disputes. This has been particularly important in Canada because of the difficulty of amending the constitution. As Canadian society has changed, the courts have played a vital role in deciding what is constitutionally acceptable.

Another key convention of Canada’s constitution is responsible government. The wording of the Constitution Act of 1867 seems to give the British monarch’s representative in Canada—the governor-general—near-dictatorial powers. In practice the governor-general’s role is almost purely symbolic. A convention has developed that grants most executive power to the prime minister and members of the cabinet. Although the prime minister and the cabinet are only briefly mentioned in the constitution, as members of parliament they are ultimately accountable to the voters for leadership of the country.

Unwritten conventions are more difficult to enforce than the written part of the constitution. Conventions are not enforceable by the courts but are dependent upon the political will of the Canadian citizenry. For example, during the 1970s the federal and provincial governments were unable to agree upon a process to patriate the constitution, which would allow Canada to amend its constitution without intervention by the United Kingdom. In 1980 the federal government decided to ask the British Parliament to amend the constitution without the approval of the provinces. The provinces appealed to the Supreme Court of Canada, and claimed the federal government’s action was unconstitutional. The Court ruled that although there was nothing in the written constitution that prohibited the federal government from acting unilaterally, there was an unwritten constitutional convention that required amendments to the constitution to be supported by a significant number of provinces. As a result of this decision, the federal government resumed negotiations with the provinces. Eventually, the Canadian federal government and the provinces (except Québec) agreed upon a process to patriate the constitution.

IV

INTERPRETATION AND ENFORCEMENT

The constitution is the supreme law of Canada and almost any law that contradicts or is inconsistent with the constitution is unenforceable. If the federal government has concerns about the constitutionality of a proposed law before it is passed, it can submit a reference case to the Supreme Court of Canada and ask the Court to determine if the proposed law is constitutionally valid. The Supreme Court will issue an advisory opinion. Similarly, a province can submit reference cases to its provincial court of appeal, which are subsequently referred to the Supreme Court. Individual citizens who believe that they have been harmed by an unconstitutional law can also ask the courts to decide if a law is valid or not. The courts serve as the primary interpreters and enforcers of the written constitution, and they have the power to invalidate unconstitutional laws. This is called judicial review.

Judicial review has been controversial in Canada. It is a departure from the British tradition of parliamentary sovereignty, which holds that the parliament should decide whether a law is legitimate or not. Judicial review also contradicts other parts of the democratic system. Canadian federal judges are not elected but appointed, and are almost impossible to remove from office.

Judicial review significantly affects how the Canadian constitution is implemented. For example, courts have been important in determining the division of powers between Canada’s central government and its provinces. The Constitution Act of 1867 anticipated that the federal government would exercise the most power. Between 1867 and 1949, the final court for all decisions from Canada was not the Supreme Court of Canada, but a special committee of the English House of Lords called the Judicial Committee of the Privy Council, which convened in London, England. For more than 80 years, the council’s rulings limited the powers of the federal government, while expanding powers granted to the provinces. As a consequence, Canada has become extremely decentralized.

Since 1982 the Supreme Court has exercised its power of judicial review in the context of the Canadian Charter of Rights and Freedoms. Many laws and governmental actions have been challenged on the grounds that they treat people unequally or infringe on liberties guaranteed by the charter. For example, laws prohibiting abortion and cigarette advertising have been struck down, while discrimination claims advanced by women, gays and lesbians, and persons with disabilities have been validated by the Supreme Court.

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