The Constitution of Canada

All laws, rules, and practices that structure the way the Canadian political system runs add up to the "constitution" of Canada. The Constitution includes a great many statutes, orders-in-council, and judicial decisions that interpret these documents. In addition, there are informal rules, called constitutional conventions, that regulate how our political actors behave. Finally, there are some traditions and customs that may not be obligatory but are followed.  When most people refer to the Constitution, they may be thinking of a subset of the rules that makes up the formal "Constitution of Canada." Section 52(2) of the Constitution Act, 1982 outlines what documents are part of the formal Constitution. This is a special collection of rules, declared to be the "supreme law of Canada," that takes precedence over any other law. The Constitution can only be changed according to the amending formulas set out in Part V of the Constitution Act, 1982 (see below). More than two dozen documents were included in the 1982 description of the Constitution, and since then six new constitutional amendments have been added to the list. 

 

CONSTITUTIONAL DOCUMENTS

  For a comprehensive list of documents that relate to Canada's Constitution—and the full text of those documents—you should visit William F. Maton's collection of constitutional documents and proposals. There you will find the "Constitution of Canada" documents, as well as other important historical documents and constitutional proposals. The two most important constitutional documents are: 

    The Constitution Act, 1867. This statute of the British Parliament created Canada in 1867 and set out the division of powers between the federal and provincial governments. Its original name was the British North America Act, 1867, but this was changed in 1982. 
    The Constitution Act, 1982. This act created for the first time a set of amending procedures for the Constitution to be amended entirely in Canada. Until 1982, many changes to the then British North America Acts had to be carried out by the British Parliament. This act also includes the Charter of Rights & Freedoms. The Constitution Act, 1982, was actually created as a part of the Canada Act, 1982. The Canada Act ended any further British legislative authority over Canada. 

Other documents that are of particular interest in Canada's constitutional development are:

Constitution Act, 1871

The Numbered Indian Treaties (1871-1922)

Prince Edward Island Terms of Union (1873)

The Yukon Territory Act, 1898

Saskatchewan Act (1905)

Alberta Act (1905)

Statute of Westminster, 1931

1947 Letters Patent for a Canadian Governor General

Newfoundland Act (1949)

British North America (No. 2) Act, 1949

1960 Canadian Bill of Rights The federal government has a useful set of documents relating to the Constitution and its renewal. A detailed history of Canada's constitutional evolution is also provided here. 

Another interesting site, run by the National Library of Canada, has a collection of discussions about the pre-Confederation context and development of Canada's Constitution. 

CONSTITUTIONAL AMENDMENTS

There are five amending processes laid out in Part V of the Constitution Act, 1982. Since these amending formulas came into effect in 1982, there have been nine formal amendments to the Constitution of Canada: 

Regional Vetoes

The federal government enacted legislation in 1996 that effectively places a new amending process on top of the "7 & 50" formula of s.38 of the Constitution Act, 1982, with a statutory requirement that the federal government can only introduce constitutional amendments that have broad regional support. In effect, this has created a system of regional vetoes to amendments under s.38. You can read the details in the Constitutional Amendments Act. 

There are serious issues with the desirability and constitutionality of the regional veto formula. For a flavour of this debate, see the evidence of witnesses who appeared before the Special Senate Committee that examined the Bill (C-110).

Clarity Act

Following the Supreme Court of Canada's ruling on Quebec Secession, the federal government decided to place conditions upon its participation in separation negotiations following any referendum on Quebec independence. These limitations were put into law as the Clarity Act, enacted in 2000.

 

Proposed Amendments

A number of proposals for major changes to the Constitution have been made over the years, without success. Several comprehensive packages have come close, having initial agreement among the first ministers, but failed to get enough sustained support to be made into law. 

The first ministers have agreed on two other sets of proposed amendments, but they failed to pass: 

    The Meech Lake Accord was originally agreed to by all ten premiers and the Prime Minister of Canada in 1987, and again in 1990. But this measure failed to gain approval of all the legislatures. 
    The Charlottetown Accord, negotiated in 1992 with unanimous agreement among the first ministers, also failed to become law. It is available in two versions on-line: the plain-English Consensus Report and the legal text. 
The Charlottetown Accord was defeated in two referendums held simultaneously: one was organized by the Quebec government in Quebec, while the federal government organized the referendum in the rest of Canada.

The questions and results of the 1980 and 1995 Quebec Sovereignty Referendum are available on-line. 

With the precedent of the 1992 referendum, many believe that a future package of constitutional amendments could not be passed without popular approval through another referendum. Indeed, both Alberta and British Columbia have legislation that requires the holding of a referendum in those provinces on constitutional amendments. In the case of Alberta, the referendum must be held before a vote is held in the legislature on the resolution to amend the Constitution. The B.C. government has to put any proposed amendment to a referendum even before introducing a motion in the legislature.  A number of citizens' groups have emerged since the Meech Lake negotiations to demand that future constitutional renewal not be left to the first ministers alone. They suggest that a constituent assembly (sometimes called a citizens' forum or constitutional convention) be created with representation from various groups in Canadian society. For information on this idea, connect to: 

RELATED LINKS

  You can find more information related to constitutional issues in other sections of Nelson's Canadian Politics on the Web: