The Canadian Constitution
What is a constitution?
A constitution is the set of rules that define the political principles, the institutions, the powers and the responsibilities of a State. A constitution can also comprise a charter of basic human rights.
In most States, the constitution is written, which is to say that these rules are codified, either in a single text (like the constitution of the United States of America) or in a number of constitutional enactments (like the Canadian constitution). The United Kingdom possesses a "customary" constitution and is one of those rare States whose constitution is a set of non-codified rules, based on statutes, case law and conventions.
The constitution is considered the supreme law of a state's legal system. It is more fundamental than any particular law, and contains the principles with which all legislation must accord.
The Canadian Constitution
The Canadian constitution is generally understood to comprise:
- the Constitution Act, 1867 - long known as the British North America Act or BNAA - provides for, among other things:
- "the Province* of Canada, Nova Scotia and New Brunswick to be federally united into one Dominion under the name of Canada", originally made up of four provinces (Introduction, s. 3, 4);
- representation of the provinces and territories in the Senate (s. 21 et al) and the House of Commons (s. 37);
- distribution of powers between the Parliament of Canada and the provincial legislatures (sections 91, 92, 93, inter alia);
- applicable civil and criminal law (s.129);
- use of French and English (s.133);
- admission of Britain's other North American possessions (s.146);
- the Constitution Act, 1982, made up of 7 parts, including:
- Part I, the Canadian Charter of Rights and Freedoms;
- Part II, which sets out the rights of Aboriginal peoples;
- Part III, which deals with equalization;
- Part V, which sets out the procedure for amending the Constitution.
But the Canadian constitution is more than just these two statutes. Section 52 of the Constitution Act, 1982 stipulates that the 30 or so legislative texts and orders referred to in its schedule are also part of Canada's constitution. These texts are amendments brought to the Constitution Act, 1867, prior to the 1982 patriation, by the Parliament of the United Kingdom or by the Parliament of Canada and legislatures of the provinces when provisions allowed for such amendments. They include provisions on the following:
- provinces and territories admitted or constituted after 1867;
- amendments to the distribution of powers between the Parliament of Canada and the provincial legislatures.
The Canadian Constitution evolves constantly. Since 1982, it has been amended on many occasions and this, following the amendment procedure set in the Constitution Act, 1982. These amendments are also part of the Constitution.
The Canadian constitution also includes various customary rules that are not found in any legislative text: this is the case, for instance, with regards to the duties of the Prime Minister of Canada.
- Constitution Amendment Proclamation, 1983 - This was a multilateral amendment under the 7/50 formula, that concerned Aboriginal rights.
- Constitution Amendment, 1987 (Newfoundland Act) - Entrenched the denominational school rights of the Pentecostal Assemblies of Newfoundland.
- Constitution Amendment, 1993 (New Brunswick) - Established the equality of the English-speaking and French-speaking communities in New Brunswick.
- Constitution Amendment, 1994 (Prince Edward Island) - Relieved Canada of the obligation to provide ferry service to Prince Edward Island upon completion of the Confederation Bridge.
- Constitution Amendment, 1997 (Quebec) - Permitted Quebec school boards to be restructured on linguistic lines, rather than on a denominational basis.
- Constitution Amendment Proclamation, 1997 (Newfoundland Act) - Allowed the Province to create a secular school system.
- Constitution Amendment Proclamation, 1998 (Newfoundland) - Allowed the province to abolish the denominational school system.
- Constitution Amendment, 2001 (Newfoundland and Labrador) - Amended Newfoundland's Terms of Union to change the Province's name to "Newfoundland and Labrador".
*Note: The word province was understood at the time to mean a colony of the British Empire. Since 1867, in Canada, the term refers to a federated entity.
Procedure for amending the Constitution
Part V (sections 38 to 49) of the Constitution Act, 1982 sets out how the Constitution of Canada can be amended.
- Through the general amending procedure, generally referred to as the 7/50 formula (section 38.(1)). Some amendments require resolutions of the Senate, the House of Commons, and the legislative assemblies of at least two thirds of the provinces (7) that have at least 50% of the population of Canada as a whole. These include amendments in relation to the powers of the Senate and the method of selecting Senators, and the extension of existing provinces into the territories (section 42).
- By unanimous consent (section 41). Other amendments require resolutions of the Senate, the House of Commons, and the legislative assembly of each province. These include amendments in relation to the Governor General and to the composition of the Supreme Court of Canada.
- Amendment of provisions relating to some but not all provinces (section 43). Others require resolutions of the Senate, the House of Commons and the legislative assemblies of the provinces to which the amendment applies. For example:
- the 1993 amendment to the Constitution Act, 1982 which added section 16.1 entrenching official bilingualism in New Brunswick;
- the 1993 amendment to the Schedule to the Prince Edward Island Terms of Union allowing the construction of a bridge which would relieve the Government of Canada from its constitutional obligation to provide ferry services to/from the continent;
- the 1997 amendment to the Constitution Act, 1867, which added section 93A allowing Quebec to replace its denominational education system with a linguistic system;
- the 2001 amendment to the Schedule to the Newfoundland Act, 1949, which changed the name “Province of Newfoundland” to “Province of Newfoundland and Labrador”.
- Amendments by Parliament (section 44). Subject to sections 41 and 42, the Parliament of Canada may exclusively make laws amending the Constitution in relation to the Senate and the House of Commons. For example:
- the 1999 amendment to the Constitution Act, 1867, to ensure the Territory of Nunavut representation in the Senate (section 3) and in the House of Commons (section 52.1).
- Amendments by Provincial Legislatures (section 45). Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.
Act respecting constitutional amendments (regional veto)
The 1996 act respecting Constitutional amendments provides that proposals for certain amendments to the Constitution must be consented to by a majority of the provinces before they can be tabled in Parliament.
The majority of the provinces must include:
- British Columbia
- At least two of the Atlantic provinces comprising at least 50% of the region's population
- At least two of the Prairie provinces comprising at least 50% of the region's population
Among others, this act applies to proposed constitutional amendments pertaining to:
- Changes to parliamentary institutions;
- The creation of new provinces;
- The division of powers between Parliament and the provincial legislative assemblies
The act does not apply to amendments which the Constitution provides that the provinces can veto or express their dissent to 1. These include so-called bilateral amendments, i.e., that affect only one province.
The act respecting Constitutional amendments affords the provinces greater protection within the Canadian federation by imposing an additional obligation on Parliament.
- The Constitution Act, 1982 which provides for a general amending procedure 2 (known as the 7/50 formula), under which certain constitutional amendments require the assent of at least two thirds (2/3 or 7) of the provinces that have at least 50% of the population of Canada as a whole; however, it does not specify which provinces must necessarily be included in the two thirds (2/3 or 7) required.
- The act respecting Constitutional amendments provides that Parliament should obtain the consent of Quebec, Ontario, British Columbia, two of the Atlantic provinces comprising at least 50% of the region's population, and two of the Prairie provinces comprising at least 50% of the region's population, before proposing a constitutional amendment in accordance with the so-called 7/50 formula.
The act respecting Constitutional amendments is part of the Consolidated Statutes of Canada and is binding on the government of the day and its successors. It is not a constitutional act. It could, however, be constitutionalized with the consent of all the provinces.
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