Kara Sears
Canada's constitution is composed of several statutes and includes written and unwritten components. The Constitution Act, 1867 brought Canada into being with a constitution similar in principle to that of the United Kingdom. The Constitution Act, 1982 contains the Canadian Charter of Rights and Freedoms and the procedure for amending the Constitution. The Constitution is the supreme law of Canada, and all other laws must be consistent with the rules set out in it. If they are not, they may not be valid. The current approach to determining the constitutionality of legislation is founded in Canadian Western Bank v Alberta, where the Supreme Court of Canada outlined several principles to be examined.
| Characteristics | Values |
|---|---|
| The Constitution is the supreme law | All other laws must be consistent with the rules set out in the Constitution. |
| The Constitution includes written and unwritten components | The written components include the Constitution Act, 1867, and the Canadian Charter of Rights and Freedoms. The unwritten components include traditions and conventions. |
| The Constitution sets out the basic principles of democratic government | It defines the powers of the three branches of government: executive, legislative, and judicial. |
| The Constitution is amended through a general amending formula | This formula requires the agreement of the federal houses and two-thirds of the provinces comprising 50% of the population. |
| The Constitution protects the rights of Indigenous peoples | Section 35 of the Constitution Act recognizes and affirms Aboriginal rights, which are related to the historical occupancy and use of land. |
| The Constitution provides for federal and provincial legislatures | The federal Parliament can make laws for all of Canada, while provincial legislatures can only make laws within their province's borders. |
| The judiciary interprets and applies the law and the Constitution | The courts have the power to strike down laws that violate the Constitution or the Canadian Charter of Rights and Freedoms. |
| The executive branch is led by the Prime Minister and cabinet | They are accountable to Parliament, and the system requires majority support in the House of Commons. |
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What You'll Learn
The Canadian Constitution is the supreme law
The Constitution outlines the system of government in Canada, including the powers and functions of the legislative, executive, and judicial branches. It also sets out the basic principles of democratic government, such as federalism, democracy, constitutionalism, and the rule of law, as well as the protection of minorities and the recognition of Aboriginal and treaty rights.
The Constitution Act, 1867, brought Canada into being with a constitution similar in principle to that of the United Kingdom, recognising Canada as a constitutional monarchy. The Constitution Act, 1982, contains the Canadian Charter of Rights and Freedoms, which outlines the rights and freedoms of all people in Canada, including citizens, permanent residents, and newcomers. These rights and freedoms are not absolute and can be limited to protect other rights or important national values, such as freedom of expression being limited by laws against hate propaganda.
The judiciary plays a crucial role in interpreting and applying the law and the Constitution, giving it life and ensuring its endurance. Courts have the power to strike down laws that violate Charter rights, and they must favour the evolution of the Constitution. The Supreme Court of Canada has outlined principles for determining the constitutionality of legislation, including examining the validity of provincial and federal laws and resolving any conflicts between them.
In summary, the Canadian Constitution is the supreme law, shaping the country's system of government and guaranteeing the rights and freedoms of its people. It is a living document interpreted and applied by the judiciary, with the potential for amendment through a defined process.
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Federal and provincial laws must conform
Canada's constitution is composed of several statutes, including the Constitution Act, 1867, and the Constitution Act, 1982. It is the supreme law of Canada, and all laws, both provincial and federal, must conform to it. Any laws inconsistent with the Constitution are null and void.
The Constitution outlines the basic principles of democratic government in Canada, defining the powers of the three branches of government: legislative, executive, and judicial. The legislative branch, or Parliament, is made up of the King (represented by the Governor General), the Senate, and the House of Commons. The executive branch, led by the Prime Minister and cabinet, implements laws and policies, with cabinet ministers being accountable to Parliament. The judiciary is responsible for interpreting and applying the law and the Constitution and for rendering impartial judgments.
The Parliament of Canada and the provincial and territorial legislatures have the authority to make laws. While Parliament can make laws for all of Canada, it can only do so regarding matters assigned to it by the Constitution. On the other hand, a provincial or territorial legislature can only make laws about matters within its province's borders.
There are also local or municipal governments created under provincial laws that can make bylaws regulating various local matters, such as zoning, smoking, and business regulations.
To determine if a law is constitutional, the Supreme Court of Canada has outlined several principles in the case Canadian Western Bank v Alberta. These include examining the pith and substance of both the provincial and federal laws to ensure they are validly enacted and determining the nature of any overlap between them. The Court also considers the applicability of the provincial law to the federal matter in question and whether there is a conflict between the two statutes.
In addition, public interest groups may gain standing in court if they satisfy the requirements of the Borowski test, which include demonstrating that the law raises a serious constitutional issue and that the group has a genuine interest in the matter.
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Courts interpret the Constitution
The Constitution of Canada is the supreme law of the country, and all other laws must be consistent with the rules set out in it. The judiciary is responsible for interpreting and applying the law and the Constitution, as well as giving impartial judgments. Courts give life to the Constitution and play a major role in interpreting the Canadian Charter of Rights and Freedoms. They have the power to strike down laws that violate Charter rights.
The interpretation of the Constitution is as important as the Constitution itself. Courts must favour the evolution of the Constitution, as it cannot be amended as frequently as a statute. In a federation, a supreme court is crucial in the distribution of legislative powers.
The Supreme Court of Canada has outlined several principles to determine the constitutionality of legislation. These include examining the pith and substance of provincial and federal laws to ensure they are validly enacted and to identify any overlap between them. The applicability of the provincial law to a federal matter must be addressed through the doctrine of interjurisdictional immunity.
In Quebec (AG) v Canadian Owners and Pilots Assn ("COPA"), Chief Justice McLachlin proposed a two-step test to determine if interjurisdictional immunity is applicable:
- Does the provincial law trench on the protected "core" of a federal competence?
- Is the impact of the provincial law on the exercise of the protected federal power significant enough to invoke the doctrine of interjurisdictional immunity?
Public interest groups may also gain standing in court if they satisfy the Borowski test, which requires demonstrating a serious constitutional issue, a genuine interest in the matter, and the absence of other reasonable ways to bring the issue before the Court.
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The Charter of Rights and Freedoms
Canada's Constitution is the supreme law of the country, and all other laws must be consistent with the rules set out in it. The Constitution comprises core written documents and provisions that are constitutionally entrenched, take precedence over all other laws, and place substantive limits on government action. These include the Constitution Act, 1867 (formerly the British North America Act, 1867), and the Canadian Charter of Rights and Freedoms.
The Charter gives Canadian citizens certain rights, such as the right to vote (Section 3) and the right "to enter, remain in, and leave Canada" (Section 6). Persons under arrest have the right to ask a judge to decide whether their arrest was legal and, if it was not, to order their release. Any person charged with an offence has the right to be informed without unreasonable delay of the specific offence, to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, and to not be denied reasonable bail without just cause.
The courts play a major role in interpreting the Charter, and Section 52(1) gives them the power to strike down laws that violate Charter rights. If only part of a law violates the Constitution, only that part will be ruled invalid. The courts have a broad scope of competence and can review all matters of law. They can also hear any constitutional issues as long as there is a sufficient legal component.
The Canadian Parliament consists of the King (usually represented by the Governor General), the Senate, and the House of Commons. Bills are debated and passed by the Senate and the House of Commons, and the Governor General must give royal assent for them to become laws. While the federal Parliament can make laws for all of Canada, it can only do so regarding matters that the Constitution assigns to it. On the other hand, a provincial or territorial legislature can only make laws about matters within its province's borders.
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Provincial laws and bylaws
Canada's Constitution includes the Constitution Act, 1867, and the Constitution Act, 1982, which is the supreme law of the country. The Constitution Act, 1867, outlines the distribution of legislative powers between the Parliament of Canada and the provincial legislatures. Sections 91 to 95 of the Constitution Act, 1867, set out the areas of jurisdiction exclusive to Parliament, which include matters of national interest and those that affect the entire country, such as military and naval service, currency, bankruptcy, divorce, and criminal law. It also grants Parliament the power to make laws for the "Peace, Order, and good Government of Canada" in relation to matters not assigned to the provincial legislatures.
The provincial legislatures, on the other hand, have exclusive powers over matters of a local nature, as outlined in Sections 92, 92(A), and 93 of the Constitution Act, 1867. These include the power to legislate on property and civil rights, education, and matters within their respective territories. The Constitution Act, 1982, includes the Canadian Charter of Rights and Freedoms, which protects the rights of individuals and collectives and has fundamentally changed Canadian constitutional law.
The Parliament of Canada and the provincial legislatures both have the authority to make laws, but these laws must conform to the Constitution. The courts play a crucial role in interpreting and applying the Constitution and determining the constitutionality of legislation. When a question arises regarding the constitutional powers of a law enacted by Parliament or a provincial legislature, the courts provide an authoritative answer through judicial review. This process has clarified, defined, limited, and expanded the scope of federal and provincial legislative powers over time.
Provincial laws are enacted by provincial legislatures, which have the authority to make laws within their respective provinces. These laws must comply with the Constitution and cannot infringe on areas of exclusive federal jurisdiction. The provinces have exclusive powers in certain areas, as outlined in the Constitution Act, 1867, and its amendments. For example, the Constitution Act, 1930, granted specific provinces jurisdiction over crown lands, public lands, and natural resources. Additionally, the provincial education power under Section 93 of the Constitution Act, 1867, allows provinces to fund Roman Catholic separate schools and public schools without interference from the Charter.
Bylaws are created at the municipal level, which is a level of government established under provincial laws. Municipal governments regulate various local matters through bylaws, including zoning, smoking, pesticide use, parking, business regulations, and construction permits. These bylaws are specific to each municipality and reflect the unique needs and characteristics of their communities.
In summary, provincial laws and bylaws in Canada are created within the framework established by the Constitution, which includes the Constitution Act, 1867, and its amendments, as well as the Constitution Act, 1982, and the Canadian Charter of Rights and Freedoms. The provincial legislatures have exclusive powers in certain areas outlined in the Constitution Acts, and their laws must be interpreted and applied in accordance with constitutional principles by the courts. Bylaws, on the other hand, are created by municipal governments and focus on regulating local matters within their communities.
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Frequently asked questions
The Constitution of Canada is the supreme law in Canada. It outlines Canada's system of government, and the civil and human rights of citizens and non-citizens in Canada. It includes written and unwritten components.
The Constitution is the supreme law in Canada, and all other laws must conform to the rules set out in it. If they don't, they may not be valid. The Constitution Act, 1982, allows each province to amend its own constitution. The courts have the power to rule that a particular law is not valid if it violates the Charter.
The judiciary is responsible for the interpretation and application of the law and the Constitution. Courts give life to a Constitution and play a major role in interpreting the Canadian Charter of Rights and Freedoms. The interpretation of the Constitution is as important as the Constitution itself.
Canada is a federal state, and responsibility for lawmaking is shared among one federal, ten provincial, and three territorial governments. The three branches of the Canadian government are the legislative, executive, and judicial branches. The legislative branch includes the King (represented by the Governor General), the Senate, and the House of Commons. The executive branch is led by the Prime Minister and cabinet, and the judicial branch includes the Supreme Court of Canada.
