Anaya Nolan
Canada's constitution is the supreme law of the country, outlining the system of government and the civil and human rights of citizens and non-citizens. It comprises written and unwritten components, including codified acts, treaties with Indigenous Peoples, and uncodified traditions and conventions. The constitution sets out the fundamental laws and principles that define the nature, functions, and limits of Canada's federal and provincial governments. It also establishes the powers and authorities of the Crown, the Executive, and the Legislative branches, including the Governor General, the Senate, and the House of Commons. While Canada's constitution has evolved over time, with the Constitution Act of 1982 serving as a key component, the country's laws are rooted in traditions dating back to the thirteenth century, such as England's Magna Carta.
| Characteristics | Values |
|---|---|
| Nature of the constitution | Amalgamation of various codified acts, treaties, uncodified traditions, conventions, written and unwritten components |
| Basis of the constitution | The British North America Act, 1867, which was later renamed the Constitution Act, 1867 |
| Constitutional monarchy | The King, who is sovereign in Canada, reigns but does not rule |
| Executive power | Wielded by the Prime Minister and the Cabinet |
| Legislative power | Shared among federal, provincial, and territorial governments |
| Judicial power | Separate from the executive and legislative branches |
| Rights protected | Civil rights and liberties of every citizen, including freedom of expression, religion, and mobility |
| Indigenous rights | Section 35 of the Constitution Act, 1982, recognizes and affirms the rights of Indigenous Peoples |
| Human rights | Protected in the written Constitution through the Canadian Charter of Rights and Freedoms |
| Language rights | Section 133 of the Constitution Act, 1867, guarantees the right to use English or French in Quebec's legislature and courts |
| Amending the constitution | Part V of the Constitution Act, 1982, provides for five different amending formulas |
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What You'll Learn
Canada's constitution is the supreme law
The Constitution comprises the Constitution Act of 1867 (formerly the British North America Act, 1867) and the Constitution Act of 1982, which includes the Canadian Charter of Rights and Freedoms. The Charter outlines the rights and freedoms of Canadians, many of which were previously protected by laws such as the Canadian Bill of Rights enacted in 1960.
Section 52 of the Constitution Act of 1982 states that "the Constitution of Canada is the supreme law of Canada" and that any inconsistent law has no force or effect. This means that all other laws must be consistent with the rules set out in the Constitution. The Constitution Act of 1982 also addresses the rights of Aboriginal peoples in Canada, stating that their existing rights are recognised and affirmed.
The Constitution provides for the federal, provincial, and territorial governments in Canada, outlining their respective powers and jurisdictions to make laws. While the Parliament of Canada can make laws for the entire country, it is limited to matters assigned to it by the Constitution. On the other hand, provincial and territorial legislatures can only make laws about matters within their respective province's or territory's borders.
The Constitution also includes provisions relating to the judicial branch of government, composed of federally appointed judges. It establishes a general court of appeal for Canada and authorises the creation of additional courts to better administer the country's laws.
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It outlines the civil and human rights of citizens and non-citizens
The Canadian Constitution outlines the civil and human rights of citizens and non-citizens. It comprises core written documents and provisions that are constitutionally entrenched, taking precedence over all other laws and placing substantive limits on government actions.
The Constitution Act, 1867, formerly the British North America Act, 1867, recognises Canada as a constitutional monarchy. It provides for a constitution "similar in principle" to the largely unwritten constitution of the United Kingdom. The Act also includes provisions for the rights of citizens and non-citizens. For example, Section 133 gives the people of Quebec the right to use either English or French in the Quebec legislature and before any of the courts of that province. It also provides the right to have provincial laws printed and published in both languages. The Manitoba Act, 1870 (confirmed in the Constitution Act, 1871) confirms the same rights for the people of Manitoba.
The Canadian Charter of Rights and Freedoms, established in 1982, is part of the Constitution and guarantees the civil rights and liberties of every citizen in Canada, such as freedom of expression, religion, and mobility. It also includes the right to life, liberty, and security of the person. Other rights related to participation in elections, legal processes, equality, language usage, and minority-language education are also outlined in the Charter.
The Charter also addresses the rights of Aboriginal Peoples in Canada. Section 25 makes it clear that other rights in the Charter must not interfere with the rights of Aboriginal Peoples. Section 35 of the Constitution Act, 1982, Part II - Rights of the Aboriginal Peoples of Canada, states that the existing Aboriginal and treaty rights of Indigenous Peoples are recognised and affirmed.
Canada's Constitution also includes unwritten components, such as the fundamental principles of federalism, democracy, constitutionalism, and the rule of law, as well as respect for minorities.
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It includes written and unwritten components
The Constitution of Canada includes both written and unwritten components. It is the supreme law of Canada and outlines the country's system of government and the civil and human rights of citizens and non-citizens.
The written components of Canada's constitution are primarily the Constitution Act, 1867 (formerly the British North America Act, 1867), the Constitution Act, 1982, and the Canadian Charter of Rights and Freedoms. The written aspects of the constitution establish the federal branches of state, divide powers between the federal and provincial governments, create individual rights, and affirm the existing Aboriginal and treaty rights of Indigenous peoples. The written constitution also contains provisions that protect the judicial independence of superior courts.
The unwritten components of the Canadian Constitution include constitutional conventions, prerogative powers, common law rights, Charter values, and constitutional principles and architecture. These unwritten principles have legal force and can create legal obligations and impose limitations on government action. For example, unwritten constitutional principles require provincial and federal governments to negotiate the terms of Quebec's secession if a "clear majority" of Quebecers vote in favour.
Canada's constitution has roots dating back to the thirteenth century, including England's Magna Carta and the first English Parliament of 1275. The first semblance of a constitution for Canada specifically was the Royal Proclamation of 1763, which established an appointed colonial government for the Province of Quebec. The British North America Act, 1867, codified many constitutional rules for Canada, but major changes to the Constitution could only be made by the United Kingdom Parliament until 1982, when the Charter was enacted as part of Canada's Constitution, along with procedures allowing for amendments to be made in Canada.
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It governs the roles of the Crown, Executive and Legislative branches
Canada is a constitutional monarchy, with the Crown, or the monarch, as the Head of State. The Crown is the collective of executive powers exercised by or on behalf of the sovereign, and is a fundamental part of Canada's system of government. The Crown is represented by the governor general, who is appointed by the monarch on the recommendation of the prime minister. The governor general acts on the advice of the prime minister and Cabinet. The Crown's powers stem from rights and privileges known as prerogative powers.
In 1947, all of the sovereign’s powers and authorities in Canada were delegated federally to the governor general and provincially to lieutenant governors. The role of the governor general includes representing the monarch, and passing legislation into law through Royal Assent.
The executive branch of the Canadian Parliament is made up of the Crown, the prime minister, and the Cabinet. This branch is responsible for delivering programs and services to the population within the framework of laws, expenditures, and tax measures approved by the Legislature. The executive branch directs and oversees the day-to-day operations of the government.
The legislative branch of the Canadian Parliament is made up of the Senate and the House of Commons. This branch is responsible for debating and voting on new laws, which must be adopted in identical form by both houses before they can receive Royal Assent and pass into law. The House of Commons has 338 members, or Members of Parliament (MPs), who are the elected representatives of federal electoral districts.
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It recognises Aboriginal and treaty rights of Indigenous Peoples
The Canadian Constitution, which includes the Constitution Act, 1867, and the Constitution Act, 1982, is the supreme law of Canada. It outlines the basic principles of democratic government in Canada and recognises Aboriginal and treaty rights of Indigenous Peoples.
Section 35 of the Constitution Act, 1982, Part II - Rights of the Aboriginal Peoples of Canada, states that the existing Aboriginal and treaty rights of the Indigenous Peoples of Canada are recognised and affirmed. The Supreme Court of Canada has ruled that Section 35 means that Indigenous rights under treaties or other laws are now protected under the Constitution Act, 1982.
Section 35 contains a full box of rights and holds the promise that Indigenous nations will become partners in Confederation based on a fair and just reconciliation between Indigenous peoples and the Crown. The Government recognises that Indigenous self-government and laws are critical to Canada's future and that Indigenous perspectives and rights must be incorporated into all aspects of this relationship.
The honour of the Crown gives rise to different legal duties in different circumstances, including fiduciary obligations and diligence. The overarching aim is to ensure that Indigenous peoples are treated with respect and as full partners in Confederation. This principle affirms the inherent right of self-government as an existing Aboriginal right within Section 35. Recognition of the inherent jurisdiction and legal orders of Indigenous nations is, therefore, the starting point of discussions aimed at interactions between federal, provincial, territorial, and Indigenous jurisdictions and laws.
The Government of Canada has a duty to consult and, where appropriate, accommodate Indigenous groups when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights. Treaties define specific rights, benefits, and obligations for the signatories that vary from treaty to treaty.
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