Kara Sears
Canada's constitutional law is an amalgamation of codified acts and unwritten but legally binding rules of constitutional practice known as conventions. The primary sources of Canadian constitutional law are legislative rules in the form of documents and statutes created over time, including the Constitution Acts of 1867 and 1982, which outline the basic principles of democratic government in Canada. The Constitution Act, 1982, Part I is the Canadian Charter of Rights and Freedoms, which guarantees the rights and freedoms of Canadians. The Charter has been the source of change and progress, bringing Canadian laws into line with societal values. The Constitution Act, 1867, authorized Parliament to establish a general court of appeal for Canada and other courts to better administer the laws of the country. Canada's constitutional law reflects a federal system where jurisdiction is divided between the federal government and various states, with the federal and provincial governments holding sovereignty within legislative limits outlined by the Constitution.
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What You'll Learn
The Canadian Constitution
The Constitution Act of 1982, which includes the Canadian Charter of Rights and Freedoms, is one of two core constitutional texts, the other being the Constitution Act of 1867 (originally enacted as the British North America Act). The 1982 Act provides for the Constitution of Canada to include the Canada Act of 1982 and the Constitution Act of 1982, as well as legislative texts and decrees included in Appendix I of the latter act, and modifications to these legislative texts.
The Constitution Act of 1867 authorized Parliament to establish a general court of appeal for Canada, as well as any additional courts to better administer the laws of Canada. Under this authority, the Federal Courts, the Tax Court, and the Supreme Court of Canada were established. The federal Parliament deals mainly with issues concerning Canada as a whole, such as trade between provinces, national defence, criminal law, money, patents, and the postal service. It is also responsible for the three territories: Yukon, the Northwest Territories, and Nunavut.
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The King's role
Constitutional law in Canada is a complex and multifaceted area of law that forms the foundation of the country's legal system. At the heart of this legal framework lies the role of the King, who serves as the symbolic head of state and plays a crucial part in upholding the nation's constitutional traditions and principles.
One of the key aspects of the King's role is representing the unity and continuity of the Canadian state. As a symbolic figurehead, the King embodies the nation's historical traditions and serves as a reminder of Canada's constitutional heritage. This role is particularly important in a country like Canada, which values a unifying figure to transcend regional and cultural differences. The King acts as a symbol of national identity and a focal point for national pride.
Additionally, the King plays a crucial role in maintaining a balance of powers. While primarily ceremonial, they retain reserve powers that can be exercised in exceptional circumstances. These powers include dismissing the government, withholding royal assent, and dissolving Parliament, thus providing a check on the elected government and ensuring adherence to responsible government principles.
The King also has a hand in appointing key officials and in the functioning of Parliament. They appoint the Governor-General, their representative in Canada, as well as provincial lieutenant governors. The King also performs ceremonial duties during the opening of Parliament and the enactment of legislation, emphasising the importance of the legislative process.
Lastly, the King promotes and embodies the values enshrined in Canada's constitution, including democracy and respect for diversity. Their role, while ceremonial, provides stability and a sense of shared identity for Canadians, reinforcing the country's constitutional framework.
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The Prime Minister's powers
Canada is a constitutional monarchy, with the King as the sovereign. However, the King does not rule, and executive power is effectively wielded by the Prime Minister and the Cabinet. The Prime Minister is the most politically powerful member of the Canadian government and is the head of government. They are responsible for advising the Crown on how to exercise royal prerogative and executive powers, which are governed by the written constitution and constitutional conventions. The Prime Minister's advice is ordinarily binding, and they effectively carry out the duties ascribed to the sovereign or governor general.
The Prime Minister is supported by the Office of the Prime Minister (PMO) and controls the appointments of key figures in Canada's governance, including the governor general, the Cabinet, justices of the Supreme Court, senators, and ambassadors, among others. The Prime Minister also plays a prominent role in the legislative process, with most bills put before Parliament originating in the Cabinet.
While the Prime Minister wields significant power, there are checks in place. The House of Commons can revoke its confidence in the Prime Minister, and Cabinet or caucus revolts can bring down a serving premier. The Reform Act of 2014 further codifies the process by which a caucus can trigger a leadership review and choose an interim leader, making the Prime Minister more accountable to the MPs in their party.
The Senate may also delay or impede legislation put forward by the Cabinet, and the jurisdiction of the federal government is limited to areas prescribed by the Constitution. The powers of the Prime Minister and government officials are not unlimited, and they are responsible for any act done without legal justification, reflecting the principle of the rule of law.
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The Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter in Canada, is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and guarantees the civil rights of everyone in Canada. It was preceded by the Canadian Bill of Rights, enacted in 1960, which was a federal statute rather than a constitutional document.
The Charter was proclaimed in force by Queen Elizabeth II of Canada on April 17, 1982, as part of the Constitution Act, 1982. It was the result of a much-debated issue regarding the inclusion of a charter of rights in the patriation process. The Charter was part of Trudeau's promise of constitutional change during the 1980 Quebec referendum.
Section 1 of the Charter, known as the limitations clause, allows governments to justify certain infringements of Charter rights. If a court finds that a Charter right has been infringed, it conducts an analysis under section 1 by applying the Oakes test, a form of proportionality review. Infringements are upheld if the government's objective in infringing the right is "pressing and substantial" in a "free and democratic society", and if the infringement can be "demonstrably justified". Some Charter rights are subject to the notwithstanding clause (section 33). The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7 through 15 for up to five years, subject to renewal.
Section 3 of the Charter provides the right to citizens of Canada to be qualified for membership in the House of Commons. It also guarantees Canadian citizens the right to vote for a federal and provincial representative and the right to be eligible for membership in a provincial legislature. The rights provided under section 3 of the Charter may be subject to reasonable limits under Section 1 of the Charter. Section 3 is one of the provisions in the Charter that cannot be overridden by Parliament or a legislative assembly under Section 33 of the Charter, providing extra legal protection to the right to vote.
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Federal and provincial governments
Canada is a federation, and a constitutional monarchy with a parliamentary democracy. It has a federal system with two orders of government: the federal government and the provincial governments. The federal government is shared among one federal, ten provincial, and three territorial governments. The judiciary is also shared between the federal and provincial governments.
The Canadian Constitution includes the fundamental principles of federalism, democracy, constitutionalism, the rule of law, and respect for minorities. It sets out the basic principles of democratic government in Canada, defining the powers of the three branches of government. The Constitution Act of 1867 lists areas of federal jurisdiction, such as the postal system, criminal law, and defence, and areas of provincial jurisdiction, such as property and civil rights, and municipal institutions. It also includes the Canadian Charter of Rights and Freedoms, which has placed a strong focus on the individual and collective rights of Canadians.
The Constitution Act of 1982, enacted as a schedule to the Canada Act 1982, finalized Canada's legislative independence from the UK. It includes an amending formula for the Canadian constitution, which previously required enactment by the British parliament due to a lack of agreement between the federal and provincial governments. The Canada Act 1982 also provides that no further British acts of Parliament will apply to Canada, finalizing Canada's legislative independence.
The powers of Parliament are outlined in the Constitution Acts, 1867 to 1982, and concern matters of national interest. The exclusive powers of provincial legislatures, on the other hand, concern matters of a local nature. Municipal governments are created under provincial laws and can make bylaws regulating local matters such as zoning, smoking, and parking.
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Frequently asked questions
Constitutional law in Canada is an amalgamation of codified acts and unwritten but legally binding rules of constitutional practice known as conventions. The primary sources of Canadian constitutional law are legislative rules in the form of documents and statutes created over time.
The core constitutional texts in Canada are the Constitution Act of 1867 (originally enacted as the British North America Act) and the Constitution Act of 1982.
The Canadian Constitution sets out the basic principles of democratic government in Canada by defining the powers of the three branches of government: legislative, executive, and judicial. It also includes Aboriginal rights and treaty rights, and guarantees the rights and freedoms of Canadian citizens.
