Kara Sears
The Constitution of Canada is the supreme law in Canada. It comprises core written documents and provisions that are constitutionally entrenched, take precedence over all other laws and place substantive limits on government action. The Constitution of Canada includes the Constitution Act, 1867, and the Constitution Act, 1982, which contains the Canadian Charter of Rights and Freedoms. The Charter is the most important law in Canada, protecting the civil and human rights of Canadian citizens and non-citizens. It also includes provisions relating to the judicial branch of government, composed of federally appointed judges.
| Characteristics | Values |
|---|---|
| Name | Constitution of Canada (French: Constitution du Canada) |
| Type | Written and unwritten components |
| Basis | Amalgamation of codified acts, treaties between the Crown and Indigenous Peoples, uncodified traditions and conventions |
| Contents | Constitution Act, 1867 (formerly the British North America Act, 1867); Canadian Charter of Rights and Freedoms; fundamental principles of federalism, democracy, constitutionalism, the rule of law, and respect for minorities |
| Jurisdiction | Federal system where jurisdiction is divided between the federal government and various states |
| Powers | Defines powers of the three branches of government, including the executive power of the King, exercised by constitutional convention on the advice of Ministers |
| Amendments | Related to the Office of the King, language, or composition of the Supreme Court must be adopted by unanimous consent of all provinces; amendments affecting only the federal or provincial governments do not need approval from the other |
| Rights | Includes Aboriginal and treaty rights of Indigenous Peoples, with Section 15 of the Charter guaranteeing equality and non-discrimination for all individuals |
| Supremacy Clause | Section 52(1) of the Constitution Act, 1982 recognises the primacy of the Constitution, stating that any inconsistent law is of no force or effect |
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What You'll Learn
The Constitution Act, 1982
In addition to these provisions, the Constitution Act, 1982, also sets out the procedures for amending the Constitution in the future and provides for future constitutional conferences. It includes a schedule of repeals of certain constitutional enactments and the renaming of others. For example, the British North America Act, 1949, was renamed the Newfoundland Act. The Act also contains provisions related to the French version of the Constitution of Canada, with Section 55 stating that a French version of the portions of the Constitution referred to in the schedule would be prepared by the Minister of Justice of Canada.
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The Canadian Charter of Rights and Freedoms
The Canadian Constitution is the supreme law of Canada. It comprises core written documents and provisions that are constitutionally entrenched, taking precedence over all other laws and placing substantive limits on government action. The Constitution Act, 1867 (formerly the British North America Act, 1867) and the Canadian Charter of Rights and Freedoms are part of the Canadian Constitution.
Section 25 of the Charter, along with Section 35 of the Constitution Act, 1982, Part II - Rights of the Aboriginal Peoples of Canada, recognises the existing rights of Indigenous Peoples in Canada under treaties or other laws, now protected under the Constitution Act, 1982. The Charter also ensures that other rights and freedoms that exist in Canada are not extinguished simply because they are not explicitly mentioned in the Charter.
The rights and freedoms outlined in the Charter are not absolute and can be limited to protect other rights or important national values. For example, freedom of expression may be restricted by laws against hate propaganda or child pornography. Section 1 of the Charter states that Charter rights can be limited by law, provided that these limitations are reasonable in a free and democratic society.
Section 52(1) of the Constitution Act, 1982, also known as the supremacy clause, recognises the primacy of the Constitution and imposes an obligation on legal bodies to determine questions of law in a manner consistent with the Constitution. This means that any law inconsistent with the Constitution is of no force or effect, and the courts have the power to rule that a particular law is invalid if it violates the Charter.
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Provincial and territorial governments
Canada is a federation that consists of ten provinces and three territories. Each province and territory has its own government, which has authority over matters that are not under the exclusive jurisdiction of the federal government. The federal government has a "dealing power," which allows it to intervene in areas of provincial and territorial jurisdiction when necessary to achieve the objectives of federal laws.
The Constitution Act, 1867 sets out the basic framework for the distribution of powers between the federal and provincial governments. It establishes the principle of "peace, order, and good government," which gives the federal government the power to make laws for "peace, order, and good government of Canada." This includes areas such as criminal law, national defence, currency, banking, citizenship, and immigration.
The provinces are responsible for areas of exclusive jurisdiction, including the administration of justice, education, hospitals, municipal institutions, charities, and local works and undertakings. The territories have similar powers to the provinces, but their jurisdiction is delegated to them by the federal government through territorial acts.
In addition to the areas of exclusive jurisdiction, the provinces and territories also have what is called "residual jurisdiction." This means that they can legislate on any matter that has not been specifically assigned to the federal government by the Constitution. This includes areas such as property and civil rights, the incorporation of companies, and the management of natural resources.
While the provincial and territorial governments have significant autonomy in their respective areas of jurisdiction, they are still subject to the supremacy of the Constitution, which includes the Canadian Charter of Rights and Freedoms. The Charter guarantees certain political and civil rights and applies to all governments in Canada, including provincial and territorial ones. This means that provincial and territorial laws must comply with the Charter, and if they violate any of the rights and freedoms protected by it, they may be struck down by the courts.
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Aboriginal and treaty rights
The Constitution of Canada is the supreme law of the country. It includes the Constitution Act, 1867, and the Constitution Act, 1982, and sets out the basic principles of democratic government in Canada.
The rights of Indigenous Peoples in Canada, including First Nations, Métis, and Inuit, are recognised under Section 35 of the Constitution Act, 1982. This section states that the existing Aboriginal and treaty rights of Indigenous Peoples are acknowledged and affirmed.
Aboriginal rights are those that apply to all First Nations, Métis, and Inuit in Canada and are affirmed in the Constitution. These rights are distinct from treaty rights, which are specific agreements between Indigenous groups and the Crown (government). Treaty rights create binding obligations on both parties and may include rights to land and resources, as well as other provisions.
The recognition of Aboriginal and treaty rights in the Constitution was the result of advocacy and mobilisation by Indigenous groups across Canada. During the process of patriating the Constitution from the United Kingdom in the 1970s and early 1980s, Indigenous Peoples sought to ensure that their rights were included in the new Canadian Constitution. They organised action groups, lobbied politicians, launched petitions, and sought national and international support.
The inclusion of Section 35 in the Constitution Act, 1982, means that Indigenous rights under treaties or other laws are now protected under the Constitution. This protection is further supported by the Aboriginal and Treaty Rights Information System (ATRIS), a web-based geographic information system that provides information on the potential or established Aboriginal or treaty rights of Indigenous nations, collectives, communities, and organisations.
Despite the recognition of Aboriginal and treaty rights in the Constitution, controversies and disputes have arisen over the interpretation and implementation of these rights. For example, the right to self-government and the right to economic development through gaming have been subjects of disagreement between Indigenous groups and the federal government.
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The judiciary and impartiality
The Canadian Constitution is the supreme law of Canada. It includes the Constitution Act of 1867 and 1982, and the Canadian Charter of Rights and Freedoms. The Constitution sets out the basic principles of democratic government in Canada, including the powers of the three branches of government: the judicial, executive, and legislative.
The judiciary plays a crucial role in upholding the rule of law and ensuring impartiality in the Canadian legal system. Judicial independence is a fundamental principle in Canada, where judges are appointed to interpret and apply the law and the Constitution, giving impartial judgments in all cases. This independence is essential for maintaining public confidence in the justice system and ensuring that judges are free to decide honestly and impartially, without interference or influence from any source, including other branches of government.
Judges in Canada are appointed by the provincial and territorial governments for provincial and territorial courts, while federally appointed judges are appointed by the Governor in Council, with input from the Prime Minister and the Minister of Justice. Once appointed, judges are guaranteed sufficient compensation, including salary and pension, to ensure they are not subject to financial pressure. They can only be removed after an independent and impartial investigation shows good reason, further protecting their independence.
The Canadian Charter of Rights and Freedoms, which is part of the Constitution, guarantees certain rights and freedoms for all individuals, regardless of race, religion, national or ethnic origin, colour, sex, age, or disability. Section 15 of the Charter ensures equality before the law, prohibiting discrimination on various grounds, including sexual orientation, marital status, and citizenship. The judiciary plays a vital role in upholding these rights and ensuring that government actions and laws are consistent with the Constitution.
In conclusion, the judiciary in Canada operates with independence and impartiality, interpreting and applying the law without interference. This independence is safeguarded through appointment processes, compensation protections, and removal procedures. By upholding the Constitution and the Charter of Rights and Freedoms, the judiciary ensures that all Canadians are treated with equality, dignity, and respect, maintaining public confidence in the justice system.
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Frequently asked questions
The Constitution of Canada is the supreme law of the country. It includes the Constitution Act, 1867, and the Constitution Act, 1982.
The Constitution of Canada includes written and unwritten components. It outlines the system of government, recognising Canada as a constitutional monarchy, and the civil and human rights of citizens and non-citizens. It also includes the Canadian Charter of Rights and Freedoms, which protects the rights and freedoms of all individuals in Canada.
The Canadian Constitution is based on principles such as federalism, democracy, constitutionalism, the rule of law, and respect for minorities. It also includes provisions for judicial independence and parliamentary supremacy.
The Constitution of Canada serves as the fundamental framework for law-making in the country. All laws must be consistent with the rules and principles set out in the Constitution. If a law is found to be inconsistent or in violation of the Constitution, it may be ruled invalid by the courts. The Constitution also outlines the powers of the federal government, provincial governments, and territorial governments in Canada.
