Cameron Miranda
The supreme law of a nation is the highest legal power, forming the basis on which all other laws are constructed. Canada's supreme law is its Constitution, which includes written and unwritten components. The Constitution Act, 1982, states that the Constitution of Canada is the supreme law of Canada and that any inconsistent law is invalid. The Constitution outlines Canada's system of government and the civil and human rights of its citizens and non-citizens. It comprises core written documents and provisions that take precedence over all other laws and limit government action. These include the Constitution Act, 1867 (formerly the British North America Act, 1867), and the Canadian Charter of Rights and Freedoms. The Constitution Act, 1867, also provided for the establishment of the Supreme Court of Canada, led by the Chief Justice of Canada.
| Characteristics | Values |
|---|---|
| Supreme law of the land | Constitution of Canada |
| Basis for all other laws | Yes |
| Highest legal power | Yes |
| Written components | The Canada Act 1982, acts and orders referred to in its schedule, and any amendments to these documents |
| Unwritten components | Federalism, democracy, constitutionalism, the rule of law, and respect for minorities |
| Rights protected | Civil and human rights of citizens and non-citizens |
| Limits government power | Yes |
| Checks on government | Yes |
| Stability and predictability | Yes |
| Equal justice | Yes |
| Protection of rights | Yes |
| Judicial independence | Yes |
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What You'll Learn
The Constitution of Canada is the supreme law
The Constitution of Canada outlines the system of government and the civil and human rights of citizens and non-citizens in the country. It includes written and unwritten components, with the written documents taking precedence over all other laws and placing substantive limits on government action. The written components include the Canada Act 1982, the acts and orders referred to in its schedule (including the Constitution Act, 1867), and any amendments to these documents. The unwritten components include pre-confederation acts and constitutional principles such as federalism, democracy, constitutionalism, the rule of law, and respect for minorities.
The Constitution Act, 1867 (formerly the British North America Act, 1867), affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. It also provided for a constitution "'similar in principle' to the largely unwritten constitution of the United Kingdom, recognizing Canada as a constitutional monarchy. The Act authorized Parliament to establish a general court of appeal for Canada, as well as additional courts to better administer the laws of Canada, including the Federal Courts, the Tax Court, and the Supreme Court of Canada.
The Supreme Court of Canada is the highest court and final arbiter, interpreting laws and striking down Acts of Parliament that violate the constitution. While the written constitution takes precedence, the Supreme Court has recognized the existence of unwritten constitutional conventions and has provided factors for their existence. The Court has also reaffirmed the existence of unwritten constitutional components, including Aboriginal rights and Crown treaties with particular First Nations.
The Constitution of Canada, as the supreme law of the land, acts as a check on government power, ensuring that the government does not misuse its authority and is accountable to the people. It establishes fundamental principles, rights, and government structures, ensuring the smooth operation of the entire legal framework and safeguarding the rights and democracy of the country.
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The role of the judiciary
Canada's judiciary plays a crucial role in interpreting laws and ensuring that any legislation passed by the federal, provincial, or territorial government aligns with the country's supreme law, as outlined in the Constitution. The judiciary's independence from the legislative and executive branches is a cornerstone of Canada's justice system, safeguarding judges' ability to make impartial decisions based solely on facts and laws.
The Supreme Court of Canada, led by the Chief Justice of Canada, is the highest court and final arbiter. It hears appeals from lower courts and provides rulings on significant constitutional matters, complex legal issues, and controversial cases. The Supreme Court also interprets the constitution and ensures that the fundamental rights and freedoms of Canadians are upheld.
The nine judges of the Supreme Court are appointed by the Governor in Council, which includes the Governor General acting on the advice of the Prime Minister and, for superior court judges, the Minister of Justice. These judges represent the four major regions of the country, with three of them hailing from Quebec to represent the civil law system.
The federal and provincial governments play a role in administering justice within their respective jurisdictions. While the federal government holds exclusive law-making power over criminal law and criminal procedure, the provinces are responsible for establishing and managing their criminal courts. Provincial courts handle most criminal offences, money matters, and family matters, applying common-law principles or specific codes, such as the Quebec Civil Code.
To maintain judicial independence, judges' salaries and benefits are determined by an independent compensation commission. Institutions like the Canadian Judicial Council, the Commissioner for Federal Judicial Affairs, and the National Judicial Institute support the separation of powers and ensure that judges are free from interference in their legal decision-making processes.
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Aboriginal rights and treaties
Treaties are agreements between the Government of Canada, Indigenous groups, and often provinces and territories. They define ongoing rights and obligations for all parties involved. Treaty rights are rights set out in either a historic or modern treaty agreement. These rights are recognised and affirmed by section 35 of the Constitution Act, 1982. Treaties define specific rights, benefits, and obligations for the signatories that vary from treaty to treaty.
Aboriginal rights, also referred to as Indigenous rights, are the collective rights of distinctive Indigenous societies flowing from their status as the original peoples of Canada. These rights are inherent and protected under the Constitution Act, 1982. Section 35 of the Constitution Act, 1982, affirmed that Aboriginal title and the rights that go along with it exist whether or not there is a treaty. However, Section 35 does not define those rights, and uncertainty about how and where these rights apply can discourage investment and economic development.
In the past, the Government of Canada required First Nations to "cede, release and surrender" their aboriginal rights in exchange for treaty rights. This approach, known as the "'extinguishment model'", has been rejected by First Nations in the BC treaty negotiations process as fundamentally inconsistent with their inherent rights and survival as Indigenous peoples. Governments have since changed their position, and treaties and agreements no longer extinguish rights.
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. The recognition of Aboriginal rights and treaties in Canada's Constitution is the result of civic actions taken by Aboriginal groups to ensure that their rights were recognised in the new Canadian Constitution in the 1970s and 1980s.
The Supreme Court of Canada first acknowledged the existence of Aboriginal title in 1973 in the case of Calder v. British Columbia. While the Supreme Court Justices were split on whether Aboriginal title had been extinguished, this case paved the way for case law surrounding Aboriginal title and land claims. The Government of Canada 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 the relationship between the government and Indigenous peoples.
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Federal and provincial powers
Canada is a federation with eleven components: the national Government of Canada and ten provincial governments. There are also three territorial governments in the far north, which exercise powers delegated by the federal parliament, and municipal governments, which exercise powers delegated by the provinces or territories.
The Constitution Act, 1867 affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. The Constitution Act, 1930 gave the provinces of Manitoba, British Columbia, Alberta, and Saskatchewan jurisdiction over crown lands, other public lands, and/or natural resources. The Constitution Act, 1940 saw the provinces yield some power over social policy to the Federal Parliament, allowing the creation of a national program of employment insurance. The Constitution Act, 1951 saw the provinces yield further powers over social policy, allowing the establishment of a national program of old-age pensions.
The federal government has the residual power to make laws necessary for Canada's "peace, order and good government". Provincial jurisdiction includes property and civil rights, natural resources, hospitals, municipalities, and education (except education on First Nation reserves). Provincial legislatures delegate some of their powers to municipal governments.
Some areas of government action are not specifically assigned to one or both orders of government in the Constitution Act, 1867. These areas include the environment and health. The federal Trade and Commerce power allows Parliament to regulate trade across Canada and international borders, but not within provinces. The provincial power over Property and Civil Rights gives provinces the authority to regulate trade and commerce within their territories.
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The legal system's roots
The Canadian legal system, like many former colonies, has roots in multiple legal traditions. The country's legal foundations lie in the English common law system inherited from its colonial past under the British Empire, the French civil law system from the period of the French Empire, and the Indigenous law systems developed by various Indigenous Nations.
English common law forms the basis of the Canadian legal system, influencing its structure and principles. The British North America Act of 1867 (renamed the Constitution Act, 1867 in 1982) affirmed parliamentary governance and divided powers between the federal and provincial governments. This act codified many constitutional rules and established the Supreme Court of Canada, which is the country's highest court and final arbiter. The Statute of Westminster in 1931 granted full autonomy to Canada, further shaping the country's legal system.
The French civil law system also left its mark on Canada, particularly in Quebec, where civil law predominates. This influence reflects Canada's historical connection to the French Empire. Additionally, the recognition and inclusion of Indigenous law systems are essential aspects of Canada's legal roots. Canadian Aboriginal law provides constitutionally recognized rights to land and traditional practices for Indigenous groups. Various treaties and case laws were established to mediate relations between Europeans and Indigenous peoples, and these agreements continue to have legal significance today.
Canada's Constitution, which consists of written text and unwritten conventions, is the supreme law of the land. The Constitution Act, 1982, ended all legislative ties to Britain and included the Canadian Charter of Rights and Freedoms, guaranteeing basic rights and freedoms. This act also added a constitutional amending formula, allowing for amendments to be made within Canada. The Constitution outlines Canada's system of government and the civil and human rights of both citizens and non-citizens, serving as the ultimate source of legal authority in the country.
Canada's judiciary plays a crucial role in interpreting the laws and upholding the Constitution. The Supreme Court of Canada has the power to strike down Acts of Parliament that violate the Constitution, ensuring that no law can override the Constitution's principles. The recognition of constitutional conventions by the Supreme Court acknowledges the existence of unwritten elements within the Constitution, such as federalism, democracy, constitutionalism, and the rule of law.
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Frequently asked questions
The supreme law of the land in Canada is the Constitution of Canada.
The Constitution of Canada is the supreme law of the country and consists of written text and unwritten conventions. It outlines Canada's system of government and the civil and human rights of citizens and non-citizens.
The Supreme Court of Canada is the highest court and final arbiter. It plays a crucial role in interpreting laws and has the power to strike down Acts of Parliament that violate the Constitution.
Constitutional supremacy in Canada ensures that the Constitution, as the supreme law, takes precedence over all other laws and limits government power. It safeguards individual rights, maintains democracy, and ensures a fair legal system.
