Cecily Zamora
Canada's Constitution Act, 1982, received royal assent on March 29, 1982, in London, marking the country's legal independence. This act brought into force a new amending formula, ending any role for the British Parliament in Canadian law and implementing the Canadian Charter of Rights and Freedoms. While the Statute of Westminster 1931 restricted the British Parliament's power to legislate for Canada, the Dominion of Canada did not choose to accept full legal autonomy at the time, and the power to amend the Canadian constitution remained with Britain until 1982. The Constitution Act, 1867, centralized broad national matters with the federal government, including criminal law, trade and commerce, banking, and immigration, while matters such as property, municipalities, and most private law are controlled by the provinces.
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What You'll Learn
Canada's legal autonomy in 1931
Canada gained legal autonomy in 1931 with the passing of the Statute of Westminster. This was a significant step toward Canada's independence from Britain, as it granted legislative equality to Canada and other Commonwealth Dominions. Before 1931, the British government held certain powers over legislation passed by the Commonwealth Dominions, including Canada, and had overriding authority over their legislatures.
The Statute of Westminster, passed on December 11, 1931, by the British Parliament, was done at the request and with the consent of the Dominions. It clarified and cemented the legislative independence of the Dominions, including Canada. This statute proclaimed that while the Dominions would remain in allegiance with the Crown, each would be granted full legal autonomy.
However, Canada did not immediately adopt all its new powers under the Statute of Westminster. For example, the Judicial Committee of the Privy Council, a British body, remained the final court of appeal for Canadians until 1949, when that power shifted to the Supreme Court of Canada. Additionally, Canada chose not to exercise its full legal autonomy in 1931, as there were concerns about who would have the power to amend Canada's constitutional acts.
It wasn't until the Canada Act of 1982 that Canada fully severed its constitutional ties with Britain. This act received royal assent on March 29, 1982, in London, and was proclaimed in force by Queen Elizabeth II on April 17, 1982, on Parliament Hill in Ottawa. This proclamation marked the end of any role for the British Parliament in Canadian law and implemented the Canadian Charter of Rights and Freedoms.
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The Constitution Act, 1982
Canada's Constitution Act, 1982, was proclaimed in force by Queen Elizabeth II as Queen of Canada on April 17, 1982, on Parliament Hill in Ottawa. The Constitution Act, 1982, was enacted as Schedule B to the Canada Act 1982. The proclamation marked the end of a long process and effort by many successive governments to patriate the Constitution. The proclamation brought into force the new amending formula, ending any role for the British Parliament in Canadian law, and implemented the Canadian Charter of Rights and Freedoms.
The Canada Act 1982 received royal assent on March 29, 1982, in London. The enactment of the Canada Act 1982 by the British Parliament confirmed the patriation of the Constitution and transferred to Canada the power to amend its Constitution. The Constitution Act, 1982, introduced several amendments to the British North America Act, 1867, including renaming it the Constitution Act, 1867. The Act was introduced as part of Canada's process of patriating the Constitution, which was necessary because, after the Statute of Westminster in 1931, Canada allowed the British Parliament to retain the power to amend Canada's constitution.
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Canada's bijural system
Canada gained full legal autonomy in 1982 with the Canada Act, which ended any role for the British Parliament in Canadian law. However, the country's bijural system, which recognises both common law and civil law, has a long history that dates back to the colonisation of North America by France and Great Britain.
The bijural system in Canada is a result of the country's colonial past, with the first formal recognition of the coexistence of two legal traditions occurring in the Quebec Act of 1774. This was later confirmed in the Constitution Act of 1867, which expressly provided that "Property and Civil Rights in the Province" were within the exclusive jurisdiction of the province, outside of the federal heads of power.
The Department of Justice Canada plays a crucial role in bijuralism by providing legal services such as drafting laws and offering legal advice to the government. The department has also developed policies to harmonise federal legislation with the civil law of Quebec, leading to innovative drafting techniques and the development of new concepts and terminology. This harmonisation process aims to produce federal legislation that reflects the legal system in force in each province and territory.
The Supreme Court of Canada has also recognised the existence of constitutional conventions and plays a role in interpreting and applying the Constitution. While Canada's bijural system presents a unique legal landscape, it is an expression of the country's commitment to respecting the cultures and identities associated with its two legal traditions.
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Provincial and territorial lawmaking
Canada's ability to decide its own laws has evolved over time, with the country gaining full legal autonomy in 1982 with the Canada Act. This Act ended any role for the British Parliament in Canadian law, and implemented the Canadian Charter of Rights and Freedoms.
Canada's parliamentary system is derived from the British "Westminster" tradition, and as such, Canada is a federal state with a distribution of powers between the federal government and provincial and territorial legislatures. The Parliament of Canada can make laws for the entire country, but only on matters assigned to it by the Constitution. The three territories—Yukon, the Northwest Territories, and Nunavut—do not have any jurisdiction in their own right, and Parliament has full legislative authority over them, although this power has been largely devolved to territorial legislatures.
The provincial and territorial legislatures, on the other hand, can only make laws about matters within their respective province's or territory's borders. These include areas such as property and civil rights, which encompass broad powers to enact laws of a civil nature, including property law, contract law, and family law. Provincial jurisdiction also covers natural resources, hospitals, municipalities, and education (except for education on First Nation reserves).
Each province has its own statutes, which contain the major topic areas and most of the statutes enacted by the respective provincial governments. These statutes do not include criminal law, as this is under federal jurisdiction.
The provincial legislatures also have exclusive jurisdiction over certain areas, such as education, as outlined in the Constitution Act, 1867. Furthermore, each Canadian province and territory has its own human rights body and anti-discrimination framework that applies to provincially regulated activities, although protections may vary across the country.
The provincial judges are appointed under provincial laws, while federally appointed judges are outlined in the Constitution.
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Indigenous legal traditions
Canada gained full legal autonomy from Britain in 1982 with the Canada Act 1982, which also ended any role for the British Parliament in Canadian law.
Canada was founded on the original territories of over 900 different Indigenous groups, each with its own distinct legal traditions. These Indigenous legal traditions were important organising forces that shaped behaviour, guided relationships, and addressed conflicts within Indigenous societies. They were flexible and adaptable, emphasising personal and community balance, and did not compartmentalise different sections of law as seen in Western legal systems.
Indigenous law was not always recognised as legitimate in conflicts with non-Indigenous legal systems, as seen in the Wet’suwet’en First Nation dispute. However, the Constitution Act, 1982 (Section 35) recognised Aboriginal and treaty rights, which are now widely acknowledged as including inherent rights to self-government. The appointment of the first Indigenous justice to the Supreme Court of Canada in 2022 is also seen as a significant step towards better reflecting and safeguarding Indigenous legal systems within the Canadian legal framework.
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Frequently asked questions
Canada gained legal autonomy in 1931 under the Statute of Westminster. However, Canada did not choose to accept full legal autonomy until 1982 with the Canada Act.
The Canada Act 1982 received royal assent on March 29, 1982, in London. It marked the end of the British Parliament's involvement in Canadian law and implemented the Canadian Charter of Rights and Freedoms.
The Canadian Charter of Rights and Freedoms ensures that Canadians are free to create and express their ideas, gather to discuss them, and communicate them widely to other people. It also guarantees Canadians a democratic government and a right to vote in elections.
The Parliament of Canada has the authority to make laws for all of Canada, but only about matters that the Constitution assigns to it. These include issues concerning Canada as a whole, such as trade between provinces, national defense, criminal law, money, patents, and the postal service.
The provincial governments in Canada can make laws about matters within their respective province's borders. This includes property and civil rights, which encompass areas such as property law, contract law, and family law.
