Constitution of Canada
The Constitution of Canada is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents are an amalgamation of various codified acts, treaties between the Crown and Indigenous Peoples, uncodified traditions and conventions. Canada is one of the oldest constitutional monarchies in the world.
The Constitution of Canada comprises core written documents and provisions that are constitutionally entrenched, take precedence over all other laws and place substantive limits on government action; these include the Constitution Act, 1867 '' and the Canadian Charter of Rights and Freedoms. The Constitution Act, 1867 provides for a constitution "similar in principle" to the largely unwritten constitution of the United Kingdom, recognizes Canada as a constitutional monarchy and federal state, and outlines the legal foundations of Canadian federalism.
The Constitution of Canada includes written and unwritten components. Section 52 of the Constitution Act, 1982 states that "the Constitution of Canada is the supreme law of Canada" and that any inconsistent law is of no force or effect. It further lists written documents which are included in the Constitution of Canada; these are the Canada Act 1982, the acts and orders referred to in its schedule, and any amendments to these documents.
The Supreme Court of Canada has held that this list is not exhaustive and that the Constitution of Canada includes a number of pre-Confederation acts and unwritten components as well. The Canadian constitution also includes the fundamental principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. See list of Canadian constitutional documents for details.
History of the constitution
The first semblance of a constitution for Canada was the Royal Proclamation of 1763. The act renamed the northeasterly portion of the former French province of New France as the Province of Quebec, roughly coextensive with the southern third of contemporary Quebec. The proclamation, which established an appointed colonial government, was the constitution of Quebec until 1774 when the British parliament passed the Quebec Act, which expanded the province's boundaries to the Ohio and Mississippi Rivers. Significantly, the Quebec Act also replaced French criminal law with the English common law system; but the French civil law system was retained for non-criminal matters.Image:Fathers of Confederation LAC c001855.jpg|thumb|left|A painting depicting negotiations that would lead to the enactment of the British North America Act, 1867
The Treaty of Paris of 1783 ended the American War of Independence and sent a wave of British loyalist refugees northward to Quebec and Nova Scotia. In 1784, the two provinces were divided: Nova Scotia was split into Nova Scotia, Cape Breton Island, Prince Edward Island, and New Brunswick, while Quebec was split into Lower Canada and Upper Canada. The winter of 1837–38 saw rebellion in both Canadas, contributing to their re-union as the Province of Canada in 1841.
The British North America Act, 1867 established the Dominion of Canada as a federation of provinces. Initially, on July 1, 1867, four provinces entered into confederation as "One dominion under the name of Canada": Canada West, Canada East, Nova Scotia, and New Brunswick. Title to the Northwest Territories was transferred by the Hudson's Bay Company in 1870, out of which the province of Manitoba was created. British Columbia joined Confederation in 1871, followed by Prince Edward Island in 1873. The Yukon Territory was created by Parliament in 1898, followed by Alberta and Saskatchewan in 1905. Newfoundland, Britain's oldest colony in the Americas and by then also a Dominion, joined Confederation in 1949. Nunavut was created in 1999 from the Northwest Territories.
An Imperial Conference in 1926 that included the leaders of all Dominions and representatives from India, led to the eventual enactment of the Statute of Westminster 1931. The statute, an essential transitory step from the British Empire to the Commonwealth of Nations, provided that existing Dominions became fully sovereign of the United Kingdom and any new Dominions would be fully sovereign upon the grant of Dominion status. Although listed, Newfoundland never ratified the statute so was still subject to imperial authority when its entire system of government and economy collapsed in the mid-1930s. Canada did ratify the statute but with a requested exception—the Canadian federal and provincial governments could not agree on an amending formula for the Canadian constitution. It would be another 50 years before this was achieved. In the interim, the British parliament periodically passed constitutional amendments when requested by the government of Canada. This was never anything but a rubber stamp.
The patriation of the Canadian constitution was achieved in 1982 when the British parliament, with the request and assent of the Canadian Parliament, passed the Canada Act 1982, which included in its schedules the Constitution Act, 1982. The United Kingdom thus renounced any remaining responsibility for, or jurisdiction over, Canada. In a formal ceremony on Parliament Hill in Ottawa, Queen Elizabeth II proclaimed the Constitution Act, 1982 into law on April 17, 1982.
The Constitution Act, 1982, includes the Canadian Charter of Rights and Freedoms. Before the Charter, various statutes protected an assortment of civil rights and obligations but nothing was enshrined in the constitution until 1982. The Charter has thus placed a strong focus upon individual and collective rights of the people of Canada. The enactment of the Charter of Rights and Freedoms has fundamentally changed much of Canadian constitutional law. The act also codified many previously oral constitutional conventions and made amendment of the constitution in general significantly more difficult. Previously, the Canadian constitution could be formally amended by an act of the British parliament, or by informal agreement between the federal and provincial governments, or even simply by adoption as the custom of an oral convention or performance that shows precedential but unwritten tradition. Since the act, textual amendments must now conform to certain specified provisions in the written portion of the Canadian constitution.
''Constitution Act, 1867''
This was an act of the British parliament, originally called the British North America Act 1867. It outlined Canada's system of government, which combines Britain's Westminster model of parliamentary government with the division of sovereignty. Although it is the first of 20 British North America Acts, it is the most famous as the primary document of Canadian Confederation. With the patriation of the Constitution in 1982, this act was renamed Constitution Act, 1867. In recent years, the 1867 document has mainly served as the basis on which the division of powers between the provinces and the federal government is analyzed.''Constitution Act, 1982''
Endorsed by all provincial governments except that of Quebec, this was the formal act of Parliament that effected Canada's full legislative independence from the United Kingdom. Part V of this act established an amending formula for the Canadian constitution, the lack of which meant Canada's constitutional amendments still required enactment by the British parliament after the Statute of Westminster in 1931.The Constitution Act, 1982 was enacted as a schedule to the Canada Act 1982, a British act of Parliament which was introduced at the request of a joint address to Queen Elizabeth II by the Senate and House of Commons of Canada. The version of the Canada Act 1982 which is in force in Britain is in English only, but the version of the act in force in Canada is bilingual, English and French. In addition to enacting the Constitution Act, 1982, the Canada Act 1982 provides that no further British acts of Parliament will apply to Canada as part of its law, finalizing Canada's legislative independence.
Canadian Charter of Rights and Freedoms
As noted above, this is Part I of the Constitution Act, 1982. The Charter is the constitutional guarantee of the civil rights and liberties of every citizen in Canada, such as freedom of expression, of religion, and of mobility. Part II addresses the rights of Aboriginal peoples in Canada.It is written in plain language to ensure accessibility to the average citizen. It applies only to government and government actions to prevent the government from creating unconstitutional laws.
Amending formula
Instead of the usual parliamentary procedure, which includes the monarch's formal royal assent for enacting legislation, amendments to any of the acts that collectively form the constitution must be done in accordance with Part V of the Constitution Act, 1982, which provides for five different amending formulae. Amendments can be brought forward under section 46 by any province or the federal legislature. The general formula set out in section 38, known as the "7/50 formula", requires: assent from both the House of Commons and the Senate; the approval of two-thirds of the provincial legislatures representing at least 50 per cent of the population of the provinces. This formula specifically applies to amendments related to the proportionate representation in Parliament, powers, selection, and composition of the Senate, the Supreme Court, and the addition of provinces or territories.The other amendment formulae are for particular cases as provided by the act. An amendment related to the Office of the King, the use of either official language, the amending formula itself, or the composition of the Supreme Court, must be adopted by unanimous consent of all the provinces in accordance with section 41. In the case of an amendment related to provincial boundaries or the use of an official language within a province alone, the amendment must be passed by the legislatures affected by the amendment. In the case of an amendment that affects the federal government only, the amendment does not need the approval of the provinces. Similarly, amendments affecting a provincial government alone do not need the approval of the Parliament or the other provinces.