Constitution Act, 1982


The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; entrenched provincial jurisdiction over natural resources; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.
This process was necessary because, after the Statute of Westminster, 1931, Canada allowed the British Parliament to retain the power to amend Canada's constitution, until Canadian governments could agree on an all-in-Canada amending formula. In 1981, following substantial agreement on a new amending formula, the Parliament of Canada requested that the Parliament of the United Kingdom give up its power to amend the Constitution of Canada. The enactment of the Canada Act 1982 by the British Parliament in March 1982 confirmed the Patriation of the Constitution and transferred to Canada the power of amending its own Constitution.
On April 17, 1982, Queen Elizabeth II and Prime Minister Pierre Trudeau, as well as the Minister of Justice, Jean Chrétien, and André Ouellet, the Registrar General, signed the Proclamation which brought the Constitution Act, 1982 into force. The proclamation confirmed that Canada had formally assumed authority over its constitution, the final step to full sovereignty.
, the Government of Quebec has never formally approved of the enactment of the act, though the Supreme Court concluded that Quebec's formal consent was never necessary and 15 years after ratification the government of Quebec "passed a resolution authorizing an amendment." Nonetheless, the lack of formal approval has remained a persistent political issue in Quebec. The Meech Lake and Charlottetown Accords were designed to secure approval from Quebec, but both efforts failed to do so.

Part I: ''Canadian Charter of Rights and Freedoms''

The Canadian Charter of Rights and Freedoms is the part I of the Constitution Act, 1982. The Charter is a bill of rights to protect certain political rights, legal rights and human rights of people in Canada from the policies and actions of all levels of government. An additional goal of the Charter is to unify Canadians around a set of principles that embody those rights. The Charter was preceded by the Canadian Bill of Rights, which was created by the government of John Diefenbaker in 1960. However, the Bill of Rights was only a federal statute and was limited in its effectiveness because it is not directly applicable to provincial laws. This motivated some within government to establish unambiguously-constitutional-level bill of rights for all Canadians. The movement for human rights and freedoms that emerged after World War II also wanted to entrench the principles enunciated in the Universal Declaration of Human Rights. The Charter was drafted by the federal government with consultations with the provincial governments in the years leading up to the passage of the Constitution Act, 1982.
One of the most notable effects of the adoption of the Charter was to greatly expand the range of judicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Canadian Bill of Rights. The courts, when confronted with violations of Charter rights, have struck down unconstitutional statutes or parts of statutes, as they did when Canadian case law was primarily concerned with resolving issues of federalism. However, section 24 of the Charter granted new powers to the courts to enforce more creative remedies and to exclude improperly obtained evidence in criminal trials. These powers are greater than what was typical under the common law and under the principle of Parliamentary supremacy, which Canada had inherited from the United Kingdom.
Section 59 limits the application of section 23 of the Charter in Quebec. Paragraph 23 of the Charter, which guarantees the minority language education rights of Canadian citizens "whose first language learned and still understood is that of the English or French minority linguistic minority population of the province in which they reside" will not be in force in Quebec until the Quebec government or legislature chooses to ratify it.

Part II: Rights of the aboriginal peoples of Canada

Section 35 of the Constitution Act, 1982 "recognizes and affirms" the "existing" aboriginal and treaty rights in Canada. These aboriginal rights protect the activities, practice, or traditions that are integral to the distinct cultures of the aboriginal peoples. The treaty rights protect and enforce agreements between the Crown and aboriginal peoples. Section 35 also provides protection of aboriginal title which protects the use of land for traditional practices.
Subsection 35 provides that aboriginal and treaty rights extend to Indian, Inuit, and Métis peoples and subsection 35, which was added in 1983, ensures that they "are guaranteed equally to any male and female persons".
Subsection 35, which was also added in 1983, clarifies that "treaty rights" include "rights that now exist by way of land claims agreements or may be so acquired". As a result, by entering into land claims agreements, the government of Canada and members of an aboriginal people can establish new treaty rights, which are constitutionally recognized and affirmed.
There are other sections of the Constitution Act, 1982 that address aboriginal rights. Section 25 of the Charter provides that the guarantee of rights and freedoms in the Charter should not be understood to "abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada, including any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and any rights or freedoms that now exist by way of land claims agreements or may be so acquired."

Part III: Equalization and regional disparities

Section 36 enshrines in the Constitution a value of equal opportunity for the Canadian people, economic development to support that equality, and government services available for public consumption. Subsection 2 goes further in recognizing a "principle" that the federal government should ensure equalization payments.
Writing in 1982, Professor Peter Hogg expressed scepticism as to whether the courts could interpret and enforce this provision, noting its "political and moral, rather than legal" character. Other scholars have noted section 36 is too vague.
Since the courts would not be of much use in interpreting the section, the section was nearly amended in 1992 with the Charlottetown Accord to make it enforceable. The Accord never came into effect.

Parts IV and IV.1: Constitutional conferences

These two parts provided for constitutional conferences within certain time limits. Once the conferences were held, the two parts were repealed.

Part V: Procedure for Amending Constitution of Canada

Subsection 52 of the Constitution Act, 1982 requires constitutional amendments to be made in accordance with the rules set out in the Constitution itself. Subsection 52 entrenches constitutional supremacy and prevents Parliament and the provincial legislatures from making most constitutional amendments using simple legislation.
The rules for amending Canada's constitution are mostly laid out in Part V of the Constitution Act, 1982.
There are five different amendment procedures, each applicable to different types of amendments. These five formulas are:
  1. The general procedure – section 38. The amendment must be passed by the House of Commons, the Senate, and at least two-thirds of the provincial legislative assemblies representing at least 50% of the total population of the provinces. This is the default procedure and it covers any amendment procedure not covered more specifically in sections 41, 43, 44 or 45. The general formula must be used for any of the six situations identified in section 42.
  2. The unanimity Procedure – section 41. The amendment must be passed by the House of Commons, Senate, and all provincial legislative assemblies.
  3. The special arrangements procedure – section 43. The amendment must be passed by the House of Commons, the Senate, and the legislative assemblies of those provinces that are affected by the amendment.
  4. Federal Parliament Alone – section 44. The amendment must only be passed by Parliament under its ordinary legislative procedure.
  5. Provincial Legislature Alone – section 45. The amendment must only be passed by the provincial legislature under its ordinary legislative procedure.
Neither aboriginal peoples' or the territories' agreement is required to make a constitutional amendment, even if it affects their interests. Section 35.1 commits the governments of Canada and the provinces "to the principle that, before any amendment is made " that the Prime Minister will convene a conference of first ministers to discuss the amendment and invite "representatives of the aboriginal peoples of Canada" to discuss the amendment. Section 35.1 was added to Part II of the Constitution Act, 1982 in 1983. Section 35.1 was invoked in the negotiations that led to the Charlottetown Accord, which would have greatly expanded aboriginal rights and recognized a right to self-government.
Various other sections of Part V lay out such things as compensation for opting out, when and how a province may opt out of a constitutional amendment, and time limits for achieving a constitutional amendment.