The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's
system of government A government is the system or group of people governing an organized community, generally a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is ...
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 (both historical and modern), uncodified traditions and conventions. Canada is one of the oldest constitutional monarchies in the world. According to subsection 52(2) of the '' Constitution Act, 1982'', the Canadian Constitution consists of the '' Canada Act 1982'' (which includes the '' Constitution Act, 1982''), acts and orders referred to in its schedule (including in particular the ''
Constitution Act, 1867 The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'', formerly the ''British North America Act, 1867''), and any amendments to these documents. The
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to b ...
has held that the list is not exhaustive and also includes a number of pre-confederation acts and unwritten components as well. 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 Royal Proclamation of 1763 was issued by King George III on 7 October 1763. It followed the Treaty of Paris (1763), which formally ended the Seven Years' War and transferred French territory in North America to Great Britain. The Procla ...
. The act renamed the northeasterly portion of the former French province of New France as 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 (one of the grievances listed in the United States Declaration of Independence). 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. The Treaty of Paris of 1783 ended the
American War of Independence The American Revolutionary War (April 19, 1775 – September 3, 1783), also known as the Revolutionary War or American War of Independence, was a major war of the American Revolution. Widely considered as the war that secured the independence of t ...
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 (rejoined to Nova Scotia in 1820), Prince Edward Island, and New Brunswick, while Quebec was split into Lower Canada (southern Quebec) and Upper Canada (southern through lower northern Ontario). 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 1 July 1867, four provinces entered into confederation as "One dominion under the name of Canada": Canada West (former
Upper Canada The Province of Upper Canada (french: link=no, province du Haut-Canada) was a part of British Canada established in 1791 by the Kingdom of Great Britain, to govern the central third of the lands in British North America, formerly part of the ...
, now Ontario),
Canada East Canada East (french: links=no, Canada-Est) was the northeastern portion of the United Province of Canada. Lord Durham's Report investigating the causes of the Upper and Lower Canada Rebellions recommended merging those two colonies. The new ...
(former Lower Canada, now Quebec), 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 (the first to be established by the Parliament of Canada) was created.
British Columbia British Columbia (commonly abbreviated as BC) is the westernmost province of Canada, situated between the Pacific Ocean and the Rocky Mountains. It has a diverse geography, with rugged landscapes that include rocky coastlines, sandy beaches, f ...
joined Confederation in 1871, followed by Prince Edward Island in 1873. The
Yukon Territory Yukon (; ; formerly called Yukon Territory and also referred to as the Yukon) is the smallest and westernmost of Canada's three territories. It also is the second-least populated province or territory in Canada, with a population of 43,964 as ...
was created by Parliament in 1898, followed by Alberta and Saskatchewan in 1905 (all out of parts of the Northwest Territories). 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 (which then included Burma, Bangladesh, and Pakistan), led to the eventual enactment of the
Statute of Westminster 1931 The Statute of Westminster 1931 is an act of the Parliament of the United Kingdom that sets the basis for the relationship between the Commonwealth realms and the Crown. Passed on 11 December 1931, the statute increased the sovereignty of t ...
. 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 Patriation is the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. The process was necessary because under the Statute of Westminster 1931, with Canada's agreement at the time, the British par ...
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 Parliament Hill (french: Colline du Parlement, colloquially known as The Hill, is an area of Crown land on the southern banks of the Ottawa River in downtown Ottawa, Ontario, Canada. Its Gothic revival suite of buildings, and their architect ...
in Ottawa, Queen Elizabeth II proclaimed the ''Constitution Act, 1982'' into law on 17 April 1982. The ''Constitution Act, 1982'', includes the ''
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
''. 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 ( federalism). Although it is the first of 20 '' British North America Acts'', it is the most famous as the primary document of
Canadian Confederation Canadian Confederation (french: Confédération canadienne, link=no) was the process by which three British North American provinces, the Province of Canada, Nova Scotia, and New Brunswick, were united into one federation called the Dominion of ...
. 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 (due to more than 50 years of disagreement between the federal and provincial governments) meant Canada's constitutional amendments still required enactment by the British parliament after 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 In Canada, Indigenous groups comprise the First Nations, Inuit and Métis. Although ''Indian'' is a term still commonly used in legal documents, the descriptors ''Indian'' and ''Eskimo'' have fallen into disuse in Canada, and most consider them ...
. 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 Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in othe ...
for enacting legislation, amendments to the Constitution Act, 1982, 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(1) by any province or the federal legislature. The general formula set out in section 38(1), known as the "7/50 formula", requires: (a) assent from both the House of Commons and the Senate; (b) the approval of two-thirds of the provincial legislatures (at least seven provinces) representing at least 50 per cent of the population (effectively, this would include at least Quebec or Ontario, as they are the most populous 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 (subject to section 43), 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 (section 43). In the case of an amendment that affects the federal government only, the amendment does not need the approval of the provinces (section 44). The same applies to amendments affecting the provincial government alone (section 45).

Sources of the constitution

Canada's constitution has roots going back to the thirteenth century, including England's Magna Carta and the first English Parliament of 1275. Canada's constitution is composed of several individual statutes. There are three general methods by which a statute becomes entrenched in the Constitution: # Specific mention as a constitutional document in section 52(2) of the ''Constitution Act, 1982'' (e.g., the ''Constitution Act, 1867''). # Constitutional entrenchment of an otherwise statutory English, British, or Canadian document because its (still in force) subject matter provisions are explicitly assigned to one of the methods of the amending formula (per the Constitution Act, 1982)—e.g., provisions with regard to the monarchy in the English
Bill of Rights 1689 The Bill of Rights 1689 is an Act of the Parliament of England, which sets out certain basic civil rights and clarifies who would be next to inherit the Crown, and is seen as a crucial landmark in English constitutional law. It received Roya ...
or the
Act of Settlement 1701 The Act of Settlement is an Act of the Parliament of England that settled the succession to the English and Irish crowns to only Protestants, which passed in 1701. More specifically, anyone who became a Roman Catholic, or who married one, b ...
. #*English and British statutes are part of Canadian law because of the Colonial Laws Validity Act 1865; section 129 of the ''Constitution Act, 1867''; and the Statute of Westminster 1931. If still at least partially unrepealed those laws then became entrenched when the amending formula was made part of the constitution. # Reference by an entrenched document—e.g., the Preamble of the ''Constitution Act, 1867'''s entrenchment of written and unwritten principles from the
constitution of the United Kingdom The constitution of the United Kingdom or British constitution comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no attempt ...
or the ''Constitution Act, 1982'''s reference to the
Proclamation of 1763 The Royal Proclamation of 1763 was issued by King George III on 7 October 1763. It followed the Treaty of Paris (1763), which formally ended the Seven Years' War and transferred French territory in North America to Great Britain. The Proc ...
. #*Crucially, this includes Aboriginal rights and Crown treaties with particular First Nations (e.g., historic "numbered" treaties; modern land-claims agreements).

Unwritten or uncodified sources

The existence of unwritten constitutional components was reaffirmed in 1998 by the Supreme Court in '' Reference re Secession of Quebec''.
The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading.
In practice, there have been three sources of unwritten constitutional law: ; Conventions: Constitutional conventions form part of the constitution, but they are not judicially enforceable. They include the existence of the office of prime minister and the Cabinet, the practise that the Crown in most circumstances is required to grant
royal assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in othe ...
to bills adopted by both houses of Parliament, and the requirement that the prime minister either resign or request a dissolution and general election upon losing a vote of confidence in the House of Commons. ; Royal prerogative: Reserve powers of the Canadian Crown, being remnants of the powers once held by the British Crown, reduced over time by the parliamentary system. Primarily, these are the
orders in Council An Order-in-Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council ('' K ...
, which give the government the authority to declare war, conclude treaties, issue passports, make appointments, make regulations, incorporate, and receive lands that
escheat Escheat is a common law doctrine that transfers the real property of a person who has died without heirs to the crown or state. It serves to ensure that property is not left in "limbo" without recognized ownership. It originally applied to a ...
to the Crown. ; Unwritten principles:Principles that are incorporated into the Canadian constitution by the preamble of the ''
Constitution Act, 1867 The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'', including a statement that the constitution is "similar in Principle to that of the United Kingdom", much of which is unwritten. Unlike conventions, they are justiciable. Amongst those principles most recognized as constitutional to date are federalism, liberal democracy, constitutionalism, the rule of law, and respect for minorities. Others include
responsible government Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability, the foundation of the Westminster system of parliamentary democracy. Governments (the equivalent of the executive br ...
representation by population Political representation is the activity of making citizens "present" in public policy-making processes when political actors act in the best interest of citizens. This definition of political representation is consistent with a wide variety of vie ...
, judicial independence, parliamentary supremacy, and an implied bill of rights. In one case, the Provincial Judges Reference (1997), a law was held invalid for contradicting an unwritten principle (in this case judicial independence).

Provincial constitutions

Unlike in most federations, Canadian provinces do not have written provincial constitutions. Provincial constitutions are instead a combination of
uncodified constitution An uncodified constitution is a type of constitution where the fundamental rules often take the form of customs, usage, precedent and a variety of statutes and legal instruments.Johari, J. C. (2006) ''New Comparative Government'', Lotus Press, ...
, provisions of the Constitution of Canada, and provincial statutes. Overall structures of provincial governments (like the legislature and cabinet) are described in parts of the Constitution of Canada. Governmental structure of the original four provinces are described in Part V of the ''Constitution Act, 1867''. The three colonies that joined Canada after Confederation had existing UK legislation which described their governmental structure, and this was affirmed in each colony's ''Terms of Union'', which now form part of Canada's Constitution. The remaining three provinces were created by federal statute. Their constitutional structures are described in those statutes, which now form part of Canada's Constitution. Section 45 of the ''Constitution Act, 1982'' allows each province to amend its own constitution. However, if the desired change would require an amendment to any documents that form part of the Constitution of Canada, it would require the consent of the federal government under section 43. This was done, for example, by the ''Constitution Amendment, 1998'', when Newfoundland asked the federal government to amend the ''Terms of Union of Newfoundland'' to allow it to end denominational quotas for religion classes. All provinces have enacted legislation that establishes other rules for the structure of government. For example, every province (and territory) has an act governing elections to the legislature, and another governing procedure in the legislature. Two provinces have explicitly listed such acts as being part of their provincial constitution; see '' Constitution of Quebec'' and ''Constitution Act'' (British Columbia). However, these acts do not, generally, supersede other legislation and do not require special procedures to amend, and so they function as regular statutes rather than constitutional statutes. There is, however, some provincial legislation that does supersede all other provincial legislation, as a constitution would. This is referred to as quasi-constitutionality. Quasi-constitutionality is often applied to human rights laws, allowing those laws to act as a ''de facto'' constitutional charter of rights. There are also a small number of statutes that cannot be amended by a simple majority of the legislative assembly. For example, section 7 of the ''Constitution of Alberta Amendment Act, 1990'' requires plebiscites of Metis settlement members before that Act can be amended. Courts have not yet ruled about whether this kind of language really would bind future legislatures, but it might do so if the higher bar was met when creating the law.

Vandalism of the proclamation paper

In 1983, Peter Greyson, an art student, entered Ottawa's National Archives (known today as
Library and Archives Canada Library and Archives Canada (LAC; french: Bibliothèque et Archives Canada) is the federal institution, tasked with acquiring, preserving, and providing accessibility to the documentary heritage of Canada. The national archive and library is t ...
) and poured red paint mixed with glue over a copy of the proclamation of the 1982 constitutional amendment. He said he was displeased with the federal government's decision to allow United States missile testing in Canada and had wanted to "graphically illustrate to Canadians" how wrong he believed the government to be. Greyson was charged with public mischief and sentenced to 89 days in jail, 100 hours of community work, and two years of probation. A grapefruit-sized stain remains on the original document; restoration specialists opted to leave most of the paint intact, fearing that removal attempts would only cause further damage.

See also

* Constitutionalism


Further reading

* * * *

External links

Full text of the Constitution

Canada in the Making
– a comprehensive history of the Canadian Constitution with digitized primary sources.
Fundamental Freedoms: The Charter of Rights and Freedoms
– Charter of Rights and Freedoms website with video, audio and the Charter in over 20 languages

* [http://www.cbc.ca/archives/categories/politics/the-constitution/canadas-constitutional-debate-what-makes-a-nation/topic---canadas-constitutional-debate-what-makes-a-nation.html CBC Digital Archives – Canada's Constitutional Debate: What Makes a Nation?]
OriginalDocuments.caConstitution of Canada
{{DEFAULTSORT:Constitution Of Canada Uncodified constitutions