The Constitution of Canada

What is the Canadian Constitution?

When we talk about the Constitution of Canada, we’re not talking about a single document, but rather a bunch of different ones that collectively make up the highest levels of Canadian law.

The most important of these is the Constitution Act of 1867, also known as the British North America Act, which outlines Canada’s system of government, including the structure of Parliament, the way elections work, the role of the monarchy and the division of powers between the federal government and the provinces.

Second is the Constitution Act of 1982, which is mostly dominated by a long section called the Canadian Charter of Rights and Freedoms, which outlines the civil rights of each Canadian citizen. The 1982 Act also describes the process for changing (amending) constitutional laws.

Lastly, we have everything else, which is to say the various other generally lesser-known pieces of legislation that regulate things deemed to be “constitutional” matters — that is, something that affect the fundamental institutions of the Canadian government — such as laws that regulate the Governor General, the Supreme Court, and the provincial parliaments. Treaties with the aboriginal peoples of Canada also have the force of constitutional law.

History of the Canadian Constitution

Modern Canada was founded in 1867 when four British colonies in North America decided to unite and form a single, self-governing confederation under the British Crown. The document that outlined the structure of this confederation was known as the British North America Act, and it provided Canada with a workable political system for nearly 120 years.

The British North America Act was ultimately a British law, however, and as such could only be modified by the British parliament when Britain felt like it. From time to time, the Canadian prime minister would ask the British government for changes and they’d usually be made, but as Canada aged and became a more powerful and self-confident nation this state of affairs became increasingly awkward and embarrassing.

In the early 1980s, the government of Prime Minister Pierre Elliott Trudeau (1919-2000) made it a priority to “bring home,” or patriate, the BNA Act, and turn it into a wholly Canadian law that could only be modified by the government of Canada. This goal was achieved in 1982, and the sight of Trudeau and Queen Elizabeth II (b. 1926) signing the patriated BNA Act — now renamed the Constitution Act — on Canadian soil remains one of the most iconic images of modern Canadian history.

Prime Minister Trudeau and Britain's Elizabeth II sign the Constitution Act on April 17, 1982.

The British North America Act / Constitution Act, 1867

Written in Victorian legalese, the Constitution Act, 1867 — which is the post-1982 name for the British North America Act — is not an easy thing to read, nor does it say a lot of things you might expect. Though it’s the document that spells out Canada’s system of government, it doesn’t mention how the parliamentary system works, how the prime minister is chosen, how the bureaucracy is organized or other seemingly important matters.

The reasons why are perhaps best explained in the Act’s preamble:

WHEREAS the provinces of Canada, Nova Scotia and New Brunswick have expressed their desire to be federally united into one dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom; and whereas such a union would conduce to the welfare of the provinces and promote the interests of the British Empire...

Preamble to the Constitution Act, 1867

It’s important to understand that back in 1867 the authors of the Constitution Act did not really think of themselves as creating a new country, but rather outlining the terms of union between four existing British colonies. It’s from this perspective that the bulk of the Constitution Act is written, which explains why the majority of the document focuses on clarifying the different powers of the federal and provincial governments, rather than the style of those governments themselves.

The other key phrase of the preamble is “similar in principle to that of the United Kingdom.” The British government has always been run more by tradition and custom than clear, explicit rules, and this is also the case with Canada. Even today, most of the rules governing the Canadian parliamentary system still aren’t written down, but are said to be determined by constitutional conventions that have arisen from centuries of British tradition. As is often the case when rules aren’t written down, however, there’s always a lot of debate in modern Canada over what is and isn’t a “convention,” especially when an unexpected or unusual situation arises that doesn’t seem to have much precedent. This is why it can be a good thing to be a professor of political science in Canada; you’ll often be summoned by the media and politicians to help interpret a tricky situation when the Constitution itself isn’t much help.

The Canadian Charter of Rights and Freedoms

Along with the patriation of the BNA Act, one of the crowning achievements of Prime Minister Pierre Trudeau was adding a Charter of Rights and Freedoms to the Canadian Constitution. This Charter outlines the inalienable, protected human rights, liberties, and freedoms enjoyed by all Canadian citizens and prevents any Canadian government, at any level, from passing a law that violates them.

The five Charter freedoms (Section 2):

Freedom of conscience and religion

Section 2 (a)

The freedom to practice any religion and participate in its rituals, as well avoid activities that violate one's religious beliefs.

Freedom of thought, belief, opinion and expression

Section 2 (b)

The freedom to speak or think ideas relating to any perspective on any topic.

Freedom of the press and other media of communication

Section 2 (b)

The freedom to print, publish, and distribute ideas in newspapers, magazines, books, television shows, the internet, and more.

Freedom of peaceful assembly

Section 2 (c)

The freedom for groups of people to assemble for the purposes of meetings, protests, and other public and private gatherings.

Freedom of association

Section 2 (d)

The freedom to belong to organized groups, or have associations with groups and peoples of your choice.

The six main Charter rights:

Democratic Rights

Sections 3-5

The right to vote and run for office.

Mobility Rights

Section 6

The right to enter and leave Canada, and live and work anywhere in Canada.

Legal Rights

Sections 7-14

Basic right to liberty, right to be informed of charges when arrested, to be tried quickly and fairly, and be protected from arbitrary or cruel punishment.

Equality Rights

Section 15

The right to equal treatment regardless of "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

Official Language Rights

Sections 16-22

The right to receive government services in either English or French.

Language Education Rights

Section 23

The right to have one's children educated in the language of their parents.

How the Charter Works

Canada’s courts, particularly the Supreme Court, have become more powerful in the aftermath of the Charter, and it is now common for Canadians to sue governments over laws and policies that they claim violate their Charter rights.

Obviously, all laws limit rights and freedoms to some degree, but the Charter explicitly states that these limits must be “demonstrably justified in a free and democratic society.” It’s thus up to the courts to figure out when a law stops being a “demonstrably justified” limit on a freedom and starts being a violation of that freedom. Section 24 of the Charter gives courts the power to overturn laws that violate the Charter, and in recent decades, Canadian courts have overturned all sorts of laws as unjustified and unconstitutional, including limitations on abortion, laws criminalizing prostitution, and long mandatory prison sentences for convicted criminals — among others.

It’s worth noting that the violation of a Canadian’s human rights by a private entity, such as a business with discriminatory hiring practices, would not be considered a Charter matter, since the Charter only regulates the government and government employees. The Canadian Human Rights Act regulates actions between private individuals, with violations adjudicated by the Canadian Human Rights Commission, not the Canadian court system.

Other Constitutional Laws

Many other laws passed by Britain or Canada since 1867 hold the status of constitutional law, though these tend to be largely unknown to anyone who isn’t a constitutional scholar. The laws Britain passed every time a new province joined Canada, for instance, are considered constitutional laws, as are a few special laws regulating the office of the Governor General, the House of Commons, and the Supreme Court. The Constitution Act gives special protections to Indian treaties, which means those have the force of constitutional law as well.

What separates a normal law from a constitutional law? Well, Part V of the Constitution Act, 1982 contains a list of subjects which can only be changed using the constitutional amending formula. If a law affects one of those things, it’s part of the constitution.

Changing the Canadian Constitution

As mentioned, the pre-1982 system for changing the Canadian constitution was to ask the British Parliament to pass a constitutional amendment. After the constitution was patriated — made an entirely Canadian law — a complicated new system for changing the constitution was introduced, known as the amending formula. Under this system, (described in Part V of the Constitution Act, 1982) there are different rules for passing different kinds of amendments.

An amendment that only “applies to one or more, but not all, provinces” requires approval from the Canadian parliament and the governments of any affected provinces. An amendment that affects all provinces, by contrast, requires the approval of at leasts seven of the provincial governments representing at least 50 per cent of the Canadian population (sometimes called the 7-50 formula). On a handful of really important matters, such as changing the amending formula itself, unanimous provincial consent is necessary.

The very high bar for passing substantial amendments is probably the main reason Canada’s Constitution has not been significantly modified since 1982, though there have been a few, small provincial amendments passed (see top left sidebar).

The Troubles of the 1980s and 90s

Though the patriation of 1982 was a proud moment for Canada, and the Charter an important addition, the BNA Act/Constitution Act was not significantly reformed during the process of “bringing it home.” And the Constitution Act has always faced a lot of criticism, including:

  • Canada’s Senate is undemocratic and unrepresentative, and needs to be changed,
  • Quebec’s status as a fundamentally “unique” part of Canada needs to be acknowledged, and Quebec needs to be given special powers to protect its culture and language,
  • The secretive process of appointing judges to the Supreme Court of Canada needs to be changed,
  • Seats in the House of Commons need to be more fairly distributed,
  • Depending on your perspective, either the federal government or the provincial governments need more powers.

When Brian Mulroney (b. 1939) was elected prime minister of Canada in 1984, he twice tried to substantially change the Constitution to address some of these concerns, and twice failed.

The first effort came in 1987 with the Meech Lake Accord. Among other things, this package of amendments would have given Quebec the legal status of a “distinct society” within Canada, given provincial governments the ability to veto future constitutional amendments, and mandated provincial involvement in the process of appointing Supreme Court justices. This package was rejected after it failed to get unanimous consent of all provinces, but never one to be discouraged easily, in 1992 Mulroney proposed another even more ambitious package of amendments, known as the Charlottetown Accord. It promised many of the same things as Meech, but with many ambitious new ideas as well. On October 26, 1992 Charlottetown was put to a nation-wide referendum and was voted down, 54 to 46 per cent. The Accord was so complicated that almost everyone could find something wrong with it, and its rejection was a stinging rebuke to Mulroney, who resigned shortly after.

In the aftermath of Mulroney’s resignation, “fixing the Constitution” quickly fell out of fashion as something Canadian politicians were willing to talk about, let alone attempt. Today, it continues to be seen as a very divisive topic with high potential to exacerbate Canada’s regional cleavages, particularly between Quebec and the rest of Canada.