The Constitution of Canada



Canada's Constitution

What is the Canadian Constitution?

When we talk about the Constitution of Canada, we are actually talking about a bunch of different legal documents that collectively make up the highest levels of Canadian law.

First we have the Constitution Act (1867), also known as the British North America Act that outlines Canada’s system of government, including the composition of Parliament, the manner of elections, the role of the monarchy and the division of powers between the federal government and the governments of the provinces.

Second, we have the Canadian Charter of Rights and Freedoms, which is an appendix to the Constitution Act that outlines the civil rights of each Canadian citizen.

Lastly, we have the amendments, which are the vast collection of modifications to the Canadian Constitution that have been passed since 1867. Some of these were passed by Britain as separate laws or royal decrees, while others were passed by Canada itself. These amendments actually make up the bulk of the Canadian Constitution, though they’re not as widely known as the Constitution Act or the Charter, in part because there’s just so many of them to keep track of.

A Brief History of the Canadian Constitution

Fathers of Confederation

The dozens of politicians from the various Canadian colonies who helped draft the first constitution of Canada are known as the "Fathers of Confederation."

As we learned in the history chapter, modern Canada was founded in 1867 when several 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.

However, the British North America Act was ultimately a British law, passed by the British Parliament. Changes to it could only be passed by Britain, when Britain thought it was appropriate. As Canada aged and became a more independent and self-confident nation, this state of affairs became seen as increasingly embarrassing, if not outright insulting.

In the early 1980s, the government of Prime Minister Pierre Trudeau (1919-2000) made it a top 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 โ€” now renamed the Constitution Act โ€” on Canadian soil remains one of the most iconic images of modern Canadian history.

Thatcher and Trudeau

Though she didn't much like the man, British Prime Minister Margaret Thatcher (1925-2013) was fully cooperative with Trudeau's efforts to "bring the Constitution home."

But there was another legacy as well. During the patriation process, the Supreme Court of Canada ruled that Trudeau could only change the BNA Act if he had the support of a “significant” number of provincial governments. Trudeau secured the support of nine out of 10, and in order to win them over he implemented a brand-new amending formula to the Constitution Act to the replace the old “ask Britain” model. From here on out, constitutional amendments could only be passed with the support of at least two-thirds of the provinces that add up to represent at least 50 per cent of the Canadian population. On a handful of really important matters, such as changing the amending formula itself, unanimous provincial consent would be required. Though well-meaning, this formula would proceed to cause a lot of headaches for Canada in the coming years, as we’ll discuss in more detail later.

The British North America Act / Constitution Act (1867)

Written in Victorian era legalese, the Constitution Act (1867) is a 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.

BNA Act

The first page of the BNA Act of 1867. As an article of British Law, the original copy remains stored in the London archives to this day.

We sometimes need to be reminded that in 1867, the drafters of the Constitution Act were not really 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, and 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 is “similar in principle to that of the United Kingdom.” Back in the day, all the Canadian politicians thought Britain had the best system of government in the world, so they didn’t feel the need to spend a lot of time explaining how the Canadian government would operate. Even today, most of the rules relating to the Canadian parliamentary system still aren’t written down anywhere, but are said to be determined by constitutional conventions that have arisen from centuries of British tradition. As is often the case when you have rules that aren’t written down, however, there’s frequently a lot of debate in modern Canada over what is and isn’t a “convention,” especially when a weird or unusual situation arises that doesn’t seem to have much precedent. This is one reason 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 Charter of Rights and Freedoms (1982)

Along with the patriation of the BNA Act, one of the big achievements of Prime Minister Trudeau was adding a Charter of Rights and Freedoms to the Canadian Constitution in 1982. This Charter outlines the inalienable, protected rights and freedoms enjoyed by all Canadian citizens and prevents any Canadian government, at any level, from passing a law that violates them.

The main Charter freedoms are:

Freedom of Speech
Freedom of Religion
Freedom of Thought
Freedom of Expression
Freedom of Mobility
Freedom of the Press
Freedom of the Person
Freedom of Association
Freedom of Assembly

And the main Charter rights are:

Right to vote
Right to run for office
Right to a fair trial
Right to speak French or English
Right to security
Right to privacy

It also guarantees that all Canadians must be given “equal benefit of the law without discrimination.” In particular, this means that citizens must be treated equally regardless of their:

Race
Country of origin
Gender
Religion
Age
Disability
Framed Charter

Today, framed copies of the Charter hang in government buildings, libraries and schools across Canada.

Though it’s now considered a cornerstone of Canadian freedom, the Charter was not a universally popular idea at the time. The loudest critics usually fretted about declining powers for Canada’s elected parliaments and legislatures in a post-Charter future, since the document’s definitive language greatly limited the sorts of laws that could be passed without having them declared unconstitutional by the courts. As a sop to this sentiment, the Charter does include a so-called notwithstanding clause (section 33) that allows the federal or provincial government to pass laws that violate the Charter so long as they’re temporary and don’t violate a certain group of super-protected rights. This privilege is almost never evoked, however.

There’s also lingering concern the Charter has given too much power to Canada’s courts, particularly the Supreme Court, since suing over Charter rights has become such a common thing in post-1982 Canada. Obviously, all laws limit our freedoms to some degree, but the Charter explicitly states that any limits must be “demonstrably justified in a free and democratic society.” It’s thus up to the courts to figure out when a law goes too far and stops being “demonstrably justified.” You can read more about this in the Canadian law chapter.

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

Amendments

The Constitution of Canada has been edited, revised and updated a ton of times since 1867, usually by the British government. Every time a new province joined Canada, for instance, or the borders of an existing one changed, the Constitution had to be amended. The same was true for other mundane matters, such as increasing a province’s seat count in the House of Commons, or more consequential policy matters, such as giving Canada the legal authority to implement unemployment insurance.

Since Canada gained control of the amending process in 1982, however, there have been very few amendments passed, mostly because the method of passing them is so complicated and difficult. Indeed, almost all of the post-1982 amendments concern only very minor matters, and most of them only required the approval of one province to pass, since they only affected one province in the first place โ€” one of the Constitution’s more notable loopholes.

The Troubles of the 1980s and 1990s

No article on the Constitution of Canada would be complete without at least some discussion of the Canadian constitutional turmoil of the eighties and nineties, and the reason why so many Canadians will cringe today if you say “let’s discuss fixing the Constitution!”

Though the patriation of 1982 was a proud moment for the country, 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 criticisms. Among them are the following:

  • 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 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.

And then there are other concerns such as enshrining an aboriginal right to self-governance, abolishing the monarchy, fixing election dates and so on and so forth.

Elijah Harper

The defeat of the Meech Lake Accord in 1990 is usually blamed on (or credited to) Elijah Harper (b. 1949), an NDP member of the Manitoba legislature. An Aboriginal-Canadian, Harper resented the fact that the Accord offered no significant concessions to the country's native peoples. By filibustering for several hours, Harper prevented his province from approving the amendments, which denied the unanimous provincial consent required to make them law.

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

The first effort came in 1987 in the form of 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 the other provincial governments the ability to veto future constitutional amendments, and mandated their involvement in the process of appointing Supreme Court justices. This package failed to get the 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, that promised many of the same things as Meech, but with even more new ideas tacked on. Charlottetown was put to a nation-wide referendum and failed badly. The Accord was so complicated that almost everyone could find at least something wrong with it, and its rejection was a stinging embarrassment for Mulroney, who stepped down shortly after.

In the aftermath of Mulroney’s resignation, “fixing the Constitution” quickly fell out of fashion as something Canadian politicians were even willing to talk about, let alone attempt. It’s now very much seen as a topic that tends to bring out the worst of Canada’s regional cleavages, particularly between Quebec and the rest of Canada, and thus not the sort of thing one should voluntarily bring up if one values the unity of the country.

Links About The Canadian Constitution:

Quick Facts:

  • The current Canadian Constitution was written in 1867, and has been repeatedly amended since then.
  • The "Charter of Rights" is a 1982 addition to the Constitution that outlines the civil rights of every Canadian citizen.
  • The Canadian Constitution can only be amended with the approval of the provincial governments.
  • After a series of botched amendments in the 1980s and 1990s, attempting to fix the Canadian Constitution has become a very unpopular topic in Canadian politics.