[extracted from the Canadian Embassy, Washington DC web-page]

A constitution provides the essential framework for orderly government and for relations between people and their government.

Canada's Constitution is not a single document as in the United States. It is made up of acts of the British and Canadian Parliaments, as well as legislation, judicial decisions and agreements between the federal and provincial governments.

It also includes unwritten elements such as British constitutional conventions, established custom, tradition and precedent. Responsible government, for example, in which the Cabinet is collectively responsible to the elected House of Commons and must resign if it loses a vote of confidence, is a fundamental, but unwritten, element of Canadian parliamentary democracy at the federal and provincial levels.

The Constitution's basic written foundations are the Constitution Act, 1867, which created a federation of four provinces Ontario, Quebec, Nova Scotia and New Brunswick under the British Crown, and the Constitution Act, 1982, which transferred formal control over the Constitution from Britain to Canada and entrenched a Canadian Charter of Rights and Freedoms and procedures for constitutional amendment.

The Constitution Act, 1867

The Constitution Act, 1867 (formerly known as the British North America Act) contains the fundamental distribution of powers between the federal and provincial governments.

The founders of Canada were determined to create a strong central government while, at the same time, assigning substantive powers to provincial legislatures that would enable them to maintain their identity, culture and institutions. They gave the federal Parliament jurisdiction over defence and foreign policy, trade, transportation, communications and Indians and Indian lands. Parliament was also granted certain extraordinary powers, such as the broad authority "to make laws for the peace, order and good government of Canada," the right to disallow provincial legislation, and to declare local undertakings to be for the general advantage and thus to fall under federal jurisdiction (for example, the regulation of sales of alcohol or firearms).

In a deliberate departure from the U.S. model, the Fathers of Confederation awarded to the federal Parliament the residual power, i.e., jurisdiction over all areas not specifically assigned to the provincial legislatures. (The 10th Amendment to the U.S. Constitution reserves to the states or to the people all powers not specifically enumerated.) The federal government was also provided with unlimited taxing powers while the provinces were restricted to direct taxes within the province.

The provincial legislatures were given authority over education, hospitals, property, civil rights, natural resources and other "local works and undertakings." Jurisdiction over two areas, immigration and agriculture, was divided between the two levels of government.

The basic distribution has been formally amended only four times since 1867: amendments in 1940, 1951 and 1964 gave the federal government responsibility for unemployment insurance, old age pensions and supplementary benefits; and the Constitution Act, 1982 strengthened provincial control over natural resources and affirmed other protections, such as for Canada's Aboriginal peoples and for regional development. The balance of power has shifted back and forth, however, through a combination of judicial decisions, circumstances and political compromise.

The Judicial Committee of the Privy Council of Great Britain was the court of final appeal for Canada until 1949 when full authority was transferred to the Supreme Court of Canada. It rendered some 120 decisions on the distribution of legislative powers and established the fundamental principle that the provinces and the federal government are sovereign in their areas of jurisdiction. In general, the Committee contributed to the decentralization of the Canadian federation through its broad interpretation of provincial powers, particularly over property and civil rights, and its relatively narrow reading of the principal federal powers. (In contrast, the U.S. judiciary played a significant role in centralizing power under the federal government through its broad interpretation of federal jurisdiction over interstate commerce.)

The Constitution Act, 1867 contains specific provisions designed to protect the distinctiveness of Quebec. It recognizes Quebec's civil code as distinct from the English common law in effect in the other provinces, and provides for the use of English and French in Parliament and the Quebec legislature and courts, and for publicly-funded separate schools for Protestant and Catholic minorities in Quebec and Ontario (and later in Manitoba, Saskatchewan and Alberta).


After Confederation Canada gradually assumed more autonomy over its own affairs until its independent status (and that of the other self-governing dominions) was recognized in the Balfour Report of 1926. Beginning in 1927, discussions were held about patriating Canada's Constitution -- transferring amending authority from the British Parliament to Canada -- but governments couldn't agree on constitutional amending procedures. Consequently, when Canada officially ceased to be a British colony with passage of the Statute of Westminster in 1931, authority to amend the Constitution remained with the British Parliament. In 1949 the Canadian Parliament was given a limited amending power in areas that did not concern provincial jurisdiction. Despite many discussions and several formal conferences, agreement on a comprehensive set of amending procedures proved elusive for more than 30 years.

In November 1981, after intensive negotiations at a First Ministers' conference, the federal government and all the provincial governments except the Parti Québécois government of Quebec, agreed on a package of constitutional amendments. The agreement did not alter the fundamental distribution of powers but included a comprehensive amending formula, a Canadian Charter of Rights and Freedoms, entrenchment of the principle of equalization payments to the poorer provinces, and a strengthening of the provinces' control over natural resources.

Despite support for the agreement by a large majority of Quebec representatives in the federal Parliament, the Quebec National Assembly rejected it on the grounds that the Charter limited the Assembly's legislative powers without its consent. The Quebec government objected to two clauses in the Charter: the provision for minority language education rights, which conflicted with restrictions on English schooling in the province's French language charter; and the mobility clause guaranteeing Canadians freedom to live and work anywhere in Canada, which could affect the province's ability to set labour policies favouring the employment of Quebecers. The Quebec government also objected to the amending formula, which offered financial compensation to provinces that opted out of constitutional amendments only on educational and other cultural matters. The Constitution was patriated on April 17, 1982, without the consent of the Quebec legislature, but the Supreme Court of Canada subsequently ruled that the patriation process had respected Canada's laws and conventions, and that the Constitution, including the Constitution Act, 1982, was in force throughout Canada.

The Canadian Charter of Rights and Freedoms

Canada entrenched its charter of rights more than a century after the country was founded. (In contrast, the U.S. Bill of Rights was added as the first 10 amendments to the U.S. Constitution within two years of its ratification, in 1791.)

Canada's Constitution Act, 1867 did not include a bill of rights because it was assumed that the unwritten conventions inherited from Britain provided effective protection for civil liberties. In 1960, Parliament passed a bill of rights, but it applied only to federal institutions and did not have constitutional weight.

The Canadian Charter of Rights and Freedoms guarantees some of the same rights, called "fundamental freedoms," that are protected in the U.S. Bill of Rights: freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press; freedom of peaceful assembly; and freedom of association. It guarantees legal rights, such as the presumption of innocence; the right to life, liberty, and security of the person; and security against unreasonable search and seizure. The first section of the Charter states that its guarantees are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society," a qualification not found in the U.S. Constitution.

The Charter guarantees democratic rights such as the right to vote; mobility rights, such as the right to take up residence in any province; and equal protection under the law for all Canadians (while specifically permitting affirmative action programs). It includes language provisions that are particularly Canadian: it establishes English and French as official languages and guarantees certain minority language education rights.

Inclusion of the Charter in the Constitution marked a departure from the principle of parliamentary supremacy and an expansion of the role of the courts as federal and provincial laws must now conform to the Charter as well as to the division of powers. However, the Charter includes a "notwithstanding" clause that permits Parliament or a provincial legislature to pass legislation which violates certain of these rights by inserting in the law a declaration that it shall operate "notwithstanding" a certain provision of the Charter, for up to five years. This clause has been invoked by the Quebec and Saskatchewan legislatures.

The Amending Formula

Under the amending formula adopted in 1982, some constitutional changes must have the consent of Parliament and at least two-thirds of the provincial legislatures representing at least 50 per cent of the population. Some amendments, including those that affect the office of the Queen or her representatives in Canada, the use of English and French at the national level or the amending formula itself, require the unanimous consent of Parliament and the 10 provincial legislative assemblies. The formula allows a provincial legislature to opt out of an amendment that takes away any of its powers, rights and privileges.

Developments Since 1982

The Constitution Act, 1982 recognized and affirmed the Aboriginal and treaty rights of Canada's Aboriginal people, who were defined as including Indians, Inuit and Métis (those of mixed ancestry). In 1983, the Act was amended to include rights that exist or might be acquired through land claims agreements and to state explicitly that Aboriginal rights are guaranteed equally for both men and women.

There have been two major attempts since 1982 to satisfy the constitutional concerns of Quebec and others. The "Meech Lake Accord," signed in 1987 by Prime Minister Brian Mulroney and all 10 provincial premiers, would have entrenched recognition of Quebec as a distinct society in the main body of the Constitution. It also would have restricted the use of the federal spending power by giving the provinces the right to opt out of any shared-cost programs with compensation in areas of provincial jurisdiction, clarified provincial power over immigration, entrenched the requirement that three of Canada's nine Supreme Court judges be appointed from the Quebec civil bar and changed the amending formula to require unanimous consent for certain institutional changes. The legislative assemblies of Manitoba and Newfoundland failed to ratify the accord within the three-year deadline and it lapsed.

The package of constitutional reforms known as the "Charlottetown Accord" was negotiated in 1992. In addition to recognizing Quebec's distinct society in the preamble of the Constitution and guaranteeing that province 25 per cent of the seats in the House of Commons, it would have addressed a broad range of other issues. These included redistribution of federal-provincial powers, Aboriginal self-government, Senate reform and increased representation for Ontario and British Columbia in the House of Commons. This agreement was defeated in a national referendum. Following the narrow defeat of the sovereignty option in the October 1995 referendum in Quebec, Parliament passed a resolution recognizing Quebec's distinct society as well as legislation effectively giving Quebec and four other regions of Canada (Ontario, the Atlantic provinces, British Columbia and the Prairie provinces) a veto over constitutional change. The federal government also announced it would withdraw from the administration of labour market training in favour of the provinces.


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