The Canadian Constitution1
What is a constitution?
A constitution is the set of rules that define the political principles, the institutions, the powers and the responsibilities of a State. A constitution can also comprise a charter of basic human rights.
In most States, the constitution is written, which is to say that these rules are codified, either in a single text (like the constitution of the United States of America) or in a number of constitutional enactments (like the Canadian constitution). The United Kingdom possesses a "customary" constitution and is one of those rare States whose constitution is a set of non-codified rules, based on statutes, case law and conventions.
The constitution is considered the supreme law of a state's legal system. It is more fundamental than any particular law, and contains the principles with which all legislation must accord.
The Canadian Constitution
The Canadian constitution is generally understood to comprise:
- the Constitution Act, 1867 - long known as the British North America Act or BNAA - provides for, among other things:
- "the Province2 of Canada, Nova Scotia and New Brunswick to be federally united into one Dominion under the name of Canada", originally made up of four provinces (Introduction, s. 3, 4);
- representation of the provinces and territories in the Senate (s. 21 et al) and the House of Commons (s. 37);
- distribution of powers between the Parliament of Canada and the provincial legislatures (sections 91, 92, 93, inter alia);
- applicable civil and criminal law (s.129);
- use of French and English (s.133);
- admission of Britain's other North American possessions (s.146);
- the Constitution Act, 1982, made up of 7 parts, including:
- Part I, the Canadian Charter of Rights and Freedoms;
- Part II, which sets out the rights of Aboriginal peoples;
- Part III, which deals with equalization;
- Part V, which sets out the procedure for amending the Constitution.
But the Canadian constitution is more than just these two statutes. Section 52 of the Constitution Act, 1982 stipulates that the 30 or so legislative texts and orders referred to in its schedule are also part of Canada's constitution. These texts are amendments brought to the Constitution Act, 1867, prior to the 1982 patriation, by the Parliament of the United Kingdom or by the Parliament of Canada and legislatures of the provinces when provisions allowed for such amendments. They include provisions on the following:
- provinces and territories admitted or constituted after 1867;
- amendments to the distribution of powers between the Parliament of Canada and the provincial legislatures.
The Canadian Constitution evolves constantly. Since 1982, it has been amended on many occasions and this, following the amendment procedure set in the Constitution Act, 1982. These amendments are also part of the Constitution.
The Canadian constitution also includes various customary rules that are not found in any legislative text: this is the case, for instance, with regards to the duties of the Prime Minister of Canada.
- Constitution Amendment Proclamation, 1983 - This was a multilateral amendment under the 7/50 formula, that concerned Aboriginal rights.
- Constitution Amendment, 1987 (Newfoundland Act) - Entrenched the denominational school rights of the Pentecostal Assemblies of Newfoundland.
- Constitution Amendment, 1993 (New Brunswick) - Established the equality of the English-speaking and French-speaking communities in New Brunswick.
- Constitution Amendment, 1994 (Prince Edward Island) - Relieved Canada of the obligation to provide ferry service to Prince Edward Island upon completion of the Confederation Bridge.
- Constitution Amendment, 1997 (Quebec) - Permitted Quebec school boards to be restructured on linguistic lines, rather than on a denominational basis.
- Constitution Amendment Proclamation, 1997 (Newfoundland Act) - Allowed the Province to create a secular school system.
- Constitution Amendment Proclamation, 1998 (Newfoundland) - Allowed the province to abolish the denominational school system.
- Constitution Amendment, 2001 (Newfoundland and Labrador) - Amended Newfoundland's Terms of Union to change the Province's name to "Newfoundland and Labrador".