Canada's Constitutional Documents

The Constitution Act, 1982

The Constitution Act, 1982 (Schedule B of the Canada Act 1982 (U.K.)) is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution. The Constitution Act, 1982 introduced several amendments to the British North America Act, 1867 and changed its name in Canada to the Constitution Act, 1867.

The Canadian Charter of Rights and Freedoms forms the first thirty-five sections (counting section 16.1) of the Constitution Act, 1982. It will be discussed separately here.

Aboriginal Rights clause

Section 35 of the Constitution Act, 1982 "recognizes and affirms" the "existing" aboriginal and treaty rights in Canada. These aboriginal rights protect the activities, practice, or traditions that are integral to the distinctive culture of the aboriginal peoples. The treaty rights protect and enforce agreements in between the crown and the aboriginal peoples. Section 35 also provides protection of aboriginal title which protects the use of land for traditional practices. These rights extend to people who make up the Indian, Inuit, and Métis peoples.

Other sections of the Constitution Act, 1982 that address aboriginal rights include section 25 of the Charter and section 35.1, which sets expectations for aboriginal participation in the amendment of relevant constitutional provisions.

Equalization and equal opportunity

Section 36 enshrines in the Constitution a value on equal opportunity for the Canadian people, economic development to support that equality, and government services available for public consumption. Subsection 2 goes further in recognizing a "principle" that the federal government should ensure equalization payments.

Some scholars have expressed scepticism as to whether the courts could interpret and enforce this provision, noting its political and moral, rather than legal character. Other scholars have noted section 36 is too vague. Since the courts would not be of much use in interpreting the section, the section was nearly amended in 1992 with the Charlottetown Accord to make it enforceable. The Accord never came into effect.

Amending the Constitution

Section 52(3) of the Constitution Act, 1982 says that constitutional amendments can only be made in accordance with the rules laid out in the Constitution itself. The purpose of this section was to entrench constitutional supremacy and remove the ability of legislators to amend the constitution using simple legislation.

The rules for amending Canada's constitution are quite dense. They are laid out in Part V of the Constitution Act, 1982.

There are five different amendment formulae, each applicable to different types of amendments. These five formula are:

1. The General Formula (the "7/50" procedure) - s. 38. The amendment must be passed by the House of Commons, the Senate, and at least two-thirds of the provincial legislatures representing at least 50% of the population. This covers any amendment procedure not covered more specifically in ss. 41, 43, 44 or 45. The general formula must be used for any of the six situations identified in s. 42.
2. The Unanimity Procedure - s. 41. The amendment must be passed by the House of Commons, Senate, and all provincial legislatures.
3. "Some-but-not-all Provinces" (or "bilateral" procedure) - s. 43. The amendment must be passed by the House of Commons, the Senate, and the legislative assemblies of those provinces that are affected by the amendment.
4. Federal Parliament Alone (or "federal unilateral" procedure) - s. 44. The amendment must only be passed by the House of Commons and the Senate.
5. Provincial Legislature Alone (or "provincial unilateral" procedure) - s. 45. The amendment must only be passed by the provincial legislature.

Various other sections of Part V lay out such things as compensation for opting out, when and how a province may opt out of a constitutional amendment, and time limits for achieving a constitutional amendment.

Supremacy clause

According to Section 52 of the Constitution Act, 1982, the Constitution of Canada is the "supreme law of Canada", and any law inconsistent with it is of no force or effect. This gives Canadian courts the power to strike down legislation. Though the laws will remain in the books until they are amended, after being struck down they cannot be enforced.

Before this provision, the British North America Act was the supreme law of Canada by virtue of s.4 of the Colonial Laws Validity Act, a British Imperial statute declaring that no colonial laws that violated an Imperial statute was valid. Since the British North America Act was an Imperial statute, any Canadian law violating the BNA Act was inoperative. There was no express provision giving the courts the power to decide that Canadian law violated the BNA Act and was therefore inoperative; up until 1982, that Court power was part of Canada's unwritten constitution.

Definition of the Constitution

Section 52(2) of the Constitution Act, 1982 defines the "Constitution of Canada". The Constitution of Canada is said to include:

• the Canada Act 1982 (which includes the Constitution Act, 1982 in Schedule B),
• 30 Acts and Orders contained in the Schedule to the Constitution Act, 1982, and
• any amendments which may have been made to any of the instruments in the first two categories.

Section 52(2), in addition to containing many Imperial Statutes, contains eight Canadian statutes, three of which created provinces, and five of which were amendments to the Constitution Act, 1867.

The Canadian courts have reserved the right to add and entrench principles and conventions into the Constitution unilaterally. Although a court's ability to recognize human rights not explicitly stated in a constitution is not particularly unusual, the Canadian situation is unique in that this ability extends to procedural issues not related to human rights.

In particular, in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), the Supreme Court of Canada said that s. 52(2) was not an exhaustive listing of all that comprised the Constitution. The Court reserved the right to add unwritten principles to the Constitution, thereby entrenching them and granting them constitutional supremacy (in this case, they added parliamentary privilege to the Constitution). The Court did note, however, that the list of written documents was stagnant and could not be modified except for through the amending formulae.