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The Canadian Constitution dates back to well before Confederation. But in 1867, the British Parliament passed the British North America Act, the founding document of Canada as an independent nation. Drafted by Canadians who became known as the Fathers of Confederation, the document stated that "The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in The Queen". |
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In 1982, the Canadian Parliament passed the Constitution Act, 1982, which provided, for the first time in our country's history, a way of amending or changing the Constitution without having to obtain the approval of the British Parliament each time a change was required. This patriation or "bringing home" of the Canadian Constitution did not alter The Queen's status in Canada as Head of State. Her personal representative in Canada remains the Governor General, whose powers and authorities are detailed in the "Letters Patent Constituting the Office of the Governor General of Canada" (October 1, 1947).
Purposes of the Constitution of CanadaThese are the main things the written constitution did as it stood at the end of 1981. They provided the legal framework within which we could, and did, adapt, adjust, manoeuvre, innovate, compromise, and arrange, by what Prime Minister Sir Robert Borden called "the exercise of the commonplace quality of common sense."
Second, it gave the national Parliament power to create new provinces out of the territories, and also the power to change provincial boundaries with the consent of the provinces concerned. See the Territorial Evolution of Canada page for more information on this topic. Third, it set out the power of Parliament and of the provincial legislatures. See the Government page for more information on this topic. Fourth, it vested the formal executive power in the Queen, and created the Queen's Privy Council for Canada (the legal basis for the federal Cabinet). See the Privy Council page for more information on this topic. Fifth, it gave Parliament power to set up a Supreme Court of Canada (which it did, in 1875). See the Supreme Court page for more information on this topic. Sixth, it guaranteed certain limited rights equally to the English and French languages in the federal Parliament and courts and in the legislatures and courts of Quebec and Manitoba. Seventh, it guaranteed separate schools for the Protestant and Roman Catholic minorities in Quebec and Ontario. It also guaranteed separate schools in any other province where they existed by law in 1867, or were set up by any provincial law after 1867. There were special provisions for Manitoba (created in 1870), which proved ineffective; more limited guarantees for Alberta and Saskatchewan (created in 1905); and for Newfoundland (which came into Confederation in 1949), a guarantee of separate schools for a variety of Christian denominations. Eighth, it guaranteed Quebec's distinctive civil law. Ninth, it gave Parliament power to assume the jurisdiction over property and civil rights, or any part of such jurisdiction, in other provinces, provided the provincial legislatures consented. This power has never been used. Tenth, it prohibited provincial tariffs. Eleventh, it gave the provincial legislatures the power to amend the provincial constitutions, except as regards the office of Lieutenant-Governor. Twelfth, it gave the national government (the Governor-in-Council, that is, the federal Cabinet) certain controls over the provinces: appointment, instruction and dismissal of Lieutenant-Governors (two have been dismissed); disallowance of provincial Acts within one year after their passing (112 have been disallowed - the last in 1943 - from every province except Prince Edward Island and Newfoundland); power of Lieutenant-Governors to send provincial bills to Ottawa unassented to (in which case they do not go into effect unless the central executive assents within one year; of 70 such bills, the last in 1961, from every province but Newfoundland, only 14 have gone into effect). Changes Made with the Constitution Act, 1982I - It established four legal formulas or processes for amending the constitution. Until 1982, there had never been any legal amending formula (except for a narrowly limited power given to the national Parliament in 1949, a power now superseded).II - The second big change made by the Constitution Act, 1982, is that the first three amending formulas "entrench" certain parts of the written constitution, that is, place them beyond the power of Parliament or any provincial legislature to touch. III - Third, the new Constitution Act sets out the Canadian Charter of Rights and Freedoms that neither Parliament nor any provincial legislature acting alone can change. Any such changes come under the second formula (or, where they apply only to one or more, but not all, provinces, the third formula).
The equality rights came into force on April 17, 1985, three years after the time of patriation of our constitution. (This gave time for revision of the multitude of federal, provincial, and territorial laws that may have required amendment or repeal.) The fundamental, legal and equality rights in the Charter are subject to a "notwithstanding" clause. This allows Parliament or a provincial legislature to pass a law violating any of these rights (except the equality right that prohibits discrimination based on sex) simply by inserting in such law a declaration that it shall operate notwithstanding the fact that it is contrary to this or that provision of the Charter. Any such law can last only five years, but it can be re-enacted for further periods of five years. Any such legislation must apply equally to men and women. IV - The fourth big change made by the Constitution Act, 1982, gives the provinces wide powers over their natural resources. Each province will now be able to control the export, to any other part of Canada, of the primary production from its mines, oil wells, gas wells, forests and electric power plants, provided it does not discriminate against other parts of Canada in prices or supplies. But the national Parliament will still be able to legislate on these matters, and if provincial and federal laws conflict, the federal will prevail. The provinces will also be able to levy indirect taxes on their mines, oil wells, gas wells, forests and electric power plants and primary production from these sources. But such taxes must be the same for products exported to other parts of Canada and products not so exported. Constitutional DocumentsThere is a widespread impression that the Constitution Act, 1982, gave us a "new" constitution. It did not. In fact, that Act itself says that "the Constitution of Canada includes" fourteen Acts of the Parliament of the United Kingdom, seven Acts of the Parliament of Canada, and four United Kingdom orders-in-council (giving Canada the original Northwest Territories and the Arctic Islands, and admitting British Columbia and Prince Edward Island to Confederation). Several of the Acts got new names; two, the old British North America Act, 1867 (now the Constitution Act, 1867), and the Manitoba Act, 1870, suffered a few minor deletions. The part of the United Kingdom Statute of Westminster that is included had minor amendments. The rest, apart from changes of name, are untouched. What we have now is not a new constitution but the old one with a very few small deletions and four immensely important additions; in an old English slang phrase, the old constitution with knobs on.
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