Constitution Act, 1982
Encyclopedia
The Constitution Act, 1982 (Schedule B of the Canada Act 1982
Canada Act 1982
The Canada Act 1982 is an Act of the Parliament of the United Kingdom that was passed at the request of the Canadian federal government to "patriate" Canada's constitution, ending the necessity for the country to request certain types of amendment to the Constitution of Canada to be made by the...

 (UK
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

)) is a part of the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...

. The Act was introduced as part of Canada's process of "patriating
Patriation
Patriation is a non-legal term used in Canada to describe a process of constitutional change also known as "homecoming" of the constitution. Up until 1982, Canada was governed by a constitution that was a British law and could be changed only by an Act of the British Parliament...

" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...

. Elizabeth II
Elizabeth II of the United Kingdom
Elizabeth II is the constitutional monarch of 16 sovereign states known as the Commonwealth realms: the United Kingdom, Canada, Australia, New Zealand, Jamaica, Barbados, the Bahamas, Grenada, Papua New Guinea, the Solomon Islands, Tuvalu, Saint Lucia, Saint Vincent and the Grenadines, Belize,...

 as Queen of Canada brought the act into effect with a proclamation she signed in Ottawa
Ottawa
Ottawa is the capital of Canada, the second largest city in the Province of Ontario, and the fourth largest city in the country. The city is located on the south bank of the Ottawa River in the eastern portion of Southern Ontario...

 on April 17, 1982.

The Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

 forms the first thirty-five sections (counting section 16.1
Section Sixteen One of the Canadian Charter of Rights and Freedoms
Section 16.1 of the Canadian Charter of Rights and Freedoms is the newest section of the Charter. It was enacted by the Constitution Amendment, 1993 and guarantees equality between English-speaking and French-speaking New Brunswickers.Section 16.1 is not to be confused with subsection 16 , which...

, and not counting section 35
Section Thirty-five of the Constitution Act, 1982
Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...

) of the Constitution Act, 1982.

As of 2011, the Government of Quebec
Government of Quebec
The Government of Quebec refers to the provincial government of the province of Quebec. Its powers and structure are set out in the Constitution Act, 1867....

 has never formally approved of the enactment of the Act, though formal consent was never necessary. The Meech Lake
Meech Lake Accord
The Meech Lake Accord was a package of proposed amendments to the Constitution of Canada negotiated in 1987 by Prime Minister Brian Mulroney and ten provincial premiers. It was intended to persuade the government of the Province of Quebec to endorse the 1982 Canadian Constitution and increase...

 and Charlottetown
Charlottetown Accord
The Charlottetown Accord was a package of proposed amendments to the Constitution of Canada, proposed by the Canadian federal and provincial governments in 1992. It was submitted to a public referendum on October 26 of that year, and was defeated.-Background:...

 Accords were designed to secure approval from Quebec, but both efforts failed to do so.

Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is a bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...

. The Charter is intended to protect certain political and civil rights of people in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

 from the policies and actions of all levels of government. It is also supposed to unify Canadians around a set of principles that embody those rights. The Charter was preceded by the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...

, which was introduced by the government of John Diefenbaker
John Diefenbaker
John George Diefenbaker, PC, CH, QC was the 13th Prime Minister of Canada, serving from June 21, 1957, to April 22, 1963...

 in 1960. However, the Bill of Rights was only a federal statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

, rather than a constitutional document. Therefore, it was limited in scope and was easily amendable. This motivated some within government to improve rights protections in Canada. The movement for human rights and freedoms that emerged after World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...

 also wanted to entrench the principles enunciated in the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...

. Hence, the government of Prime Minister
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...

 Pierre Trudeau
Pierre Trudeau
Joseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...

 enacted the Charter in 1982.

One of the most notable effects of the adoption of the Charter was to greatly expand the range of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Bill of Rights. The courts
Court system of Canada
The court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial or territorial....

, when confronted with violations of Charter rights, have struck down unconstitutional statutes or parts of statutes, as they did when Canadian case law was primarily concerned with resolving issues of federalism
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...

. However, the Charter granted new powers to the courts to enforce more creative remedies and to exclude more evidence in trials. These powers are greater than what was typical under the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 and under a system of government that, influenced by Canada's mother country the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

, was based upon Parliamentary supremacy.

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 whom 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
Section Twenty-five of the Canadian Charter of Rights and Freedoms
Section Twenty-five of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in 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
Equal opportunity
Equal opportunity, or equality of opportunity, is a controversial political concept; and an important informal decision-making standard without a precise definition involving fair choices within the public sphere...

 for the Canadian people, economic development
Economic development
Economic development generally refers to the sustained, concerted actions of policymakers and communities that promote the standard of living and economic health of a specific area...

 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
Equalization payments
Equalization payments are cash payments made in some federal systems of government from the federal government to subnational governments with the objective of offsetting differences in available revenue or in the cost of providing services....

.

Writing in 1982, Professor Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....

 expressed skepticism 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
Charlottetown Accord
The Charlottetown Accord was a package of proposed amendments to the Constitution of Canada, proposed by the Canadian federal and provincial governments in 1992. It was submitted to a public referendum on October 26 of that year, and was defeated.-Background:...

 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 formulas, each applicable to different types of amendments. These five formulas 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 law 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:
(a) the Canada Act 1982 (which includes the Constitution Act, 1982 in Schedule B),
(b) 30 Acts and Orders contained in the Schedule to the Constitution Act, 1982 (including, most significantly, the Constitution Act, 1867), and
(c) 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)
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)
New Brunswick Broadcasting Co. v. Nova Scotia is a leading Supreme Court of Canada decision wherein the court has ruled that parliamentary privilege is a part of the unwritten convention in the Constitution of Canada...

, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 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 static and could not be modified except for through the amending formulas.

General

Section 52 and the remaining sections of the Constitution Act, 1982 are located under the header "General."

Section 56 of the Act states that the English and French versions of the Constitution are equal, and section 57 adds that the English and French versions of the Constitution Act, 1982 itself are equal. Legal experts compare this to section 18
Section Eighteen of the Canadian Charter of Rights and Freedoms
Section Eighteen of the Canadian Charter of Rights and Freedoms is one of the provisions of the Charter that addresses rights relating to Canada's two official languages, English and French. Like section 133 of the Constitution Act, 1867, section 18 requires that all statutes and other records...

, which states that English and French versions of statutes are equal.

Section 59 limits the application of section 23
Section Twenty-three of the Canadian Charter of Rights and Freedoms
Section Twenty-three of the Canadian Charter of Rights and Freedoms is the section of the Charter that constitutionally guarantees minority language educational rights to French-speaking communities outside Quebec, and, to a lesser extent, English-speaking minorities in Quebec...

 of the Charter (minority language education) in Quebec. The section will not be fully valid in Quebec until the provincial government chooses to ratify it.

Section 60 states that the Act may be called the Constitution Act, 1982, and that the Constitution Acts can be collectively called the Constitution Acts, 1867 to 1982.

External links


See also

  • Australia Act 1986
    Australia Act 1986
    The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom...

  • New Zealand Constitution Act 1986
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