It all begins with the Constitution: a quick overview.
The Canadian Constitution was passed in 1867 by the Parliament of the United Kingdom [referred to as the British Parliament] and established Canada with four provinces. New Zealand had its Constitution passed by the British Parliament in 1852 and the Australian Constitution was passed by the British Parliament in 1900. These constitutions were all for federations distinct from the unilateral approach of the British system at that time. The Canadian Constitution was based on the concept of the British parliamentary democracy and was intended to not follow the political system and constitution of the United States. Discussions during the Parliamentary Debates on Confederation of the British North American Provinces dealt specifically with the desire to not follow the United States model. Throughout the negotiations and discussions leading to the Canadian Constitution concessions were made to ensure that Lower Canada's French culture and system of civil law continued under the Canadian Constitution.
The other provinces and territories in Canada were added: Manitoba in 1870, the Northwest Territories in 1870, British Columbia in 1871, Prince Edward Island in 1873, the Yukon Territory in 1898, Alberta and Saskatchewan in 1905, Newfoundland in 1949 and Nunavut in 1999.
It is important to recognize that Canada has an unwritten Constitution in addition to the matters set out in the Constitution Act and all of its amendments. The unwritten Constitution is incorporated into the Constitution Act, 1867 by the Preamble which states:
Whereas the province of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:
Canada was a Dominion until the passage of the Statute of Westminster, 1931, so that Canada was not recognized in the international arena and could not, until approximately 1926 at the earliest and 1931 by constitutional amendment, enter into treaties or be recognized as an international state 'separate' from Great Britain and the Commonwealth. There was also a power of disallowance of legislation by the Governor General. Over 110 provincial acts were disallowed between 1867 and 1955. (See La Forest, G.V. Disallowance and reservation of provincial legislation. Ottawa: Dept. of Justice, 1955)
The Canadian Constitution was patriated by the Constitution Act, 1982, part of which is commonly referred to as the Charter. The Constitution Act, 1982 received royal assent by the signing of Her Majesty Queen Elizabeth II, in Ottawa. Amendment of the Canadian Constitution was not easy when Canada had to have agreement and then go to Great Britain to have the constitutional amendment passed. Since 1982, amendment of the Canadian Constitution, has not become any easier and the Meech Lake Accord and the Charlottetown Accord are examples of the difficulties encountered and proposed amendments which failed.
There are five ways of amending the Constitution. The amendments to the Constitution since 1982 have primarily been made using the procedure set out in section 43 [the boundaries of the province or amendment to a provision regarding the use of English or French language within a province] which provides for amendment by the House of Commons, the Senate and the legislature of the affected province. Section 52 of the Constitution Act, 1982 provides:
(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Since Canada is a parliamentary democracy based on the system of governance of Great Britain, three areas are set out in the Constitution: legislative power (ss.17-95; 102-126); the executive power (ss. 9-16, 58-68,s.132, ss134-135); and the judiciary (ss. 96-100). The Executive power of Canada continues to be vested in the Queen. The Governor General represents the Queen in Canada and the Lieutenant Governors of each province are the deputies of the Governor General.
The legislative power federally is held by Parliament consisting of the Queen (Governor General), the House of Commons elected by the voters in elections that must be held every five years and the Senate appointed [summoned] by the Governor General. Senators hold their places until they are 75 years of age unless they fail to attend for two consecutive sessions of Parliament; they become citizens of a "Foreign Power"; they are adjudged to be bankrupt or insolvent; they are convicted of Treason, a Felony or any "infamous" crime; or they cease to be qualified with respect to property requirements. At least 15 Senators must be present to constitute a meeting of the Senate and any vote of the Senate which is tied is deemed not to have passed. No Senator may be elected to the House of Commons nor sit as a member of the House of Commons. The House of Commons is elected according to formulas for ridings across Canada set out in section 27.
Section 91 provides the areas of legislative authority for the Parliament of Canada including the Peace, Order and Good Government [POGG] clause which provides that:
It shall be lawful for the Queen, by and with the Advice and consent of the Senate and House of Commons, to make laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; ... Accordingly, Parliament may legislate for all areas not expressly covered in sections 92 and 93, which outline the legislative powers of the provinces.
Money votes, which are bills to appropriate (spend) any of the Public Revenue (monies from taxes and other sources of revenue), must originate in the House of Commons. Otherwise bills can originate in the House of Commons or in the Senate. Both the House of Commons and the Senate must pass the bill and it must receive royal assent from the Governor General before it becomes law. Laws may come into force when they receive royal assent or on a date specified in the law or when they are proclaimed to come into force.
Within the provinces, the role of Governor General is fulfilled by the Lieutenant-Governor. The Legislative Assemblies provisions provide for elected members who are elected for terms of four years.
Section 35 of the Constitution Act, 1982, provides for recognition and affirmation of aboriginal and treaty rights. These rights arguably include the rights of governance on treaty and aboriginal lands. Very little exploration of these rights has occurred in the court cases. Aboriginal and treaty rights cannot be abrogated or derogated by the provisions in the Charter. Section 25 states:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7,1763; and
(b) any rights or freedoms that no exist by way of land claims agreements or may be so acquired.
The Constitution Act, 1982, contains the Charter of Rights and Freedoms which was included in order to make the majority of provisions of the 1960 Bill of Rights be recognized as constitutional provisions. The Bill of Rights was the achievement of John G. Diefenbaker. Pierre Elliot Trudeau achieved the patriation of the Constitution and the inclusion of the Charter. The preamble to the Charter states that Canada is founded on principles recognized in the rule of law. The Charter provides for fundamental freedoms of conscience and religion; opinion; peaceful assembly; and association. Sections 3 to 5 of the Charter also provide for democratic rights, maximum length of legislative bodies and annual sittings of legislative bodies. It provides for mobility rights, the right to life, liberty and security of the person, security against unreasonable search and seizure, the right not to be arbitrarily detained, rights on arrest or detention, specific rights when charged with offences including the right to be presumed innocent, the right not to be subjected to cruel and unusual punishment, the right not to self-incriminate, and the right to an interpreter when a party does not speak or understand the language in the proceedings or when the person is deaf. Section 15 of the Charter provides for equality rights.
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
There are provisions for French and English as the official languages of Canada and the right to their use in all institutions of Parliament and the government of Canada as well as New Brunswick. The right to education in English or in French is contained in section 23. All Charter rights and freedoms are protected from infringement by a remedy provision in section 24. Section 27 is an 'under-rated' provision in the Charter which provides:
This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
It is important to remember that the Charter only applies to actions of parliament or the legislatures and the governments of Canada and the provinces. The Charter does not apply to actions between private parties.
Section 101 provides for the creation of the Supreme Court of Canada, which occurred in 1875. Prior to Confederation, appeals from provincial courts went to the Privy Council in Great Britain. After the creation of the Supreme Court of Canada, appeals continued for criminal appeals to the Privy Council until 1933 and for civil appeals until 1949. The Federal Court, formerly the Exchequer Court, is created under section 101, and does not possess the inherent jurisdiction of the provincial court system provided for in sections 96 to 100.
There are many provisions of the Constitution which are 'unwritten' arising out of the origins of our system of parliamentary democracy. There are also many provisions regarding the operation of government, of cabinet and even the position of Prime Minister which are not expressly set out in the Constitution. Interpretation of the Constitution evolves to fit changing conditions but the core is established by decisions of the Supreme Court of Canada and, from the earlier period, the Judicial Council of the House of Lords.
Priscilla Kennedy is a lawyer with the firm of Davis LLP in Edmonton, Alberta.
* This article is an overview and does not set out all of the provisions for a full explanation. Some sections and provisions have been generalized.