Constitution of Canada

The Constitution of the Canada is the supreme law in Canada. It is about an amalgam of codified laws, not codified traditions and conventions. It traces the broad outlines of the Canadian governmental system, as well as the civic right of all the Canadian citizens.

The composition of the Constitution of Canada, as defined in article 52 (2) of the constitutional Law of 1982 , includes/understands: the Law of 1982 on Canada , the legislative texts and the decrees appearing in its appendix (including the constitutional Law of 1982 ), and all modifications made to these documents. This includes in fact all the British legislative texts former to the Acte of British North America or which modify this one. The Supreme court of Canada affirmed moreover than this list was not exhaustive and than it also includes not-written doctrines. Nevertheless, almost all the constitutional Jurisprudence concentrates on the constitutional Loi of 1867 , the constitutional Loi of 1982 (including the Canadian Charte of the rights and freedoms ), and oneself-saying it “  constitution non-écrite  ”.

History of the Constitution

• See also: constitutional History of Canada

The first pretense of constitution for Canada was the royal Proclamation of 1763. The Act renamed Canada “  Province off Quebec   ” and redrew its borders, establishing a provincial government named by the British government. The proclamation was regarded as the constitution in fact of Quebec until in 1774 when the British government adopts the Acte of Quebec of 1774, which establishes many procedures of governorship in the area of the Quebec. It widens the borders of the colony and adopted the British criminal code, inter alia.

The colony of Canada accepted its first true constitution with the constitutional Acte of 1791 which establishes the compostion of the government. It was replaced later by L Acte of British North America of 1867 which founds the Dominion of Canada.

In 1931, the British Parliament votes the Statut of Westminster. This Act granted to all the countries Dominions legislative authorities equal to that of the the United Kingdom. This had its logical result in 1982 when the British Parliament votes the Loi of 1982 on Canada , giving up all the constitutional and legislative bonds remaining with Canada and accepting the legality of the constitutional Loi of 1982 . The constitutional Loi of 1982 was adopted as Annexe B of the Loi of 1982 on Canada .

With the introduction of the Law on Canada and the Charter of the rights and freedoms which accompanied it, much changed in the Canadian constitutional law. The constitutional Loi enchased several constitutional conventions and makes the procedure of modification much more difficult (see Procédures of modification). The Charter operated a dramatic change in the constitutional law owing to the fact that this one concentrates now mainly on the individual rights and collectives of the Canadians. Before the adoption of the Charter in 1982, the personal rights and freedoms did not have any solid constitutional protection in Canada. When a stage of government adopted a law which seemed to go against the civic rights, the Canadian constitutional lawyers were to argue in a creative way, for example by affirming that the law violated the division of the federal and provincial capacities or by quoting a technical defect which had to see little with the rights and freedoms of the individual. Since 1982, however, the Charter became the most quoted part of the Constitution and solidified the protection of the rights for the Canadian people. Quebec forever ratified the Canadian constitution (see Night of the Long Knives).

Constitutional law of 1867

• detailed Article: constitutional Law of 1867

This law was an Act of the British, in an original manner known Parliament under the name of the Acte of British North America of 1867 , which created the Dominion of Canada starting from three provinces separated in the British North America and subsequently allowed other provinces and colonies to join this union. It defines the type of government of Canada, which combines parliamentary the Westminster model of government of the United Kingdom with a division of the capacities (Fédéralisme). Although several Actes of British North America followed, this one remains most famous and is regarded as being the document founder of the Canadian Confederation (i.e. union of the provinces and colonies in British North America). With the repatriation of the constitution in 1982, this Act was renamed constitutional Loi of 1867 . In the recent history, the constitutional Loi of 1867 mainly was used as a basis for the analysis of the division of capacities between the governments federal and provincial.

Constitutional law of 1982

• detailed Article: constitutional Law of 1982

This law was an Act of the Parliament of Canada requiring a full political independence towards the United Kingdom. This agreement was signed without the agreement of one of the province founder of the country and only territory officially French-speaking Canadian: Quebec (see the Night of the Long Knives (Quebec)). The Part V of this law created a procedure of constitutional amendment which did not require a vote of the British Parliament. Moreover, Part I of this law forms the Canadian Charte of the rights and freedoms which defines the rights and civic freedoms of each Canadian citizen, such as the freedom of conscience and religion, expression, the right of circulation, etc Party II sanctions the rights of the people autochtones of Canada.

Canadian charter of the rights and freedoms

• detailed Article: Canadian Charter of the rights and freedoms

As noted higher, the Charter form Part I of the constitutional Law of 1982 . The Charter is a constitutional guarantee of the individual rights and collectives. It is about a document relatively short and written in a simple language in order to ensure its accessibility for the average citizen. It is said that it is the part of the constitution which has the most impact on the daily life of Canadian, and it is the form of constitutional law whose expansion has been fastest for several years.

Procedures of modification

• detailed Article: Amendments with the Constitution of Canada

With the constitutional Law of 1982 , the amendments with the constitution must be made in accordance with the Part V of the constitutional Loi , which envisages five procedures of different modification. The amendments can be put before under section 46 (1) per any province or stage of the federal government. General procedure described in section 38 (1), known under the name of “  formulate 7/50  ”, requires: (A) the assent at the same time of the House of Commons and the Senate; (b) the assent of two-third of the provincial legislatures (at least seven provinces), accounting for at least 50% of the population (necessarily, this would include at least the Quebec or the Ontario, being given that they are the populeuses provinces). This formula applies specifically to any amendment concerning the representation proportional to the Parliament, the capacities, the mode of selection and the composition of the Senate, the Supreme court, as well as the addition of new provinces or territories. The other procedures of amendments are for the exceptional cases envisaged by the Loi :

• In the case of an amendment concerning the position of the Queen, the number of senators, the use of the one of the two official languages (prone to section 43), or the composition of the Supreme court, the amendment must be adopted provinces unanimously, in accordance with section 41.

• However, in the case of an amendment concerning the provincial borders or the use of one official language inside one only province, amendment must be adopted by the legislatures affected by the amendment (section 43).

• In the case of an amendment which affects only the federal government, amendment does not require consentment provinces (section 44). This also applies to the amendments affecting only the provincial government (section 45).

Not-written sources of the Canadian Constitution

The existence of a not-written constitution was reaffirmed by the Supreme court in the Reference relating to the secession of Quebec:

the Constitution is not only one written text. It includes all the system of the rules and principles which govern the exercise of the constitutional capacity. A surface reading of certain specific provisions of the text of the Constitution, without more, could induce in error. It is necessary to make a thorough examination of the subjacent principles which animate the whole of our Constitution, of which federalism, the democracy, the constitutionnalism and the rule of the law, as well as the respect of the minorities.

In practice, there were three sources of constitutional law:

conventions: constitutional conventions belong to the Constitution, but are not legally applicable. This includes the existence of a parliamentary Cabinet, the fact that the general governor must give his sanction to the laws, and the obligation which an election has the Prime Minister to start if it loses a vote of confidence.

royal Prerogative: It acts of vestiges of capacities formerly held by the British Crown, reduced during the years by the parliamentary system. They are mainly decrees of the council which give to the government the authority to declare a war, to conclude from the treaties, to emit passports, to make designations, to make rules, to incorporate, and receive grounds dévoluées with the Crown. `

not written Principles: It acts of principles incorporated in the Canadian constitution by reference of the Préambule of the constitutional Loi of 1867 . Contrary to conventions, they have legal force. Among the recognized constitutional principles find the Fédéralisme, the Démocratie, the constitutionnalism and the Rule of the law, as well as the respect of the minorities. Legal independence and the responsible Gouvernement are the different one.

External bonds