|
The Canadian Constitution is the highest law of Canada. It is
uncodified. It outlines Canada's system of
government, as well as the civil rights of all Canadian citizens. Generally
speaking all of the British laws that predate or modify the British North America Act make up the legislation that has been come to be known as the Canadian
Constitution.
The Constitution, as it is generally known, is made up of many parts (see the list below) , the most significant that are most
often cited today are:
- The Constitution Act of 1867. Formerly known as the British North America Act of 1867, this act was
the act of the British Parliament that granted Canada self-government, and spelled out how Canada's government would
operate.
Since 1982 the Charter has become an often cited portion of the Constitution. The
predecessor acts and orders that are listed below are generally not as well known. These acts have sometimes been denounced as
"messy," "almost incoherent" or worse for their somewhat convoluted form and long, unconsolidated history. However, they remain
the laws that determine the division of powers between federal and provincial jurisdictions, the terms upon which new provinces
entered Canada and the division between executive, legislative and judicial areas of power in a manner very different from the
United States.
Much of how Canada's government works cannot be accurately learned from a simple reading of the constitution. As like Britain,
the Canadian government is heavily dependent on unwritten constitutional conventions. For example, a literal reading of the constitution would seem to
indicate that Canada is an authoritarian nation run almost single-handedly by a dictatorial Governor General. This is not the case, of course. The Governor General is for the most part a
figurehead, and the true power rests in the Prime Minister, though the latter office was not even mentioned in the Constitution until 1983.
At the same time, Canada relies on constitutional
convention to a much smaller degree than the United Kingdom, and
there are parts of the Constitution of Canada (namely the portions that deal with civil rights and provincial-federal relations)
in which a literal reading of the constitutional documents closely resembles actual practice.
Amending the Constitution
Modifying the constitution of Canada used to be done by a single majority vote in the House of Commons of the United
Kingdom or "Imperial Parliament". Since the repatriation of the constitution in 1983, however, amendments can only be passed
by the House, Senate, and a two-thirds majority of the provinces. Though not constitutionally mandated, a popular referendum in every province is also considered to be necessary by many, especially
following the precedent established by the Charlottetown Accord (see below).
If a constitutional amendment only affects one province, however, only the assent of that province's legislature is required.
Six of the nine amendments passed so far have been of this nature, with four passed by and for Newfoundland, one passed for New Brunswick, one
for Prince Edward Island, and one for Quebec.
There are some parts of the constitution that can only be modified by a unanimous vote of all the provinces, however. This
includes changing the Supreme Court of Canada in any
way, changing the process for amending the constitution itself, or abolishing the Monarchy in Canada. The latter regulation was included largely to appease the pro-monarchist Premier of Newfoundland at the time.
Amending the Canadian Constitution is a topic of great debate in Canada. There seems to be general agreement among provincial
governments that some parts of the Constitution need to be amended to deal with long-standing demands from many provinces. There
are demands by western provinces for a greater share of power at the federal level, and demands from Quebec for greater
protection for its status as distinct society. Quebec, in particular, has not formally signed the Constitution Act of 1982,
although this is largely symbolic and does not affect the legal applicability of the Act.
Nevertheless, agreement on details of amendments has been elusive. Further complicating attempts to amend the Constitution is
the complexity of the procedure for doing so, which in most cases requires approval from both the federal parliament and
two-thirds of the provincial governments, and in some cases require the approval of all ten provincial governments.
The 1987 Meech Lake Accord, a package of constitutional
amendments intended to deal with long-standing concerns of western provinces and demands from the province of Quebec, failed in
1990 when it was not ratified by the ten provincial governments. The last attempt at a comprehensive package of constitutional
amendments was the Charlottetown Accord, which arose out of
the failure of the Meech Lake Accord. The Charlottetown Accord was defeated in a national referendum in 1992.
There have been several relatively minor amendments to the Constitution since it was repatriated in 1982 including amendments
dealing with provincial schooling in Newfoundland and Quebec and the changing the name of Newfoundland to Newfoundland and Labrador (see below).
Pieces of the Constitution
The following is a list of pre-1982 British legislation, Orders-in-Council and Statutory
Instruments of the United Kingdom that form, or formed, part of the Canadian Constitution:
- Constitution Act, 1867 (Consolidated) (Formerly known as the British North America Act, 1867 [Consolidated]-
Establishment of Dominion of Canada as self-governing British colony, with own national
parliament and four provincial legislatures
- Rupert's Land Act, 1868- annexation of Rupert's
Land territory
- Temporary Government of Rupert's Land Act, 1869- creation of Northwest Territory
- Manitoba Act, 1870- creation of the province of Manitoba
- Rupert's Land and North-Western Territory Order
- British Columbia Terms of Union (Formerly Order of Her Majesty in Council admitting British Columbia into
the Union)- joining of the province of British Columbia
- Constitution Act, 1871 (Formerly British North America Act, 1871)
- Prince Edward Island Terms of Union (1873)- joining of Province of Prince Edward Island
- Parliament of Canada Act, 1875- allowing the Parliament of Canada to expand lawmaking powers
- Adjacent Territories Order 1880
- Constitution Act, 1886 (Formerly British North America Act, 1886)
- Canada (Ontario Boundary) Act, 1889
- Statute Law Revision Act, 1893
- Canadian Speaker (Appointment of Deputy) Act, 1895, Session 2 (Repealed by the Constitution Act, 1982)-
acceptance of the constitutional validity of the post of deputy speaker
- Yukon Territory Act, 1898- creation of Yukon
Territory
- Alberta Act, 1905 (Formerly The Alberta Act, 1905)- creation of Province of Alberta
- Saskatchewan Act, 1905 (Formerly The
Saskatchewan Act, 1905)- creation of Province of Saskatchewan
- Constitution Act, 1907 (Formerly British North America Act, 1907)
- Constitution Act, 1915 (Formerly British North America Act, 1915)
- British North America Act, 1916 (Repealed by Statute Law Revision Act, 1927)
- Statute Law Revision Act, 1927
- Constitution Act, 1930
- Statute of Westminster, 1931-
removing all remaining lawmaking powers from British Parliament, allowing for Canadian parliament to modify British-made
legislation
- Constitution Act, 1940 (Formerly British North America Act, 1940)
- British North America Act, 1943 (Repealed by the Constitution Act, 1982)
- British North America Act, 1946 (Repealed by the Constitution Act, 1982)
- Letters Patent Constituting the Office of Governor General of Canada- Limiting the political powers of the
British Monarch over Canada
- Newfoundland Act (Formerly British North America Act, 1949)- joining of the Province of Newfoundland
- British North America (No. 2) Act, 1949 (Repealed by the Constitution Act, 1982)
- Statute Law Revision Act, 1950
- British North America Act, 1951 (Partially repealed by the Constitution Act, 1964, Repealed by the Constitution Act,
1982)
- British North America Act, 1952 (Repealed by the Constitution Act, 1982)
- Constitution Act, 1960 (Formerly British North America Act, 1960)
- Constitution Act, 1964 (Formerly British North America Act, 1964)
- Constitution Act, 1965 (Formerly British North America Act, 1965)
- Constitution Act, 1974 (Formerly British North America Act, 1974)
- Constitution Act (No. 1), 1975 (Formerly British North America Act (No. 1), 1975)
- Constitution Act (No. 2), 1975 (Formerly British North America Act (No. 2), 1975)
- Miscellaneous Statue Law Revision Act, 1977
Amendments to the Constitution
As mentioned, amending the constitution has been a topic of much debate in contemporary Canada, and the two biggest attempts
to revise the document have both been defeated. There have, however, been nine minor amendments to the constitution since the
Constitution was repatriated in 1983.
Most of these amendments have been limited in scope, dealing with only specific provinces, and thus not subject to national
debate. None have been ratified by a national referendum.
- 1983 Amendment: mandated yearly Prime Minister meetings with Aboriginal leaders.
- 1985 Amendment: modified formula for determining seats in the House of Commons.
- 1987 Amendment: extended education rights to the Pentecostal Church in
Newfoundland (repealed by 1998 Amendment)
- 1993 Amendment: made English and French both official languages in New
Brunswick.
- 1993 Amendment: allowed for a "fixed link" bridge to replace ferry services to Prince Edward Island.
- 1997 Amendment: allowed the Province of Newfoundland to create a secular school system to replace the church-based education
system.
- 1997 Amendment: permitted Quebec to replace the denominational school boards with
ones organized on linguistic lines.
- 1998 Amendment: ended denominational quotas for Newfoundland religion classes.
- 1999 Amendment: creation of territory of Nunavut.
- 2001 Amendment: changed the name of "Province of Newfoundland" to "Province of Newfoundland and Labrador"
External links
|