Constitutional Law

Sources of Constitutional Law

The primary sources of Canadian constitutional law are legislative rules—in the form of documents and statutes created over time: the Constitution Acts of 1867 and 1982 (see Patriation of the Constitution), and other documents that make up the Constitution of Canada. That includes federal and provincial statutes related to constitutional matters, orders-in-council, letters patent (written orders from the Crown) and proclamations. Section 52 of the Constitution Act, 1982 provides for the Constitution of Canada to include the Canada Act of 1982 and the Constitution Act of 1982, as well as legislative texts and decrees included in Appendix I of the latter act, and the modifications to these legislative texts and decrees.

According to the preamble of the Constitution Act of 1867, the Canadian Constitution is similar in principle to the Constitution of the United Kingdom; therefore, along with their own constitutional statutes Canadians have inherited various British laws and charters such as the Bill of Rights of 1689, the Act of Settlement of 1701.

Not all constitutional law is set out in documents or statutes. Other sources include case law—for example the interpretation of the Constitution by the courts, which is just as important as the written Constitution itself. This is especially true in Canada, where statutes are subject to judicial review for their legality, or constitutionality. Section 52 of the Constitution Act of 1982 says the Constitution overrides any incompatible provision of any piece of legislation.

The Judicial Committee of the Privy Council has rendered some 120 judgments on the distribution of legislative powers alone; the Supreme Court of Canada has handed down even more. Among the more important cases that have affected the Constitution are the following: in the field of the distribution of powers, the Hodge Case, Fort Frances Case (emergency power), Aeronautics Reference (residual power), Labour Conventions Reference (treaties), Offshore Mineral Rights (resources under the sea), Jones Case (official languages), Dionne Case (cablevision), Montcalm Construction Case (labour relations), Anti-Inflation Act Reference (peacetime emergency powers) and Constitution Reference (patriation).

Constitutional Monarchy

The character of the Canadian Constitution reflects Canada's position as a constitutional monarchy (see Crown), a parliamentary democracy and a federation. As a constitutional monarch, the King, who is sovereign in Canada, reigns but does not rule. Executive power is effectively wielded by the prime minister and the Cabinet. The King, because of Canada's federal system, is represented at both levels of government, federally by the governor general and in each province by a federally appointed lieutenant-governor. In the January 1982 judgment of the British Court of Appeal on the Indians of Alberta, Lord Denning stated that although in principle the Crown is indivisible, it has become separate and divisible through practice and usage.

The conventions of the Canadian Constitution accurately reflect the actual exercise of executive power. For example, although the Crown can refuse to give assent to legislation (by either disallowing assent or reserving—delaying—assent), under constitutional law this power will not likely be exercised in future. Nowadays it is very unlikely that a governor general or a lieutenant-governor would refuse to give royal assent to a bill duly passed by Parliament or a legislature. Although possible legally, it would constitute in practice a negation of the principle of responsible government and it would be contrary to a convention of the Constitution. The Imperial Conference of 1930 ended the governor general's power to reserve assent from a federal bill that had been adopted by Parliament. It also ended the imperial power of disallowance in relation to federal bills.

The power of reserve and disallowance of provincial bills is, in the words of Chief Justice Laskin, "dormant if not entirely dead." The power of disallowance was last used in 1943; the power of reserve was last used in 1961 in Saskatchewan, but the bill was given royal assent by the governor general.

The powers of the prime minister and government officials are not unlimited, however. According to British constitutional expert A.V. Dicey, all officials, from the prime minister to a collector of taxes, are under the same responsibility for any act done without legal justification as every other citizen is, reflecting the principle of the rule of law, which is also part of Canadian constitutional law (see Administrative Law).

Legislative, Executive and Judicial

In Canada the distinction between legislative, executive and judicial powers is not as sharp as in the United States. Judicial power is separate in Canada, but in the Canadian parliamentary system, the executive is also part of the legislative branch, and responsible to it. Parliament comprises the King, as head of Canada, a Senate and a House of Commons.

A well-established constitutional convention requires that the government maintain the confidence of the Commons to remain in power. If such confidence is lost, the prime minister must either resign or seek dissolution of Parliament. The government is not responsible to the Senate. On matters of constitutional amendment, the Senate only has a delaying veto of 180 days; otherwise it has the same decision-making powers as the House of Commons, although money bills must originate in the Commons.

The concept of parliamentary supremacy— that Parliament's powers are unlimited—originates in British constitutional law. Canada has inherited this concept in its Constitution, but under its federal system the federal and provincial governments are only sovereign within the legislative limits outlined by the Constitution, and their powers are also limited by the Canadian Charter of Rights and Freedoms.

The Canadian system is a parliamentary democracy in which the offices of head of government (prime minister) and chief of state (King of Canada) are distinct; the government is responsible to the elected Commons. The house can be dissolved before the five-year term limit of any government; usually governments with a majority of seats in the House last four years.

Distribution of Powers

Canada has been a federation since 1867. Legislative, executive and judicial powers are divided between the two levels of government, federal and provincial. The Constitution Act of 1867 lists areas of federal jurisdiction (eg, the postal system, criminal law, banking, navigation, defence, bankruptcy) and areas of provincial jurisdiction (eg, property and civil rights, municipal institutions). Other articles or sections allocate special powers (eg, education) and concurrent jurisdictions (eg, agriculture and immigration, old-age pensions, supplementary benefits).

Two important areas of federal jurisdiction are the regulation of trade and commerce (interprovincial and international trade or so-called "genera" trade and commerce, as defined by the Supreme Court of Canada) and the authority to legislate over matters relating to the peace, order and good government of Canada. The latter is concerned with matters that might otherwise fall within provincial authority and deals with national emergencies, matters of national dimensions or national concerns or matters of so-called "residue" that are not listed in the enumerated powers of Parliament and the legislatures.

Theoretically the distribution of executive power resembles that of legislative power. Judicial power is also distributed in the Constitution Act of 1867. Jurisprudence in constitutional law has established the principle that Parliament and the provincial legislatures may not delegate legislative powers to each other, but that a sovereign authority can delegate powers to a subordinate body which it has created. The classic example is the relationship of the provincial legislature to a municipality.

Power can also be delegated from a sovereign body (eg, Parliament or a provincial legislature) to a subordinate body of the other government. For example, Parliament has delegated to provincial commissions the power to issue permits or make regulations in areas of federal jurisdiction, such as extra-provincial motor transport or marketing.

Under the Constitution Act, 1867, the provinces have exclusive jurisdiction over the creation of civil and criminal courts and in the administration of civil and criminal justice, but Parliament has exclusive jurisdiction in respect of criminal law and procedure. Criminal law generally includes matters under criminal jurisprudence contained in legislation promoting public peace, order, security and the protection of health and morality (in certain aspects). The provinces, however, can legislate in regulatory and quasi-criminal matters. Provincial quasi-criminal legislation may be enacted to suppress conditions that may foster the development of crime.

For the administration of federal laws, Parliament may establish administrative tribunals. Parliament has also created a Federal Court and a Tax Court. And the Supreme Court of Canada was established by statute in 1875. All judges in federal courts are federally appointed, as are those of the higher provincial courts. The judges presiding over lower provincial courts are provincially appointed.

The role of the judiciary is of cardinal importance because the interpretation of the Constitution is as important as the Constitution itself. Courts give life to a Constitution, which must endure, as it cannot be amended as often as a statute can. Courts must favour the evolution of a Constitution. In a federation a supreme court plays a crucial role in the distribution of legislative powers. The courts also play a major role in the interpretation of the Canadian Charter of Rights and Freedoms.

External relations fall under federal jurisdiction. In the Labour Convention Reference (1937) the judiciary established that the central authority could conclude treaties in Canada's name but that such treaties would not modify internal law (see Treaty-Making Power). If a treaty does require a change in internal law, this must be accomplished through the enactment of a statute. The implementation of a treaty must respect the distribution of legislative powers as defined by the Constitution. Parliament implements treaties relating to federal matters; if a treaty relates to provincial matters, the provincial legislatures are responsible for implementing legislation.

In addition to the 10 provinces, Canada has three federal territories: the Yukon, the Northwest Territories and Nunavut. Under the Constitution the territories fall under the legislative jurisdiction of Parliament. They have been delegated certain important powers by Parliament. The commissioners of the respective territories are Crown representatives, and the executive exercises substantial power, but the principle of responsible government does not apply in territorial legislatures, because the delegated powers can be modified, extended or withdrawn.

Prior to 17 April 1982 the territories could have gained provincial status by a simple Act of Parliament. Now, under the Constitution Act, 1982, it is necessary that both federal houses and seven provinces (with an aggregate of 50 per centof the country's population) consent to such a move.

Federalism and the Amending Formula

Federalism in Canada rests on a trilogy of factors: the distribution of powers; the interpretation of these powers by the courts, which must ensure that the distribution of powers in the Constitution is not violated and that all enacted legislation is constitutional; and the formula for constitutional amendment. The Constitution of 1867 had no general amending formula.

Since 1867 the provincial legislatures have had the right to amend their internal constitutions (except where they concerned the role of the lieutenant-governor), but Parliament did not gain the right to amend its internal constitution until 1949. For changes to the most important part of the Constitution it had to address the Parliament at Westminster, which would legislate a constitutional amendment if requested to by both federal houses.

From 1927 to 1981 the federal and provincial governments tried unsuccessfully to agree on an amending formula. The Victoria Charter of 1971 was an agreement reached by Canadian heads of government (with the exception of Québec's Premier Robert Bourassa) concerning constitutional reform. The Turner-Trudeau Formula contained in the Victoria Charter provided that the Constitution could be amended by a resolution of the House of Commons and Senate and by at least a majority of the provinces, which would have included each province with a population of at least 25 per cent of the national population, at least two Atlantic provinces, and at least two western provinces having a combined population of at least 50 per cent of all western provinces. Québec agreed with the Turner-Trudeau Formula but rejected the Victoria charter overall because it proposed paramount federal power in programs related to social security.

Only in 1982 did the British Parliament divest itself of its power of amendment to the Canadian Constitution. By s2 of the Canada Act of 1982 (UK), no Act of Parliament of the UK passed after the Constitution Act of 1982 can extend to Canada as part of its law. The British renounced any legislative role for Canada after 17 April 1982.

The Constitution Act of 1982 includes a general amending formula (the Alberta-Vancouver Formula) under which an amendment requires the agreement of the federal houses and two-thirds of the provinces comprising 50 per cent of the population. A dissenting province may opt out (see Opting-Out) of an amendment concerning a transfer of power from a provincial to a federal jurisdiction, in which case, if the amendment is related to education, or other matters, the province will receive fair financial compensation.

If the amendment concerns the composition of the Supreme Court, the role of the monarchy, or the amending formula itself, all 11 authorities (the federal government and 10 provinces) must agree on its adoption. Some amendments need only the agreement of the federal government and the particular provinces concerned. In principle both Parliament and the provincial legislatures may still amend their internal constitutions.

Failed Attempts at Change

At Meech Lake on 30 April 1987 and in Ottawa on 3 June 1987, Prime Minister Brian Mulroney and the premiers of the 10 provinces agreed on a constitutional accord termed the Meech Lake Accord (see Meech Lake Accord: Document) to allow Québec to give its "political" consent to the patriation of the Constitution in 1982, and the Constitution Act of 1982.

The Meech Lake Accord eventually failed. A further attempt for national reconciliation led to a national referendum in 1990 (see Charlottetown Accord). This initiative also failed. The political aftermath of the two failed accords resulted in the second Québec referendum on separation (see Québec Referendum (1995)). The vote was narrowly decided in favour of the federalist side of the debate. Political developments that followed the referendum result included federal legislation recognizing Québec as a distinct society, and federal non-constitutional legislation committing the government not to proceed with future amendments to the constitution without the consent of Canada's five regions (Atlantic Canada, Quebec, Ontario, the Prairie provinces and British Columbia). In 1996-98 the Supreme Court ruled on three questions relating to the secession of Québec and rendered an advisory opinion on the legality of secession.

Evolution of Federalism

Canadian federalism evolves by constitutional amendments, by administrative agreements and by judicial decisions. Since the patriation of the Constitution in 1982, eight constitutional amendments have been adopted: Aboriginal rights (equality of men and women) in 1983; electoral representation at the federal level in 1985; the school system in Newfoundland in 1987, 1997 and 1998; the rights of the two linguistic communities in New Brunswick in 1993; the Prince Edward Island Confederation Bridge in 1994; and the school system in Québec in 1997 (section 93).

Other changes, but not of a constitutional nature, have also taken place since the Québec referendum of 30 October 1995. They consist of two motions recognizing the distinct character of Québec, one passed by the House of Commons, the other adopted by the Senate in 1995; the act concerning constitutional amendments which provides for five regional vetos in 1996; and administrative arrangements concerning manpower training with many provinces including Québec in 1997-98.

Constitutional law has developed considerably since the 1982 adoption of the Canadian Charter of Rights and Freedoms and the great number of cases rendered by the Supreme Court of Canada on the interpretation of that Charter. The top court continues to rule on the distribution of legislative powers between the Parliament of Canada and the provincial legislatures.