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The Constitution of Canada is a large number of documents that have been entrenched in the constitution by various means. Regardless of how documents became entrenched, together those documents form the supreme law of Canada; no non-constitutional law may conflict with them, and none of them may be changed without following the amending formula given in Part V of the Constitution Act, 1982.
Contents
- Legislation mentioned in 522
- Amendments
- Judicial interpretations
- Repealed before 1982
- Repealed in 1982 by 522
- Repealed after 1982
- References
The constitution includes legislation that was specifically written as constitutional documents, statutes that have become entrenched since their original creation, some ancient treaties and royal proclamations, unwritten procedures adopted from the British parliamentary system of government, and unwritten underlying values.
The oldest Canadian constitutional documents were enacted before Confederation, and originated from the English or British government. Those documents were received—along with many subconstitutional laws—into the law of Canada and its provinces by means of section 129 of the Constitution Act, 1867 (then called the British North America Act, 1867). Between Confederation in 1867 and patriation in 1982, the United Kingdom enacted some Canadian constitutional documents by means of the Colonial Laws Validity Act 1865 and the Statute of Westminster, 1931, most notably the British North America Acts. During this time, Canada also passed a small number of constitutional documents for itself. After patriation, all new constitutional documents were passed by the Parliament of Canada and the Legislatures of its provinces.
After patriation, the methods of constitutional entrenchment are:
- specific mention as a constitutional document in section 52(2) of the Constitution Act, 1982;
- amendments to constitutional documents using the amending formula in Part V the Constitution Act, 1982;
- in some cases, reference by an entrenched document;
- ruling by a court that a practice is part of Canada's unwritten constitution; or
- judicial interpretation of constitutional provisions.
The list of documents for the first two methods is well-established. For the next two, however, there is debate about which documents, or which parts of those documents, are included in the constitution. In some cases, the Supreme Court of Canada has made definitive rulings regarding whether a given documents forms part of the constitution, but in many cases the question is still unclear.
Legislation mentioned in §52(2)
Section 52(2) of the Constitution Act, 1982 says "The Constitution of Canada includes (a) the Canada Act 1982, including this Act; (b) the Acts and orders referred to in the schedule; and (c) any amendment to any Act or order referred to in paragraph (a) or (b)." The schedule, in turn, lists the following documents. Most were British North America Acts and were renamed as Constitution Acts in 1982. Others include the Parliament of Canada Act, 1875, the Statute of Westminster, 1931, and acts that created new provinces or changed provincial borders.
All of these acts were originally enshrined by the Colonial Laws Validity Act 1865 in the case of acts by the United Kingdom Parliament or enshrined by the British North America (No. 2) Act, 1949 or the British North America Act, 1871 in the case of acts by the Canadian Parliament.
In addition to the acts listed here, six other acts were listed as constitutional in §52(2) but were repealed at the same time (see "Repealed constitutional documents", below).
Amendments
Part V of the Constitution Act, 1982 described the process required for amending any constitutional document from then on. The general process requires the agreement of the federal government plus seven provinces with at least 50% of the population (section 38), but some amendments require unanimity of the provinces (section 41), and some can be done unilaterally by the federal government (section 44) or bilaterally by the federal government and a provincial government (section 43). As of 2013, eleven amendments have been made under the 1982 amending formula, one of which was later repealed.
Judicial interpretations
Interpretation of the Canadian Constitution has been significantly affected by the decisions of courts, which have the power to determine the meaning of phrases and, in some cases, even read into it rules that are implied but not directly stated. Canada's Constitution is not limited to the interpretation that would have been used by the original drafters, unlike countries that use originalism to interpret their constitutions. The power of the courts to update the meaning of the Constitution to fit with changing times was first established in the Persons Case, which decided that the word "person" in the Constitution included women. The Persons Case referred to this principle as the "living tree doctrine".
In spite of the living tree doctrine, for several decades Canadian courts mostly limited themselves to interpreting the Constitution for issues of jurisdiction. For example, courts determined that airports were within the power of the federal government even though the original drafters of the Constitution could not have conceived of an airport. After the introduction of the Constitution Act, 1982 and the Charter of Rights and Freedoms, Canadian courts became much more active in interpretation of Constitutional questions. One notable example is in the case of gay rights and section 15(1) of the Charter. Section 15(1) lists grounds against which people may not be discriminated by the government, and includes race, religion, sex, and others, but it does not limit itself to the listed grounds. Consequently, numerous provincial superior court cases, beginning with Halpern v. Canada (Attorney General) in Ontario, ruled that sexual orientation was an unwritten protected ground under section 15(1).
Repealed before 1982
There were a number of documents that are generally seen as constitutional but were repealed before the Canada Act came into effect. The Revised Statute of Canada 1970 contains a list of constitutional documents, which was drafted by the government although was not an official list like the schedule of the Constitution Act 1982 would be. That list contained the pre-1970 documents listed in the schedule of the Constitution Act 1982, plus the Royal Proclamation 1763 and the following documents. All of the following documents were either redundant with a later constitutional document, were repealed, or were spent after they served their one purpose.
Repealed in 1982 by §52(2)
There were six acts named as constitutional in §52(2) of the Constitution Act, 1982, but were repealed at the same time:
Repealed after 1982
Three constitutional documents have been replaced using the 1982 amending formula: