The Canadian Constitution
A constitution provides the fundamental rules and principles that govern a country. It creates many of the institutions and branches of government, and defines their powers.
Canada was created by an act of the Parliament of the United Kingdom called the British North America Act, 1867 (now known as the Constitution Act, 1867) uniting the British colonies of the United Province of Canada, Nova Scotia, and New Brunswick.
The Constitution of Canada includes the Constitution Act, 1867, and the Constitution Act, 1982. It is the supreme law of Canada. It reaffirms Canada's dual legal system and also includes Aboriginal rights and treaty rights.
What does our Constitution say?
The Constitution sets out the basic principles of democratic government in Canada when it defines the powers of the three branches of government:
- the executive
- the legislative
- the judiciary
The Constitution was "patriated" from the United Kingdom in 1982.
When Canada was created, it was a self-governing British colony. The British North America Act, 1867, codified many constitutional rules for Canada, but major changes to the Constitution could only be made by the United Kingdom Parliament. In 1982, the Charter was enacted as part of Canada's Constitution along with a set of procedures allowing the Constitution to be amended in Canada.
The Queen has the executive power in Canada, but in our democratic society the Queen's powers are exercised by constitutional convention on the advice of Ministers who enjoy the confidence of the House of Commons. Together, the Prime Minister and other Ministers form the cabinet, which is responsible to Parliament for government business. Ministers are also responsible for government departments, such as the Department of Finance and the Department of Justice. When we say "the government," we are usually referring to the executive branch.
Parliament is the legislative branch of the federal government. Parliament consists of the Queen (who is usually represented by the Governor General), the Senate and the House of Commons. Bills are debated and passed by the Senate and the House of Commons. The Governor General must also give royal assent to a bill in order for it to become a law. By constitutional convention, royal assent is always given to bills passed by the Senate and the House of Commons.
The Minister of Justice is responsible for the Department of Justice, which provides legal services such as drafting laws and providing legal advice to the government and its departments. The department also develops criminal law and public law, as well as policies and programs for victims, families, children and youth criminal justice. The Minister of Justice is also the Attorney General or chief law officer of Canada
Our Constitution also includes provisions relating to the judicial branch of government, composed of judges. The judiciary must interpret and apply the law and the Constitution, and give impartial judgments in all cases, whether they involve public law, such as a criminal case, or private law, such as a dispute over a contract.
The Constitution only provides for federally appointed judges. Provincial judges are appointed under provincial laws.
What is a federal system?
The Parliament of Canada and the provincial and territorial legislatures both have the authority or jurisdiction to make laws. Parliament can make laws for all of Canada, but only about matters the Constitution assigns to it. A provincial or territorial legislature can only make laws about matters within the province's borders.
The Constitution Act, 1867 authorized Parliament to establish a general court of appeal for Canada, as well as any additional courts to better administer the laws of Canada. It was under this authority that the Federal Courts, the Tax Court, and the Supreme Court of Canada were established.
The federal Parliament deals mainly with issues that concern Canada as a whole: trade between provinces, national defence, criminal law, money, patents, and the postal service. It is also responsible for the three territories: Yukon, the Northwest Territories, and Nunavut. Federal law allows territories to elect councils with powers like those of the provincial legislatures.
The provinces have the authority to make laws about education, property, civil rights, the administration of justice, hospitals, municipalities, and other local or private matters within the provinces.
Australia and the United States also have federal systems where jurisdiction is divided between the federal government and the various states. In contrast, the United Kingdom has a unitary system where there is only one level of government.
There are also local or municipal governments. They are created under provincial laws and can make bylaws that regulate a variety of local matters: zoning, smoking, pesticide use, parking, business regulations, and construction permits.
Aboriginal peoples in Canada have different types of government. For example, First Nations can have a range of governmental powers over reserve lands under the federal Indian Act. Other Aboriginal governments, such as self-governments, exercise these powers as a result of agreements they have negotiated with the federal and provincial or territorial governments.
It was only with the Canadian Charter of Rights and Freedoms that human rights in Canada were protected in the written Constitution.
The Constitution Act includes protection for the rights of the Aboriginal peoples (Indian, Inuit, and Métis) of Canada. Section 35 of the Constitution Act recognizes and affirms Aboriginal rights, which are rights related to the historical occupancy and use of the land by Aboriginal peoples. This is to help Aboriginal peoples preserve their customs and traditions for future generations, as continuing cultural practices. Section 35 also recognizes and affirms treaty rights, which are specifically set out in agreements between the Crown and particular groups of Aboriginal people.
Canada is a bijural country – that means it has both common and civil law systems. Matters of private law in Quebec are governed by the civil law, while the common law applies in the other provinces. Federal bills and regulations must respect both types of systems, and the legal concepts within these laws must be expressed in both English and French.
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