The Constitution of Canada

What is the Canadian Constitution?

When we talk about the Constitution of Canada, we’re not talking about a single document, but rather a bunch of different ones that collectively make up the highest levels of Canadian law.

The most important of these is the Constitution Act of 1867, also known as the British North America Act. It outlines Canada’s system of government, including the structure of Parliament, the way elections work, the role of the monarchy, the powers of the executive branch, and the division of powers between the federal government and the provinces.

The second key piece is the Constitution Act of 1982, which is dominated by a long section called the Canadian Charter of Rights and Freedoms, which outlines the civil rights of each Canadian citizen. The 1982 Act also describes the process for changing (amending) constitutional laws.

Then there is everything else, which is to say various other lesser-known pieces of legislation that regulate things deemed to be “constitutional” matters — that is, laws that affect the fundamental institutions of the Canadian government — such as laws that regulate the Governor General, the Supreme Court of Canada, and the provincial parliaments. Treaties with the aboriginal peoples of Canada also have the force of constitutional law.

History of the Canadian Constitution

Modern Canada was founded in 1867 when four British colonies in North America decided to unite and form a single, self-governing confederation under the British Crown. The British law that outlined the terms and structure of this union was known as the British North America Act, and it provided Canada with a workable political system for nearly 120 years.

Since the British North America Act was a British law, it could only be modified by the British parliament when British politicians felt like it. From time to time, the Canadian prime minister would ask the British government for changes and they’d usually be made, but as Canada aged and became a more independent, powerful, and self-confident nation this state of affairs became increasingly awkward and embarrassing.

In the early 1980s, the government of Prime Minister Pierre Elliott Trudeau (1919-2000) made it a priority to “bring home,” or patriate, the BNA Act, and turn it into a wholly Canadian law that could only be modified by the government of Canada. With the support of British Prime Minister Margaret Thatcher (1925-2013), this goal was achieved in 1982 with her government’s passage of the Canada Act, which stripped Britain of all remaining lawmaking powers over Canada. The subsequent sight of Trudeau and Queen Elizabeth II (1926-2022) signing the new, patriated BNA Act — now renamed the Constitution Act — on Canadian soil remains one of the most iconic images of modern Canadian history.

The British North America Act / Constitution Act, 1867

Written in Victorian legalese, the Constitution Act, 1867 — which is the post-1982 name for the British North America Act — is not an easy thing to read, nor does it say a lot of things you might expect. Though it’s the document that spells out Canada’s system of government, it doesn’t mention how the parliamentary system works, how the prime minister is chosen, how the bureaucracy is organized or other seemingly important matters.

The reasons why are perhaps best explained in the Act’s preamble:

Back in 1867 the authors of the Constitution Act did not really think of themselves as creating a new country, but rather outlining the terms of union between four existing British colonies. It’s from this perspective that the bulk of the Constitution Act is written, which explains why the majority of the document focuses on clarifying the different powers of the federal and provincial governments, rather than the style of those governments themselves.

The preamble’s other important phrase is “a constitution similar in principle to that of the United Kingdom.” The Constitution of the United Kingdom operates more on tradition and custom than clear, explicit rules, and this was also intended to be the case with Canada. Even today, most of the rules governing the Canadian parliamentary system still aren’t written down, but are said to be set by constitutional conventions that have arisen from centuries of British (and, since 1867, Canadian) tradition. As is often the case when rules aren’t written down, however, there’s always a lot of debate in modern Canada over what is and isn’t a “convention,” especially when an unexpected or unusual situation arises that doesn’t seem to have much precedent. This is why it can be a good thing to be a professor of political science in Canada; you’ll often be summoned by the media and politicians to help interpret a tricky situation when the Constitution itself isn’t much help.

Parts of the Constitution Act, 1867

The Constitution Act is divided into 11 parts which are divided into 147 sections. There are also six “schedules” at the end that clarify in greater detail things mentioned earlier in the document.

• Parts I and II are essentially the preamble, that describe the context of Canada’s 1867 union.
• Part III describes the powers of the executive branch, which the constitution somewhat confusingly assigns to “the Queen” and Governor General, even though in practice these powers are exercised by the prime minister and cabinet.
• Part IV describes the powers of the House of Commons and Senate.
• Part V is a dated chapter describing how the provincial governments of Ontario, Quebec, New Brunswick and Nova Scotia work (other provincial constitutions exist in the form of separate acts of the British Parliament).
• Part VI describes the different powers of the federal government and the provincial governments.
• Part VII describes some information about the judicial branch.
• Part VIII sets out some of the debt and payment deals that were worked out between the colonies as part of the terms of the 1867 union, as well as some general economic rules and regulations the governments of Canada must follow.
• Part IX is “miscellaneous,” which includes more specifics about Ontario and Quebec, oaths of office, the languages of parliament, foreign treaties, and the appointment of government officers.
• Part X mandated the government of Canada to build a railroad from Quebec to Nova Scotia, and was repealed after it was completed.
• Part IX sets out a formula for deciding how many senators the Atlantic provinces will get after Prince Edward Island and Newfoundland join Canada, which was widely expected to eventually happen at the time the constitution was written (and indeed did, in 1873 and 1949, respectively).
• Full text of the Constitution Act, 1867

The Canadian Charter of Rights and Freedoms

Along with the patriation of the BNA Act, one of the crowning achievements of Prime Minister Pierre Trudeau was adding a Charter of Rights and Freedoms to the Canadian Constitution. This Charter outlines the inalienable, protected human rights, liberties, and freedoms enjoyed by all Canadian citizens and prevents any Canadian government, at any level, from passing a law that violates them.

The Charter is formally called Part I of the Constitution Act, 1982, which is the second half of Canada’s “main” constitution (after the Constitution Act, 1867, described above). The Charter is divided into 34 sections.

The five Charter freedoms (Section 2):

The six main Charter rights (Sections 3-23):

How the Charter of Rights and Freedoms Works

Laws passed by the Canadian government (or any provincial government) are not allowed to violate the Charter of Rights and Freedoms. Section 24 of the Constitution Act, 1982 gives Canada’s courts the power to overturn laws that violate the Charter, and since 1982 it has become common for Canadians to sue governments over laws and policies that they claim violate their Charter rights.

Obviously, all laws limit rights and freedoms to some degree, but Section 1 of the Act explicitly states that these limits must be “demonstrably justified in a free and democratic society.” It’s thus up to the courts to figure out when a law stops being a “demonstrably justified” limit on a freedom and starts being a violation of that freedom. In recent decades, Canadian courts have declared all sorts of laws unconstitutional, including limitations on abortion, laws criminalizing prostitution, and long mandatory prison sentences for convicted criminals. Though technically any court can rule a Canadian law unconstitutional, in practice, legal cases involving so-called “Charter challenges” are usually appealed all the way to the Supreme Court of Canada, which makes the final decision.

It’s worth noting that the violation of a Canadian’s human rights by a private entity, such as a business with discriminatory hiring practices, would not be considered a Charter matter, since the Charter only regulates the government and government employees. The Canadian Human Rights Act regulates actions between private individuals, with violations adjudicated by the Canadian Human Rights Commission, not the Canadian court system.

• Full text of the Charter of Rights and Freedoms
• Charter Cases, profiles of leading court cases involving the Charter of Rights and Freedoms
• Notwithstanding Clause FAQ, CBC

Other Constitutional Laws

Many other laws passed by Britain or Canada since 1867 hold the status of constitutional law, though these tend to be largely unknown to anyone who isn’t a constitutional scholar. The laws Britain passed every time a new province joined Canada, for instance, are considered constitutional laws, as are a few special laws regulating the office of the Governor General, the House of Commons, and the Supreme Court. The Constitution Act, 1982 gives special protections to Indian treaties, which means those have the force of constitutional law as well.

What separates a normal law from a constitutional law? Well, Part V of the Constitution Act, 1982 contains a list of subjects which can only be changed using the constitutional amending formula. If a law affects one of those things, it’s part of the constitution.

• Canadian Constitutional Documents, Solon Law Archive

Changing the Canadian Constitution

As mentioned, the pre-1982 system for changing the Canadian constitution was to ask the British Parliament to pass a constitutional amendment. After the constitution was patriated — made an entirely Canadian law — a complicated new system for changing the constitution was introduced, known as the amending formula. Under this system, (described in Part V of the Constitution Act, 1982) there are different rules for passing different kinds of amendments.

An amendment that only “applies to one or more, but not all, provinces” requires approval from the Canadian parliament and the governments of any affected provinces. An amendment that affects all provinces, by contrast, requires the approval of at least seven of the provincial governments representing at least 50 per cent of the Canadian population (sometimes called the 7-50 formula). On a handful of really important matters, such as changing the amending formula itself, unanimous provincial consent is necessary.

The very high bar for passing substantial amendments is probably the main reason Canada’s Constitution has not been significantly modified since 1982, though there have been a few minor amendments passed, usually only involving one province (see sidebar). These are known as Constitution Amendment Proclamations.

• The Constitution Since Patriation: Chronology, Parliament of Canada

The Troubles of the 1980s and 90s

Though the patriation of 1982 was a proud moment for Canada, and the Charter an important development for Canadian human rights, the overall structure of the Canadian government has long been controversial, which has made the topic of constitutional reform a popular topic of political debate in Canada. Common criticisms include:

• Canada’s Senate is undemocratic and unrepresentative, and should be changed,
• Quebec’s status as a fundamentally “unique” part of Canada needs to be acknowledged, and Quebec needs to be given special powers to protect its culture and language,
• The secretive process of appointing judges to the Supreme Court of Canada needs to be changed,
• Seats in the House of Commons need to be more fairly distributed,
• Depending on your perspective, either the federal government or the provincial governments need more powers.

When Brian Mulroney (1939-2024) was elected prime minister of Canada in 1984, he twice tried to substantially change the Constitution to address some of these concerns, and twice failed.

The first effort came in 1987 with the Meech Lake Accord. Among other things, this package of constitutional amendments would have given Quebec the legal status of a “distinct society” within Canada, given provincial governments the ability to veto future constitutional amendments, and mandated provincial involvement in the process of appointing Supreme Court justices. This package was rejected after it failed to get unanimous consent of all provinces, but never one to be discouraged easily, in 1992 Mulroney proposed another even more ambitious package of amendments, known as the Charlottetown Accord. It promised many of the same things as Meech, but with many ambitious new ideas as well. On October 26, 1992 Charlottetown was put to a nation-wide referendum and was voted down, 54 to 46 per cent. The Accord was so complicated that almost everyone could find something wrong with it, and its rejection was a stinging rebuke to Mulroney, who resigned shortly after.

• Text of the Meech Lake Accord, Solon Law Archive
• Text of the Charlottetown Accord, Solon Law Archive

In the aftermath of Mulroney’s resignation, “fixing the Constitution” quickly fell out of fashion as something Canadian politicians were willing to talk about, let alone attempt. Today, it continues to be seen as a very divisive topic with high potential to exacerbate Canada’s regional cleavages, particularly between Quebec and the rest of Canada.