Week 5, Chapter 17
Chapter 17 - Canadian Constitution and Constitutional Change
Components of the Canadian Constitution
We can define a Constitution as the whole body of fundamental rules & principles according to which
a state is governed. The Constitution provides for the basic institutions of govt & the relations among
them, the relations b/w national and provincial govts, & the relations b/w govts and citizens.
Canada doesn't have a single doc called “the Constitution”. Instead, some parts of it are written and
other parts are unwritten.
The Constitution Act, 1867
The Constitution Act, 1867, was the law passed by the British Parliament that joined Nova Scotia,
New Brunswick, ON & Quebec together as the new Dominion of Canada.
The Act contained many of the components that would be expected in a constitution, providing for
much of the basic machinery & institutions of govt & establishing a federal system.
It doesn't contain much detail about the executive and judicial branches of govt & it included virtually
nothing about limiting the powers of govt in relation to the people. It said little about provincial
constitutions & Aboriginal peoples were merely mentioned as a subject of the authority of the federal
Amendments to the Constitution Act, 1867
Formal amendments to the 1867 act are indeed the 2 nd ingredient of the Canadian Constitution.
Schedule 1 to the Constitution Act, 1982, lists 17 amendments to the 1867 act made by the British
Parliament and another 8 made by the Canadian Parliament.
British Statutes and Orders in Council
The 3 major component of the Canadian Constitution is a collection of British statutes and orders in
council. Chief among these is the Statute of Westminster, 1931, which declared Canada to be totally
independent of Britain.
Organic Canadian Statutes
“Organic” Canadian Statutes are laws passed by the Parliament of Canada that are of special or quasi-
constitutional status. These include the 3 Canadian statutes that carved provinces out of the Northwest
Territories; the Manitoba Act of 1870 and the Saskatchewan and Alberta Acts of 1905. Many other
Canadian laws are of constitutional significance, such as Supreme Court Act, an ordinary law that
fleshes out the provisions of the 1867 act with respect to the judicial branch of govt.
Constitution Act, 1982
The Constitution Act, 1982 was, in a sense, the last amendment to the 1867 Constitution Act to be
passed by the British Parliament, but it is worthy of separate mention. The Constitution Act 1982,
was appendixed to the Canada Act, passed by the British Parliament, that finally terminated all British
authority over Canada.
This process is referred to as the “patriation” of the Canadian Constitution. The Constitutional
documents of 1982 did not alter the position of the monarchy in Canada. The same person continues
to be recognized as Queen of Canada as is claimed by several other countries, including Britain.
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Although Canada was completely self-governing after 1931, many amendments to the 1867 act still
had to be made by the British Parliament because no formula had been developed to do so in Canada.
Along with patriation, therefore, the Constitution Act, 1982 contained a domestic constitution
The 2 main aspect of the Constitution Act, 1982 was the Charter of Rs & Fs. The Charter of Rs &
Fs imposed formal new limitations on the govt in interaction w/ its citizens. In addition, it changed
the manner in which such liberties were protected, now relying more on judicial interpretation than
The 1982 Act also contained provisions on equalization payments to have-nots provinces and on
Aboriginal rights, & included a slight change to the division of powers b/w federal & provincial
govts. Equalization payments previously rested on a statutory basis, but would henceforth be
As far as the division of powers was concerned, a new section, 92A, was added that clarified and
extended provincial powers over natural resources.
The defn of the Can constitution must also include judicial decisions that have clarified or altered
provisions of the 1867 act or other parts of the Constitution.
The largest body of such decisions consists of the judgments of the British Judicial Committee of the
Privy Council (JCPC), Canada’s final court of appeal until 1949, which significantly affected the
division of powers between the federal and provincial govts.
The final component of the Constitution, consists of constitutional conventions, defined as unwritten
rules of constitutional behaviour that are considered to be binding by & on those who operate the
Constitution but that are not enforceable by the courts.
Conventions develop from traditions & through constant recognition & observance become as
established, rigid, and sacrosanct as if they were written down. Although, such conventions can't be
enforced by the courts, they are sometimes recognized by judges, giving them added authority over
the actions of politicians.
Many constitutional conventions relate to the executive branch of govt, which is given slight attention
in the 1867 act. These include the very position of PM & Cabinet, the dominant role of these offices
even when the written words give formal powers to the GG, and the principle of responsible govt-that
the Cabinet must resign or call an election if it loses the confidence of the H of Commons.
It should be added that some actions that are legal according to the formal written words of the
constitution may actually be unconstitutional if they violate a convention that has superseded a
written power. An ex would be the power of the GG to withhold assent from a piece of legislation.
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Week 5, Chapter 17
The Constitution of Can has 2 central documents-the Constitution act, 1867 with its amendments, and
the Constitution Act, 1982-and it contains other written documents, including other British statutes
and orders in council, organic Canadian statutes, and British and Canadian court decisions.
In its unwritten part, it incorporates a whole series of constitutional conventions that fill in gaps or
alter the way in which written provisions are implemented.
The Pre-1960 Quest For Constitutional Change
In the early years of Confederation, 1 principal concern involved completing the territorial integrity of
Canada w/ the eventual creation of 10 provinces and now 3 territories.
Another early constitutional issue was achieving autonomy from Britain by means of the Statute of
Westminster (1931), along with the abolition of court appeals to the Judicial Committee of the Privy
2 other persistent constitutional questions also arose before 1960: the search for a formula by which
the 1867 act and the Constitution generally could be formally amended in Canada & the proposal that
rights and freedoms or civil liberties be given constitutional protection. These2 issues then became
enmeshed in constitutional demands inspired by the Quiet Revolution in Quebec.
The 4 key packages of such mega-constitutional changes were the 1970 Victoria Charter, the
Constitution Act, 1982, the 1987 Meech Lake Accord, and the 1992 Charlottetown Accord.
A Domestic Constitutional Amending Formula
Attempts to find a domestic constitutional amending formula began in 1927, but since no success was
achieved before 1931, the Statute of Westminster contained a clause allowing the British Parliament
to amend the 1867 act at Canadian request.
In 1949 a partial domestic amending formula was adopted that became the BNA Act Amendment(#1)
of 1949. That act added a clause to section 91 to the effect that in matters of concern to the national
govt alone, the federal Parliament could make constitutional amendments in Canada, w/o reference
either to the provinces or to Britain.
However 5 exceptions remained, the most imp being that any amendment affecting the provinces
would still have to be made by the British parliament.
The basic quesn regarding such amendments was whether they should require the unanimous
approval of the provincial govts before being sent to London. This was the position taken by virtually
every govt of Quebec in order to protect its rights and powers and is referred to as the “compact
theory” of Confederation.
A domestic constitutional amending formula was finally adopted as part of the Constitution Act,
1982. In general, the rigidity and opting-out provisions of the 1982 amending formula were
considered a victory for the provinces and a trade-off for accepting the federal govt’s Charter of
The formula required that the federal Parliament and provincial legislatures approve such
amendments, not just cabinets, as had often sufficed in the past.
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The formula also allows constitutional amendments to be made w/o the consent of the Senate if they
are adopted a 2 time by the House of Commons after 180 days.
A Constitutional Charter of Rights
John Diefenbaker, after becoming the PM had Parliament pass a Bill of Rights in 1960.
Mega-Constitutional Change, 1960-2000
The unresolved issues of a domestic amending formula & a constitutional charter of rights then
became part of the 3 main thrust of change, which emanated from the Quiet Revolution in Quebec.
This was primarily related to Quebec’s place in the Canadian federation as well as to the general
division of powers b/w the 2 levels of govt.
The Victoria Charter
The Victoria Charter contained a constitutional amending formula and a constitutionalized bill of
rights, provided for provincial consultation on Supreme Court appointments, guaranteed equalization
payments to redress regional disparities & represented progress on changes to language rights & to
the federal-provincial division of powers.
Quebec’s Bourassa govt vetoed the package b/c Quebec had not received suff