The constitution is the fundamental law of a political system to which all other laws must conform. It is necessary for democratic politics, allowing for the peaceful settlement of differences and establishing the basic framework for governance.
Key Concepts
- A constitution deals with two primary sets of relations: citizen-state relationships and the distribution of powers within the state
- Democratic constitutions limit state power by identifying individual freedoms and rights
- The Canadian Constitution is not one document but a series of laws passed between 1867 and 1982
- The Charter of Rights and Freedoms (1982) replaced parliamentary supremacy with constitutional supremacy
- Constitutional conventions are unwritten practices that emerge over time and are accepted as binding rules
Constitutional Relations
Citizen-State Relations
A democratic constitution limits power by:
- Identifying individual freedoms and rights that the state cannot infringe
- Sometimes recognizing group rights
- Establishing accountability mechanisms
Distribution of State Powers
The constitution divides functions among three main branches:
- The Legislature: Making the law
- The Executive: Implementing the law
- The Judiciary: Interpreting the law
In federal states like Canada, the constitution also divides law-making powers between national and regional governments.
Forms of Constitutional Rules
Constitutional rules take three forms:
Written Documents Formal constitutional texts such as the Constitution Act, 1867 and Constitution Act, 1982.
Common Law Decisions of the courts that establish legal precedents.
Constitutional Conventions Unwritten practices that emerge over time and are generally accepted as binding rules of the political system.
Constitutional Convention
The convention that the leader of the party winning the most seats in an election to the House of Commons is called on to form a government. This is not written in law but is universally followed.
Important Resource
The written Constitution can be found at: http://laws-lois.justice.gc.ca/eng/const/FullText.html
However, the 1981 Reference on the Constitution established that the written Constitution is “sometimes a misleading road map” because it doesn’t capture conventions and evolving interpretations.
Constitutional Functions
A constitution performs several specific functions in a democratic system.
Representation
Prescribing the Basis of Representation Constitutions determine who is represented and how:
Representation by Population Based on the principle of “one person, one vote.” All elected members should represent roughly the same number of voters.
Representation by Region Many democracies add regional representation:
- United States: two senators per state regardless of population
- Australia: 12 senators per state
- Canada: federalism grants regional governments exclusive right to pass laws on certain subjects
Representation by Group Some constitutions guarantee representation to specific groups:
- New Zealand: seven seats guaranteed to Maori representatives
- Finland: separate Sami Parliament with advisory role
- Australia: rejected Indigenous Voice to Parliament in October 2023 referendum
Representation Methods
The method by which representatives are chosen varies by jurisdiction and may include first-past-the-post, proportional representation, or mixed systems.
Power
Empowering the State A constitution provides the basis for legitimate exercise of state power, empowering the state to perform certain functions.
Limiting and Dividing Power The constitution also constrains state power through:
- Periodic Elections: Making power-holders accountable to voters
- Separation of Powers: Creating distinct branches of government
- Federalism: Dividing power between national and regional governments
Rule of Law
Constitutional limits on power establish the rule of law, ensuring that all public authority must be exercised in accordance with law.
Rights
Basic Democratic Rights A democratic constitution establishes the basic right of citizens to choose their government, thus locating sovereignty in the people.
Protected Freedoms Most constitutions also guarantee:
- Freedom of speech, association, and religion
- Legal rights (fair trial, legal counsel, etc.)
Positive Rights Rights may empower individuals by requiring the state to protect or promote their interests:
- A right to equal treatment provides remedy against discrimination
- Some constitutions recognize special status of particular groups (language communities, Indigenous populations)
Individual vs. Group Rights
Constitutions vary in the extent to which they assign rights to individuals versus groups. Canada’s constitution includes both individual rights (Charter) and group rights (language rights, Aboriginal rights).
Community and Identity
Territorial Basis A constitution is the set of rules for a particular territory and may contribute to shared sense of identity.
Unifying Elements In Canada, there is strong support for the Charter of Rights and Freedoms across all social groups and regions.
Divisive Elements Some constitutional provisions may inspire negative feelings:
- Official bilingualism has been contentious in some regions
- The proposal to recognize Quebec as a “distinct society” has been divisive
- Multiculturalism policy has been controversial in Quebec
National Purpose
Declarations of Purpose Constitutions often contain declarations of national purpose:
Constitution Act, 1867 Contained the nation-building goal of an integrated national economy for the new country.
Constitution Act, 1982 Committed federal and provincial governments to:
- Promote equal opportunities for all Canadians
- Reduce economic disparities between regions
Comparative Examples
- China’s Constitution: https://npcobserver.com/wp-content/uploads/2023/11/PRC-Constitution-2018.pdf
- United States: https://constitution.congress.gov/constitution/preamble/
Form vs. Substance
A democratic-sounding constitution is no guarantee that the political system is actually democratic. Russia’s constitution appears democratic on paper but the political system functions quite differently in practice. Source: http://www.constitution.ru/en/10003000-03.htm
Canada’s Constitution
Structure
Canada’s written constitution is not one document, but a series of laws passed between 1867 and 1982.
Basic Principles
In Reference re Secession of Quebec (1998), the Supreme Court of Canada identified four basic principles of the constitution:
- Federalism
- Democracy
- Constitutionalism and the rule of law
- Protection of minorities
Federalism
Distribution of Authority The constitution distributes law-making and revenue-raising authority between federal and provincial governments.
Provincial Autonomy Within their spheres of authority, provinces are autonomous. This reflects the federal principle that some matters properly belong to provincial societies to decide, while others are national in scope.
Contested Jurisdiction
What matters belong exclusively to provinces versus the federal government is not always clear and is sometimes contested, leading to jurisdictional disputes.
Democracy
Limited Constitutional Text The Constitution Act, 1867, contains few explicit provisions on democracy. It states Canada would have a constitution “similar in Principle” to that of Britain.
Basic Premises
- Majority rule is a basic premise of democracy in Canada
- However, a national majority cannot override a provincial majority if the issue constitutionally belongs to the provinces
- The Supreme Court has stated that consent of the governed is a basic value in democracy
Comparison
Unlike Canada’s constitution, the US Constitution explicitly states the principle of consent of the governed.
Constitutionalism and the Rule of Law
Supreme Law Section 52(1) of the Constitution Act, 1982 declares the Constitution is the supreme law.
The Rule of Law Guarantees that all public authority must be exercised in accordance with law.
Parliamentary Supremacy (Pre-Charter) Before the Charter, parliamentary supremacy prevailed. This meant Parliament was supreme and no other governmental institution had the power to nullify its laws (except for federalism reasons).
Constitutional Supremacy (Post-Charter) The Charter of Rights and Freedoms replaced parliamentary supremacy with constitutional supremacy, giving courts power to strike down laws that violate Charter rights.
Protection of Minorities
Historical Background The recognition of group or minority rights has a long history in Canada.
Before Confederation:
- The Royal Proclamation (1763)
- The Quebec Act (1774)
- Province of Canada (1841-67): legislation affecting language or religion required support from the affected community
After Confederation:
- Constitution Act, 1867
- Charter of Rights and Freedoms, 1982
The Charter of Rights and Freedoms
The Charter, entrenched in the Constitution Act, 1982, protects various categories of rights and freedoms.
Reference: https://laws-lois.justice.gc.ca/eng/const/page-12.html#docCont
Fundamental Freedoms (Section 2)
Protected Freedoms:
- Freedom of religion
- Freedom of belief
- Freedom of expression
- Freedom of the media
- Freedom of assembly
- Freedom of association
Historical Context
These freedoms were part of common law and Canada’s parliamentary tradition before 1982, and were included in the Canadian Bill of Rights, 1960. Now they enjoy more secure protection enforced by the courts.
Democratic Rights
Previously Embodied in Constitution Act, 1867 Now explicitly protected in the Charter:
- The right to vote
- Requirement that elections to the House of Commons and provincial legislatures be held every five years
- Requirement that Parliament and provincial legislatures meet at least once every year
Mobility Rights
Freedom of Movement Canadians have the right to freedom of movement within Canada.
Qualifications:
- Provinces can impose reasonable residency requirements as a condition of receiving social services
- Provinces can introduce affirmative action programs favouring local residents so long as the provincial employment rate is below the national employment rate
Citizenship and Social Rights
Mobility rights raise issues about the relationship between citizenship and social rights, particularly regarding access to provincial services.
Legal Rights
Protected Legal Rights:
- Security of the person
- Right to a fair trial
- Right not to be subjected to unreasonable search and seizure
- Right not to be held without charge
- Right to legal counsel
Codification
The Charter protects legal rights Canadians previously enjoyed under common law, constitutional conventions, and Criminal Code, but now with explicit constitutional protection.
Equality Rights (Section 15)
Non-Discrimination Affirms that everyone is equal under the law and prohibits discrimination based on:
- Race
- National or ethnic origin
- Colour
- Religion
- Sex
- Age
- Mental or physical disability
Affirmative Action Section 15 also declares that affirmative action is constitutional. Governments can introduce programs that treat different groups differently to improve conditions of disadvantaged individuals or groups.
Language Rights
Extensions of 1867 Provisions The Charter extends language rights contained in the Constitution Act, 1867:
- Extended declaration of equality of English and French in federal government operations
- Entrenched New Brunswick’s official bilingualism policy in the constitution
- Established education rights for anglophone and francophone parents
Minority Language Education Rights Anglophone and Francophone parents have the right to have their children educated in their mother tongue, where there is enough demand to justify public funding.
Important Case
Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3 clarified the application of minority language education rights.
Aboriginal Rights
Treaty Rights Aboriginal Canadians’ current and future treaty rights were entrenched in the Constitution.
Reference: http://www.sfu.ca/~aheard/abrts82.html
Charter Impact
The CBC identified 6 big changes the Charter brought to Canadian society: http://www.cbc.ca/news/canada/6-big-changes-the-charter-of-rights-has-brought-1.1244758
Parliamentary Government in Canada
Parliamentary government operates on the basis of both written constitution and uncodified constitutional conventions.
Structure of Parliament
Definition Parliament consists of the monarch and the legislature (bicameral: House of Commons and Senate).
The Monarch
- Head of state
- Currently King Charles III
- When not in Canada, powers exercised by Governor General (currently Mary Simon)
- At provincial level: Lieutenant-Governors represent the King
Written vs. Actual Powers According to the written constitution, the monarch has considerable powers:
- Decides which party will form government
- Decides when Parliament will be dissolved for election
- Approves all laws
In reality, all these powers are exercised by the Crown’s advisers: the Prime Minister and cabinet, who are sworn into the Privy Council. The monarch and Governor General are mainly ceremonial figures.
Responsible Government
Legislative-Executive Fusion Parliament includes both legislative and executive branches of government. Ministers are usually Members of Parliament (MPs), though they don’t have to be.
Confidence Convention Under the conventions of responsible government, the monarch or Governor General must appoint as Prime Minister the party leader who has the confidence or support of the House of Commons.
Confidence Votes A confidence vote is a vote on:
- The Throne Speech
- The budget
- Any crucial piece of government legislation
- A motion of non-confidence moved by the opposition
Loss of Confidence When the government loses a confidence vote in the House, it has lost the right to govern. The Prime Minister then has two choices:
- Resign from office, or
- Advise the Governor General to dissolve Parliament for a general election
Stability Through Party Discipline Governments must retain support of the House to stay in office, but in practice responsible government is stable because of party discipline. MPs vote as members of disciplined party teams, making confidence vote outcomes predictable.
Reserve Powers The Governor General acts on the advice of the Prime Minister, but retains certain discretionary powers known as:
- Reserve powers of the Crown
- Personal prerogatives of the Crown
Historical Examples
King-Byng Affair (1926) and the 2008 prorogation crisis raised questions about these reserve powers, but their practical significance remains limited.
Ministerial Responsibility
Accountability Ministers must explain and defend all actions and decisions carried out by their government departments.
Financial Measures Under the Constitution Act, 1867:
- Legislation on raising or spending public money must originate in the House of Commons
- Cabinet has exclusive right to propose taxing or spending measures to the House of Commons
Responsible Government Requirements Conventions of responsible government require ministers to be accountable to the House of Commons.
Parliamentary Supremacy versus Constitutional Supremacy
Pre-Charter: Parliamentary Supremacy
Under traditional parliamentary supremacy, courts would not question the substance of legislation introduced by Parliament and provincial legislatures, so long as governments stayed within their constitutional spheres of authority (federalism constraints).
Post-Charter: Constitutional Supremacy
Shift in 1982 The introduction of the Charter of Rights and Freedoms replaced parliamentary supremacy with constitutional supremacy.
Judicial Authority The Charter granted the judiciary new authority to second-guess decisions made by elected legislators:
Section 32 - The Charter applies to both federal and provincial governments
Section 52(1) - The Constitution is supreme and laws inconsistent with the Charter are invalid
Section 24 - The courts have authority to strike down laws inconsistent with the Charter
Exam Alert
The shift from parliamentary supremacy to constitutional supremacy is one of the most significant constitutional changes in Canadian history. Understand the implications for the balance of power between legislature and judiciary.
Judicial Independence and the Separation of Powers
Judicial Independence
Definition Judicial independence means judges are to be free from any political interference in their decision-making.
Protections
- Embedded in Canadian political culture
- Enshrined in laws on contempt of court
- Guidelines for ministerial conduct
Contempt of Court
In 1976, a Canadian minister was found in contempt: https://www.nytimes.com/1976/01/24/archives/canadian-minister-found-in-contempt.html
Concerns Governments select judges and control court budgets, creating potential for interference. Recent analysis has raised questions about partisan considerations in judicial appointments.
Separation of Powers
Judicial Role Under the separation of powers, the role of the judiciary is to interpret the law when disputes arise.
Chief Justice Brian Dickson (1986)
“The role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system.”
Potential Breaches Some argue the separation of powers may be breached when judges make public comments on topical issues and public controversies.
Relations Between the House of Commons and the Senate
Legitimacy Questions
Historical Issues:
- Senators are not elected
- Historically, most Senate appointments were patronage appointments
Current System: Independent Advisory Board for Senate Appointments now provides recommendations: https://www.canada.ca/en/campaign/independent-advisory-board-for-senate-appointments.html
Constitutional Constraints
Financial Primacy Money bills must be introduced in the House of Commons.
Political Accountability Under responsible government, the cabinet is accountable to the House, not the Senate.
Senate Reform
The legitimacy of the Senate has always been questioned, leading to ongoing debates about reform or abolition.
Amending the Constitution
Before 1982
British Parliamentary Control The Constitution Act, 1867 was a law passed by British Parliament; only Britain could amend it.
Key Question Who should ask Britain to amend the Constitution?
- Just Ottawa?
- Ottawa with provincial support?
- All provincial governments?
- Some provinces?
Challenge to Patriation Some provinces opposed Pierre Trudeau’s plan to patriate the Constitution with support of only Ontario and New Brunswick, leading to a court challenge.
Since 1982
Amendment Procedures The Constitution Act, 1982 contains four different procedures for amending the Constitution, setting out different combinations of federal and provincial consent.
Opting Out A province can opt out of any amendment that transfers powers relating to education or other cultural matters from provincial to federal level.
Limited Public Participation The 1982 Act did not expand public opportunities for participation in constitutional change, though it may be hard to resist calls for referendums in major constitutional changes.
Failed Constitutional Amendments
Meech Lake Accord Controversial because it contained provisions recognizing Quebec as a distinct society. Failed to achieve required provincial ratification.
Charlottetown Accord Contained many Meech Lake provisions, plus:
- “Canada clause” listing basic characteristics of Canadian society
- Recognition of right to Aboriginal self-government
- Provision guaranteeing 25% of House seats to Quebec
Defeated in a national referendum.
Constitutional Amendment Difficulty
The failure of Meech Lake and Charlottetown demonstrates the extreme difficulty of achieving major constitutional change in Canada, requiring broad federal-provincial consensus.
Quebec Secession Reference
The Question
Does Quebec have the constitutional right to secede?
PM Chrétien government referred this question to the Supreme Court of Canada.
Supreme Court Decision (1998)
In Reference re the Secession of Quebec, the Supreme Court ruled:
- Quebec could negotiate separation if a clear majority of Quebecers voted “yes” on an unambiguous referendum question
- Secession would require constitutional amendment
- Both Quebec and federal government would have obligation to negotiate
The Clarity Act
Response to Court Decision The Chrétien government introduced the Clarity Act, which gives Parliament the power to:
- Review the wording of any referendum question proposed by a Quebec government to determine whether it is unambiguous
- Review any referendum result to ensure a “yes” vote constitutes a clear majority
Potential Conflict Conceivably, Parliament could refuse to enter negotiations on separatism with Quebec if it decided one or both tests were not met.
Open Question
How would Quebec respond to a federal refusal to negotiate after a referendum? This remains a significant unresolved constitutional question.
Definitions
Constitution The fundamental law of a political system to which all other laws must conform.
Constitutional Conventions Unwritten practices that emerge over time and are generally accepted as binding rules of the political system.
Common Law Law established through court decisions and precedents rather than through statutes.
Rule of Law The principle that all public authority must be exercised in accordance with law, and that the constitution is the supreme law.
Federalism A system of government in which sovereignty is constitutionally divided between a central governing authority and regional governments.
Parliamentary Supremacy The doctrine that Parliament is the supreme legal authority and can create or repeal any law; no other institution can override its legislation.
Constitutional Supremacy The principle that the Constitution is the supreme law, and courts can strike down legislation that violates constitutional provisions.
Responsible Government The convention that the executive (cabinet) must maintain the confidence of the elected legislature (House of Commons) to remain in office.
Confidence Vote A vote in the House of Commons on key government measures (Throne Speech, budget, crucial legislation) or on a motion of non-confidence; losing such a vote means the government has lost the right to govern.
Ministerial Responsibility The convention that ministers must explain and defend all actions and decisions of their departments to the House of Commons.
Party Discipline The practice of MPs voting according to their party’s position rather than individual judgment, ensuring predictable outcomes on confidence votes.
Reserve Powers Discretionary powers retained by the Governor General (or monarch), also called personal prerogatives of the Crown, though their practical application is limited.
Privy Council The formal body of advisers to the Crown; cabinet ministers are sworn in as Privy Councillors.
Judicial Independence The principle that judges must be free from political interference in their decision-making.
Separation of Powers The constitutional principle that the judiciary should be completely separate in authority and function from the executive and legislative branches.
Affirmative Action Programs that treat different groups differently to improve conditions of disadvantaged individuals or groups; declared constitutional under Section 15 of the Charter.
Patriation The process by which Canada gained full control over its constitution from the British Parliament in 1982.
Distinct Society A proposed constitutional recognition of Quebec’s unique cultural and linguistic character; part of the failed Meech Lake Accord.