Constitutional history of Canada
Last updated in July 2016
In 1867, The British North American Act, which forms the basis of Canada’s current Constitution, was passed, establishing the Dominion of Canada – a self-governing part of the British Empire. The Act joined the Provinces of Upper and Lower Canada, Nova Scotia, and New Brunswick together in one federal union. Other provinces would later join the Dominion. The federal legislature was given power to legislate on all matters not explicitly assigned to the provincial legislatures. The Act also gave the federal government the right to disallow any provincial act within two years of its passage. The provinces might levy direct taxation only, whereas the dominion might use any mode of taxation. The Act thus provided for a relatively centralised federation.
The British North America Act was an Act of the British Parliament, and comprised no amendment formula by which the Canadian governments could amend it; amendments therefore had to be requested of Westminster. Such requests from the Canadian Parliament were almost always honoured, and these amendments are known together with the original Act as the British North America Acts (BNAA) 1867 – 1975. The Act also gave Britain the right to disallow acts of the Canadian Parliament. A number of bills were vetoed in this way in the first decade – often with the justification that they were outside the power of the Canadian parliament – but this quickly declined, and stopped after 1880. Meanwhile, in the judicial system, cases could still be appealed to the Judicial Committee of the Privy Council in London, one of Britain’s highest courts. This allowed the Provinces to contest any law they saw as breaching the constitution’s federal-provincial division of powers before a court appointed independently of Canada’s federal government, which appointed all other courts. The Privy Council applied a stricter interpretation of the powers of the federal government than Canadian courts, and the abolition of appeals to the Privy Council in 1933 (for criminal cases) 1949 (for civil cases) undercut the position of the Provinces.
On December 11, 1931, after decades of negotiations between Britain and the Dominion, the British Parliament passed the Statute of Westminster, which put the Dominions on equal footing with the British parliament. This put into effect the Balfour declaration of 1926, which affirmed that each dominion was both equal to the United Kingdom and independent of it, formalising a state of affairs which largely already existed in practice. The Statute marked the beginning of full legislative independence for the Dominions, with the British government renouncing its power to disallow Dominion bills or to legislate for any dominion without its consent. Furthermore, it brought about the legal division of the Imperial Crown into a distinct Crown for each Dominion, separating the King’s role as monarch of Canada from his role as British monarch.
Patriating the Constitution
Despite the passage of the Statute of Westminster, The Canadian Constitution (the BNAA) remained a British Act of Parliament, and although it had been amended by the British Parliament to allow many parts of it to be amended by the Canadian Parliament, most provisions could still only be amended by the British Parliament. Although Canada could have patriated the constitution in 1931, the federal and provincial governments could not create a suitable amending formula.
In 1960, the federal government passed the Canadian Bill of Rights, which did not constitute part of the BNAA. The Bill of Rights held equal footing with any other federal law and only applied to the federal government, addressing fundamental freedoms, legal rights and equality before the law. This bill was not entrenched, but provided that no subsequent law would be interpreted to infringe the rights enumerated in it unless this was explicitly stated. The relatively weak protection offered by the law helped fuel the movement for a more Canadian constitution. A constitutional conference held in 1971 in Victoria produced the Victoria Charter, a proposal for patriating the constitution, but the provinces failed to confirm their acceptance of the Charter. Similar efforts failed in 1975 and 1976.
In the 1960s and 70’s, a movement for independence gained traction in Quebec. The question of Quebec’s independence spurred a new the constitutional question in Canada. In 1980, the Quebecois government called for a referendum on “sovereignty-association.” During the referendum, Prime Minister Pierre Trudeau promised the Quebecois the renewed federalism they wanted. On May 20, 1980 the referendum for a sovereign Quebec failed by a 59.56 percent to 40.44 percent margin. Upon the referendum’s failure, Prime Minister Trudeau called a First Ministers’ Conference from September 8-13, 1980, to discuss charter of rights, patriation, and amending formula and powers over the economy. When the ministers could not come to an agreement, the federal government indicated that it would patriate unilaterally by taking the case directly to the British Parliament. The Supreme Court upheld the government’s declaration, and a second First Ministers’ Conference was held from November 2-5, 1981. At this conference, an agreement was struck between the federal government and almost all provincial governments, with the significant exception of Quebec.
In 1980, a Special Joint Committee of the House of Commons and the Senate was set up to hear submissions from the public on amending the constitution. The twenty-five member committee included ten members from the Senate and fifteen from the House of Commons. There were fifteen Liberals, eight Progressive Conservatives, and two New Democratic Party members. The constitution process was to last thirty days but extended to three months. The committee listened to over 300 presentations from women, Aboriginal people, people with disabilities, ethnic and cultural minorities, and others. Presentations to the committee were televised to create a more transparent process. The committee also considered 1200 written submissions about the Charter. After consideration of all the presentations and submissions, the committee made 123 recommendations to improve the Charter - over half are in the final document. With the government and a majority of the premiers in agreement, the Canada Act 1982 was formally recognized by the governments of the United Kingdom and Canada on March 29, 1982. The Act created an amending formula for the constitution and eliminated the British Parliament’s amendment power.
It took more than fifty years after gaining legislative independence for Canada to finally patriate its constitution in 1982. The Parliament of Canada and the provincial legislatures can now amend the constitution through a set formula: some provisions may be amended by the federal Parliament, others require the additional approval of two-thirds of the Provinces collectively amounting to a majority of the population, while others require the additional approval of all the Provinces (amendments affecting only one province only require the approval of that province). The Canada Act 1982 codified and affirmed many common-law rights into the Charter of Rights and Freedoms. The Charter was greatly inspired by the other documents such as the 1948 United Nations Universal Declaration of Human Rights. However, the Act also has a notwithstanding clause which allows the provinces to override certain provisions in the Charter. This clause was important in getting support from the provinces. The Act also recognized the treaty rights of the aboriginals and codified equalization. Rather than being an entirely new constitution, the 1982 act is an amendment of the 1867 BNA (renamed ‘Constitution Act, 1867’), and keeps the same governmental structure in place.
The executive authority is formally vested in the Queen and exercised by the Governor-General. He or she appoints the government, grants assent to laws, dissolves and prorogues Parliament and ceremonially performs many other roles, but is in reality a figurehead, acting almost exclusively on the advice of the government. The Governor General is appointed by the Queen for an unspecified term (usually five years) on the advice of the Prime Minister. The Governor-General has the power to dissolve and prorogue (meaning suspend) parliament with the only restriction being that parliament must meet at least once a year. Exercise of these prerogatives, especially prorogation, on the advice of prime ministers, has attracted significant controversy in recent years.
Canada has a parliamentary system. The government is responsible to the House of Commons. The government is formed through appointment of the Prime Minister by the Governor-General and appointment of the other ministers on the Prime Minister’s advice. The Prime Minister is the head of the cabinet and guides and controls the policies of the government. If one party has a majority, its leader is appointed as Prime Minister; when no party has held a majority, the leader of the largest party has almost always been appointed as Prime Minister, even though the Governor-General formally retains the discretion to appoint another, and could in theory be compelled to do so if a coalition of smaller parties was formed commanding a majority, although this possibility has been controversial. Ministers must be members of one of either house of parliament.
The Legislative branch
Parliament formally consists of the Queen, the Senate, and the House of Commons.
The Senate consists of 105 Senators, who are appointed by the Governor-General on the advice of the Prime Minister to serve until the mandatory retirement age of 75. Senators must be at least thirty years old, a natural born or naturalized subject of the Queen, have real or personal property worth $4,000 more than his debt, and own property in the division of appointment. Though effectively appointed by the federal government, Senators are appointed to represent the Provinces. The country is divided into four divisions, each represented by twenty-four Senators: (i) Ontario; (ii) Quebec; (iii) the Maritime Provinces (Nova Scotia – ten senators; New Brunswick – ten; Prince Edward Island – four); and (iv) the Western Provinces (Manitoba, British Columbia, Saskatchewan and Alberta – with six each). Newfoundland does not belong to any division, and is entitled to six Senators; the Yukon Territory, the Northwest Territories, and Nunavut are entitled to one each. Though Prime Ministers from time to time appoint Senators from opposition parties, they tend to appoint them from their own party, and the longer a party holds government the more the Senate is filled with members from its ranks. When there is a vacancy, there is nothing to compel the immediate appointment of a replacement, and so many seats may fall vacant for long periods of time.
The House of Commons currently consists of 338 members directly elected from single-seat districts by first-past-the-post. Seats are apportioned largely in proportion to the population of each province or territory, but with constitutionally-protected exception clauses which guarantee each province a number of seats no lower than its number of Senators and no lower than it had in 1985. This gives the smaller provinces a higher rate of representation in comparison to their population. Current legislation provides for a four-year term, but the Governor-General can still dissolve Parliament and call new elections on the advice of the Prime Minister.
The federal parliament can pass laws on any subject not reserved for the provincial governments. Financial bills must originate in the House of Commons – besides this limitation, the houses are formally equal with regards to legislative authority. In practice, however, due to the Senate’s lack of popular legitimacy and the fact that the government tends to have a Senate majority, it usually acts in deference to the decisions of the lower house. This is not always the case, however; in the 1980’s, the Progressive Conservative Party, led by Brian Mulroney, came into government after a long series of Liberal governments had made many appointments to the chamber, which, as a result, was dominated by the party. Despite their lack of popular legitimacy, Liberal Senate leaders challenged a number of the government’s key legislative proposals. The only formal constitutional recourse the government has in such a situation is to request the appointments of four or eight additional members (over the regular numbers as specified above), and this power was invoked by the Mulroney government, though this proved controversial.
The Highest court in Canada is the Supreme Court, which consists of nine justices. The Court was not established by the Canadian constitution but created by a separate Act. To be appointed a judge, a person must have been judge of a superior court of a province or a barrister or advocate for at least ten years standing at the bar of a province. At least three of the judges must be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province. All judges serve until the age of seventy-five.
New constitutional developments and challenges
One issue seen as a significant constitutional challenge is the position and powers of the Governor General as the Head of State. The Governor-General possesses extensive powers. However, as the position is effectively appointed by the Prime Minister and lacks democratic legitimacy, the Governor-General always follows the Prime Minister’s advice, leading to what some see as abuse of the office’s prerogative powers by the government. For example, in 2008, the Governor-General prorogued parliament at Prime Minister Harper’s request just ahead of a non-confidence vote the latter seemed sure to lose as the other three parties had joined together to form a coalition that could replace the Conservative minority government. The prorogation was controversial and drew large demonstrations against it and in favour of the coalition; but by the time parliament assembled again in early 2009 the coalition had fallen apart, with the Liberal party (after having had a change in leadership and being offered many concessions by the government) voting to allow Harper’s Conservative government to continue in office. Many would prefer clear restrictions on the government’s use of such powers written into the constitution; there were renewed protests when Parliament was prorogued in 2010. Another constitutional issue related to the fact that the Governor-General is the monarchy itself, which is seen by some as not wholly representative of the people.
Another challenge is the position of the Senate, which also lacks democratic legitimacy and a number of whose members have recently become embroiled in corruption scandals, which drew particular attention to its lack of accountability. Many have supported the idea of making the Senate an elected body, often combined with the idea of electing an equal number of Senators from each Province to counterbalance the weight of the most populous provinces of Ontario and Quebec. Two failed constitutional reform projects, the Meech Lake Accord in 1989 and Charlottetown Accord in 1992, which sought to amend various aspects of the Constitution through agreement between federal and provincial governments, included Senate reform proposals, though they would also have drastically reduced the chamber’s power. In 2013, the Conservative Harper government, eschewing a renewed failure to achieve constitutional reform project through the difficult procedure of securing the consent of Provincial governments, submitted a number of reference questions to the Supreme Court seeking clarity regarding which reforms it could enact on its own, including the idea of holding advisory elections to nominate Senators to the Governor-General. The Court advised that such a scheme would not be constitutional, and that the federal Parliament only had the authority to make minor reforms such as removing the Senate’s property-ownership requirement; more fundamental reforms of the Senate’s membership and powers would require the consent of the provincial legislatures. In 2015, the incoming Liberal government announced the formation of an advisory committee that will recommend appointments to Senate based on merit rather than partisan considerations. However, without an amendment to the Constitution these recommendations will remain non-binding and the Prime Minister will make the final decisions.
Another issue the Meech Lake and Charlottetown Accords attempted to resolve was the refusal of Quebec to sign on to the Constitution in 1982. Many Quebecois also desire constitutional recognition of Quebec’s status as a nation within Canada, as well as other concessions that would grant Quebec special status or autonomy. Quebec’s own status as part of Canada has also continued to attract attention over the years, even after a second referendum was held in 1995, in which, with a 93% voter turnout, independence for Quebec was defeated by a slim 1%.
System of Government under the 1867/1982 Constitution