Constitution Documents in Canada

Constitution of Canada Major Elements Documents

The two main documents that form the trunk of the Canadian constitution are the Constitution Act of 1867 (see the entry) and the Constitution Act of 1982 (see the entry). These acts are rooted in English common law that evolved from the 12th century onward. Key British principles, such as the rule of law and the promise of an independent judiciary, were transplanted into the Canadian constitution.

By the 1700s both France and England had established many colonies in areas that are now a part of Canada. Britain fought with France for control of its colonies, called New France, and won in the 1760s. By the terms of the Treaty of Paris, signed in 1763, most of New France was ceded to Britain. Under British rule, the colonies’ first constitutional document was the Royal Proclamation of 1763, which established colonial governors and recognized the sovereignty of aboriginal peoples. The proclamation did not satisfy the contending interests of British loyalists and the large French-speaking population. Several other acts were passed that attempted to address these shortcomings, including the Quebec Act of 1774, the Constitutional Act of 1791, and the Act of Union of 1840. But conflict continued between British loyalists and the descendants of French colonists. (1)

In General

“Unlike the majority of countries whose basic law derives from one document, Canada’s basic law derives not only from a set of documents known as Constitution Acts, but also a set of unwritten laws and conventions. This comprises of all the acts passed since 1867 up to and including 2001. As a result, all constitutional documents during that time period have the force of law. This is analogous to laying a foundation (Constitution Act, 1867) and then building upon it and modifying it as the need arises (the successive Acts and Orders). (…)

There are other documents that relate to Canada’s development as a country, such as those predating Confederation, which do not hold the force of law, as each act was superseded by the other until the passing and proclamation of the Constitution Act, 1867. Some of these documents include the Charter of Hudson’s Bay, the Royal Proclamation, 1763 and the Quebec Act, 1774.

Also, in recent history there have been several proposals (among them the Victoria Charter, the paper A Time for Action, a draft preamble, the Meech Lake Accord and the paper Shaping Canada’s Future Together (Charlottetown Accord)) to amend the constitution which either failed to get ratified or were rejected during the original process of drafting the “patriation” formula. Of course, such proposals wouldn’t be complete without some committee reports.

Amongst those documents cited, there are other important documents worth mentioning also, that have to do in one way or another with the development of Canada’s constitution, as well as that of the country. A few of these are the London Resolutions of 1866 and the Quebec Sign Law, Bill 178 of 1988, as well as the Federal law binding Parliament to use a self-imposed constitutional amending formula.” (William F. Maton)

Provincial Constitutional Documents

For information on Provincial Constitutional Documents, please click here.

Canadian Constitutional Documents

Besides the Constitution Act, 1982 (Part of the Canada Act, 1982) and the Constitution Act, 1867 (Formerly known as the British North America Act, 1867), the main Canadian Constitutional Documents are the following:

• Rupert’s Land Act, 1868: A British Law empowering the Queen to accept all lands belonging to the Hudson’s Bay Company and the North-Western Territory (as it was then called) become, at a later date and at the United Kingdom’s discretion, part of the Dominion of Canada.
• Temporary Government of Rupert’s Land Act, 1869: Allowed the government of Canada to create a temporary government for Rupert’s Land when it was admitted into the union.
• Manitoba Act, 1870: Created the Province of Manitoba and established its government.
• Rupert’s Land and North-Western Territory Order (see the entry).
• British Columbia Terms of Union (Formerly Order of Her Majesty in Council admitting British Columbia into the Union): Admitted British Columbia as a Province into the Dominion of Canada.
• Constitution Act, 1871 (Formerly British North America Act, 1871): Gave Parliament the power to create new provinces out of the Northwest Territories (then recently acquired from the Hudson’s Bay Company and the Queen).
• Prince Edward Island Terms of Union: Admitted Prince Edward Island as a Province into the Dominion of Canada: Amended by the Constitution Amendment Proclamation, 1993 (Prince Edward Island).
• Parliament of Canada Act, 1875: Clarified the power of the Canadian Parliament to legislate over, “privileges, immunities, and powers of,” its members.
• Adjacent Territories Order: Admitted all remaining territories of British North America surrounding Canada (except Newfoundland) into Canada.
• Constitution Act, 1886 (Formerly British North America Act, 1886): Allowed parliamentary representation for citizens residing in the Territories.
• Canada (Ontario Boundary) Act, 1889: Extended the boundaries of Ontario.
• Statute Law Revision Act, 1893: A general law repealing certain ‘spent’ (obsolete) laws, including 10 ‘spent’ sections in the Constitution Act, 1867.
• Canadian Speaker (Appointment of Deputy) Act, 1895, Session 2 (Repealed by the Constitution Act, 1982): A technical act which confirmed the validity of another law regarding the Deputy Speaker of the Senate.
• Yukon Territory Act, 1898: Created the Yukon Territory, separate from the, “North­west Territories”. Provided for its government and court system.
• Alberta Act, 1905 (Formerly The Alberta Act, 1905): Created the province of Alberta. (see the schedules in this Entry).
• Saskatchewan Act, 1905 (Formerly The Saskatchewan Act, 1905): Created the province of Saskatchewan. This law is exactly the same as the Alberta Act, except where it pertains to Saskatchewan.
• Constitution Act, 1907 (Formerly British North America Act, 1907): Amended the federal-provincial transfer payment schedule.
• Constitution Act, 1915 (Formerly British North America Act, 1915): Readjusted the number of seats in the Senate from 72 to 96.
• British North America Act, 1916 (Repealed by Statute Law Revision Act, 1927): Extended the term of the Twelfth Parliament during World War I.
• Statute Law Revision Act, 1927: An general bill that repealed a number of Acts, including the British North America Act, 1916.
• Constitution Act, 1930: A collection of Agreements made with the provinces of British Columbia, Alberta, Saskatchewan and Manitoba which transfered all rights and interests of certain natural resources.
• Statute of Westminster, 1931: Removed legislative authority of Parliament in the United Kingdom over the Dominions (Canada, Australia, New Zealand, South Africa, and Newfoundland), with the following exception: As the Canadian delegation had been unable to settle on an amending formula, the existing scheme (i.e. a simple British law, subject to amendment by the U.K.) was retained.
• Constitution Act, 1940 (Formerly British North America Act, 1940): Gave the Federal Government under Parliament the power to legislate laws repealing unemployment insurance.
• British North America Act, 1943 (Repealed by the Constitution Act, 1982): Delayed the decennial re-adjustment of the seats in the House of Commons until World War II was over.
• British North America Act, 1946 (Repealed by the Constitution Act, 1982): Changed section 51 of the Constitution Act, 1867, to bring the number of members in the House of Commons to 255.
• Letters Patent Constituting the Office of Governor General of Canada (see the entry).
• Newfoundland Act (Formerly British North America Act, 1949): Admitted the last British North American colony to the Dominion of Canada, making it the tenth province. Gave religious entities special power over education, according to Term 17, which was the subject of a referendum in 1995.
• British North America (No. 2) Act, 1949 (Repealed by the Constitution Act, 1982): Gave the Parliament of Canada limited powers to amend the Constitution of Canada.
• Statute Law Revision Act, 1950: A very broad Act which repealed many laws enacted by the Parliaments of England, Great Britain, and the United Kingdom, some dating from before 1800. In Canada’s case, section 118 of the Constitution Act, 1867, was repealed.
• British North America Act, 1951 (Partially repealed by the Constitution Act, 1964, Repealed by the Constitution Act, 1982): Gave the Federal government the power to enact laws regarding old age pensions, such as, e.g. Canada Pension Plan.
• British North America Act, 1952 (Repealed by the Constitution Act, 1982): Changed section 51 of the Constitution Act, 1867, to bring the number of members in the House of Commons to 263.
• Constitution Act, 1960 (Formerly British North America Act, 1960): Changed the length of term of office for superior court judges (including those of the Supreme Court) to 75 years of age instead of for-life.
• Constitution Act, 1964 (Formerly British North America Act, 1964): Gave Parliament the power to legislate laws regarding old age pensions.
• Constitution Act, 1965 (Formerly British North America Act, 1965): Changed the length of term of office for Senators to 75 years of age instead of for-life.
• Constitution Act, 1974 (Formerly British North America Act, 1974): Changed the rules for calculating the number of MPs to sit in the next Parliament.
• Constitution Act (No. 1), 1975 (Formerly British North America Act (No. 1), 1975): Gave the Yukon and Northwest Territories representation in the House of Commons.
• Constitution Act (No. 2), 1975 (Formerly British North America Act (No. 2), 1975): Increased the number of Senators from 110 to 112. Gave the Yukon and Northwest Territories representation in the Senate with one member each.
• Miscellaneous Statue Law Revision Act, 1977: A law which made some technical corrections to the Representation Act, 1974 (making it the Constitution Act, 1974 (Formerly British North America Act, 1974)) and Northwest Territories Representation Act (making it the Constitution Act (No. 1), 1975 (Formerly British North America Act (No. 1), 1975))
• Canada Act, 1982: Last Act of the United Kingdom Parliament containing the English and French versions of the Constitution Act, 1982. From that time on, the United Kingdom Parliament relinquishes the power to affect any Canadian laws, including the Constitution.
• Proclamation, bringing into force the Constitution Act, 1982 (Can.): The Document that the Queen signed at Parliament Hill making the Constitution Act, 1982, law.
• Constitution Amendment Proclamation, 1983: Entrenched the recognition of rights obtained under aboriginal land claims agreements. Committed all governments to invite aboriginal and territorial government representatives to conferences on issues related to them.
• Constitution Act, 1985 (Representation): Replaced section 51 of the Constitution Act, 1867. It did away with the old, complex formula that the Mulroney government claimed would have created too many House of Commons seats, therefore costing more money.
• Constitution Amendment, 1987 (Newfoundland Act): Amended Term 17 of the Newfoundand Act (formerly the Terms of Union of Newfoundland with Canada) to include rights and privileges of more denominational schools.
• Constitution Amendment Proclamation, 1993 (New Brunswick Act): Amends the Charter of Rights and Freedoms to include the equality of the French and English linguistic communities in New Brunswick. Includes a provision for the New Brunswick legislature and government to “preserve and promote the status, rights and privileges,” of those communities.
• Constitution Amendment Proclamation, 1993 (Prince Edward Island): Amends the Prince Edward Island Terms of Union to recognize that the province can levy tolls for the use of a, “fixed crossing joining the Island to the mainland.” (Specifically, Confederation Bridge.)
• Constitution Amendment Proclamation, 1997 (Newfoundland Act): Repeals and replaces Term 17 of the Newfoundland Act. Allows the government of Newfoundland to take control of establishing and continuing denominational and nondenominational schools. Proposal of the amendment was approved by provincial referendum in the Fall of 1995.
• Constitution Amendment, 1997 (Quebec): Added Section 93A to the Constitution Act 1867, which excludes Quebec from the section relating to the organization of schools in the province (section 93). This gives it the sole power to determine the system of education used there. Chief motive was to allow Quebec to reorganize the school boards along linguistic lines.
• Constitution Act, 1998 (Newfoundland Act): Repeals and replaces Term 17 of the Newfoundland Act. Further refines the issue of denominational schools in Newfoundland. There is no mention of denominational schools, so a single school system can be established. Courses in religion are guaranteed, including religious observances at the request of parents.
• Constitution Act, 1999 (Nunavut): Amends the Constitution Act, 1867, to raise the number of senators to 105 from 104, to allow Nunavut to be represented by one Senator. Also raises the maximum number of Senators to 113 from 112. Determines the fate of the current Senator from the Northwest Territories. Amends section 51(2) so that Nunavut is represented by one member of Parliament. Will come into force on the same day as the Nunavut Act, on April 1, 1999.
• Constitution Amendment, 2001 (Newfoundland and Labrador): Officially changes the name of the Province of Newfoundland to the “Province of Newfoundland and Labrador”. Amends The Terms of Union of Newfoundland with Canada to reflect the changes.

In this Section

• Constitution
• Constitution Origins
• Constitution Major Elements
• Constitution Documents
• Constitution Act of 1867
• Constitution Act of 1982
• Constitution Conventions
• Constitution Interpretation and Enforcement

Resources

Notes and References

1. Encarta Online Encyclopedia

See Also