Constitution Origins

Constitution of Canada Origins

Prior to 1867, the territory that would become Canada was administered by Great Britain. France had established colonies in Canada during the 17th century, and Britain had conquered these colonies in the 18th century. The British Parliament created the Dominion of Canada through the British North America Act of 1867 (now called the Constitution Act of 1867). The act included a statement that Canada has a “Constitution similar in Principle to that of the United Kingdom.” Consequently, Canada received many of its constitutional traditions from Britain, including parliamentary democracy and an independent judiciary.

However, the constitution of Canada differs from the British constitution in four important ways. First, most aspects of the British constitution are unwritten and depend upon tradition and convention, while most aspects of the Canadian constitution are written. Second, in the United Kingdom all legal authority can be traced to one source: the monarch in Parliament. In contrast, Canada is a federal state with power divided between the national government and the legislatures of the ten provinces and three territories. Third, Britain does not have a bill of rights as part of its constitution. In 1982 Canada incorporated the Charter of Rights and Freedoms into its constitution, which guarantees individual and group rights. Fourth, all British citizens are presumed to be equal under the law. In contrast, the constitution of Canada explicitly grants rights and privileges to minority groups and indigenous peoples.

It is often said that the Canadian constitution falls somewhere between the British and U.S. constitutions. Like the British constitution, significant parts of the Canadian constitution are unwritten, there is a fusion of executive and legislative power, and the British monarchy still plays a symbolic role in government. However, like the Constitution of the United States, the Canadian constitution defines a federal system, Canada’s courts have the power of judicial review, and Canadian citizens are assured fundamental rights of liberty and equality. (1)

The Constitution of Canada

From Nelson:

All laws, rules, and practices that structure the way the Canadian political system runs add up to the “constitution” of Canada. The Constitution includes a great many statutes, orders-in-council, and judicial decisions that interpret these documents. In addition, there are informal rules, called constitutional conventions, that regulate how our political actors behave. Finally, there are some traditions and customs that may not be obligatory but are followed.

When most people refer to the Constitution, they may be thinking of a subset of the rules that makes up the formal “Constitution of Canada.” Section 52(2) of the Constitution Act, 1982 outlines what documents are part of the formal Constitution. This is a special collection of rules, declared to be the “supreme law of Canada,” that takes precedence over any other law. The Constitution can only be changed according to the amending formulas set out in Part V of the Constitution Act, 1982 (see in the constitutional amendments entry). More than two dozen documents were included in the 1982 description of the Constitution, and since then six new constitutional amendments have been added to the list.

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

Law is our Passion

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This entry was last updated: February 14, 2017