Constitutional History of Canada

There are four well-defined periods in the constitutional development of Canada. The first of these was the period of arbitrary government, covering the whole of the French régime and the first third of a century of British rule in Canada proper. The second was the period of representative but irresponsible government, dating from 1759 in the case of Nova Scotia and from 1784 in the case of New Brunswick , but beginning with 1791 in the case of Upper and Lower Canada . The third was the period of responsible government, which began between 1840 and 1850, but which, in the case of old Canada , was based on the negation of the principle of “representation by population.” The last was the period of Confederation since 1867, in which the adoption of a federal system of government has been combined with both representative and responsible government, in ever increasing measure, both in the provinces and in the Dominion.

Source: W. Stewart WALLACE, “History, Constitutional”, in The Encyclopedia of Canada, Vol. 3, Toronto, University Associates of Canada, 1948, 396p., pp. 147-153.

Further Reading

• Sir William Ashley, Nine lectures on the earlier constitutional history of Canada (Toronto, 1889)
• E. Salone, La colonisation. de la Nouvelle France (Paris , 1906)
• R. D. Cahall, The Sovereign Council of New France (New York, 1915)
• F. Parkman, The old regime in Canada (Boston, 1880)
• Collection des documents relatifs à la Nouvelle France (4 vols., Quebec, 1883-5)
• Wits, ordonnances royaux (2 vols., Quebec, 1854-6)
• Jugements et délibérations du Conseil Souverain de la Nouvelle France (4 vols., Quebec, 1885-8)
• Jugements et délibérations du Conseil Supérieur de Quebec (2 vols., Quebec, 1889-91); Ordonnances des intendants (4 vols., Quebec Archives, 1919)
• Insinuations du Conseil Souverain (Quebec Archives, 1921)
• Sir John G. Bourinot, A manual of the constitutional history of Canada (Toronto, 2nd. ed., 1901)
• W., P. M. Kennedy, The constitution of Canada : An introduction to its development and law ( Oxford , 1922).
• W. Houston, Documents illustrative of the Canadian constitution (Toronto, 1891)
• H. E: Egerton and W. I. Grant, Canadian constitutional development (London , 1907)
• W. P. M. Kennedy, Statutes, treaties, and documents of the Canadian constitution (Oxford, 1930)
• A. Shortt and A. G. Doughty, Documents relating to the, constitutional history of Canada, 1759-1791 (2 vols., Ottawa, 191.8)
• A. G. Doughty and D. A. McArthur, Documents relating to the constitutional history of Canada, 1791-1818 (Ottawa, 1914)
• A. . G. Doughty and Norah Story, Documents relating to the constitutional history of Canada , 1819-1828 (Ottawa , 1935).

Constitutional History of Canada Explained

Chronology of the Constitution of Canada from 1926

In the context of our constitutional evolution, some relevant highlights are as follows:

1926 At the Imperial Conference, a committee chaired by Lord Balfour produced a declaration in principle on the constitution of the British Empire. The declaration defined the Dominions, including Canada, as autonomous communities within the Empire, standing on an equal footing with one another and not in any way subordinate in either external or internal affairs, although united in a common allegiance to the Crown, and associated freely as members of the British Commonwealth of Nations.

1927 A federal-provincial conference was held in Ottawa to discuss amending the Canadian Constitution. The federal government argued that it would be appropriate, given Canada’s new international status, to request the British Parliament to pass an act giving Canada the right to amend its own Constitution. The proposal was not approved by all the provinces.

1931 At the request of the Dominions, the British Parliament passed the Statute of Westminster, 1931, giving legal recognition to Canada’s independence while reserving the British Parliament’s power to amend the Canadian Constitution.

1940 At the request of both Houses of the Canadian Parliament, backed by the approval of all the provinces, the British Parliament passed a constitutional amendment placing unemployment insurance under federal jurisdiction.

1949 At Canada’s request, the British Parliament proceeded to patriate the British North America Act in part. The Parliament of Canada was granted a general power to amend the Canadian Constitution, except when the amendment pertained to the powers of the provincial legislatures (including those in the education field) the use of the French and English languages, the requirement that Parliament meet annually, and the maximum duration of a Parliament. The same year saw the abolition of appeals to the Judicial Committee of the Privy Council. The Supreme Court of Canada became the Court of last resort in all matters of Canadian law.

1950 A federal-provincial conference was convened to consider an amending formula applicable to matters of interest to both the federal and provincial governments.

1960 At Canada’s request and with the unanimous consent of the provinces, the British Parliament adopted an amendment providing for the retirement of Superior Court judges at 75 years of age.

1961 Following several meetings between Attorneys General, the federal government and a majority of provinces agreed on a constitutional amending formula (the “Fulton formula”) but there was no unanimity and the proposal was abandoned.

1964 At Canada’s request, and with the consent of all the provinces, the British Parliament enacted section 94A of the British North America Act in respect of old age pensions. During a conference in Charlottetown, the First Ministers unanimously accepted a new constitutional amending formula (known as the “Fulton-Favreau formula”), which closely resembled the 1961 proposal. However, the government of Quebec later withdrew its approval and this proposal, as well, was abandoned.

1965 Constitutional amendment enacted by the Parliament of Canada requiring Senators appointed after June 1, 1965 to retire at the age of 75.

1967 On the initiative of Premier John Robarts of Ontario, a provincial First Ministers’ conference was held in Toronto to discuss the confederation of the future.

1968 A first round of constitutional discussions was held in February 1968, on the initiative of Prime Minister Pearson, to examine the recommendations of the Bilingualism and Biculturalism Commission, the question of a Charter of Rights, regional disparities, and the timeliness of a general review of the Constitution.

At their meeting in February the First Ministers agreed to give priority to finding an amending formula and patriating the Constitution. They agreed in principle on a formula later known as the “Victoria formula”. Under the terms of its final version, consent would be required from all provinces having or having had in the past at least 25% of Canada’s total population, from two of the Atlantic provinces, and from two of the western provinces with at least 50% of the total population of the western provinces. The First Ministers also agreed to incorporate language rights into the Constitution. The existence and independence of the Supreme Court would be guaranteed by the Constitution, which would define the Court’s fundamental structure and recognize the importance of provincial participation in the process of selecting the justices. Finally, provisions would be added to define the federal and provincial government’s responsibilities in respect of regional disparity.

1971 Meeting in Victoria in June 1971, the First Ministers drew up a draft Canadian constitutional Charter embodying the consensus reached at February’s meeting, with the addition of a compromise on social policy. They agreed that the text was important enough to require approval from all the legislatures, approval which had to be given within 12 days. On June 23 the Premier of Quebec rejected the Victoria Charter.

1973 An administrative compromise between Ottawa and Quebec City on the issue of family allowances eliminated one of the obstacles that had blocked the way in Victoria.

1975 In April 1975, Prime Minister Trudeau and his provincial colleagues reached an agreement in principle on the timing of the patriation of the Constitution and the adoption of the Victoria amending formula.

1976 On March 31, 1976, Prime Minister Trudeau wrote letters to the provincial premiers setting out new constitutional proposals. Three options were offered. The least ambitious was pure and simple patriation of the Constitution, with unanimous consent of Parliament and the provincial legislatures for amendments to be required until a definitive formula could be agreed on. The second option would have patriated the Constitution in conjunction with adoption of the Victoria amending formula. The third and most far-reaching called not only for patriation but also for adoption of a constitutional proclamation essentially reproducing the consensus achieved in Victoria (an amending formula plus provisions on the Supreme Court, language rights, and regional disparities) and (at Quebec’s insistence) for two new provisions on protection of the French language and culture and on federal-provincial agreements.

Speaking on behalf of his fellow premiers, Premier Lougheed of Alberta responded that Mr. Trudeau had been ready in June 1976 to accept any proposal unanimously approved by the provinces, and stated that patriation, although desirable, should not be undertaken until a consensus could be reached on expanding the role and powers of the provinces. Among the issues on which the premiers had achieved unanimity were the following: greater provincial involvement in immigration; confirmation of the language rights of anglophones and francophones; subjection of the exercise of the declaratory power to the consent of the provinces concerned; inclusion in the Constitution of a requirement that conferences of the eleven First Ministers be held at least once a year.

The Parti québécois of René Lévesque came to power in the Quebec provincial elections held on November 15, 1976.

1977 Prime Minister Trudeau tabled an amended version of his 1976 proposals, noting in the process that in his opinion, patriation was a priority and must precede any changes to the power-sharing structure.

The federal government set up the Task Force on Canadian Unity, chaired by Jean-Luc Pépin and John Robarts.

1978 On June 12, 1978, the Prime Minister tabled a white paper entitled Time for Action. A proposed bill on constitutional reform (Bill C60), setting out the federal government proposals in detail, followed a week later. In the white paper, the federal government announced its intention of giving Canada a new Constitution before the end of 1981, by acting immediately in relevant areas that it believed to be under the sole jurisdiction of the national Parliament. It proposed to replace the Senate before July 1, 1979, with a House of the Federation, whose members would be chosen half by the House of Commons and half by the provincial legislatures. The provinces would be given a voice in the appointment of judges to the Supreme Court.

The provincial premiers expressed their disapproval of the action taken by the federal government and the federal government referred the legality of its proposed bill to the Supreme Court of Canada for its opinion.

1979 On November 1, the Quebec government tabled a white paper describing the new relationship with Canada it would be proposing to Quebeckers in a referendum planned for the following year.

On December 29, the Supreme Court of Canada ruled that the power to amend conferred by s. 91(1) of the British North America Act was limited to areas of federal jurisdiction affecting the federal government only. A number of the amendments suggested in Bill C60, in the opinion of the Court, did not fall within this definition.

1980 In the referendum, held on May 20, 1980, the Quebec government sought a mandate from the people to negotiate sovereignty association. The final results of the vote were: 40.4 percent YES and 59.6 percent NO. During the referendum campaign, Prime Minister Trudeau pledged to renew federalism.

1980-82 Meeting in Ottawa on June 9, 1980, the First Ministers set an agenda and gave their ministers responsible for constitutional issues a mandate to proceed with exploratory discussions over the summer. At the next First Ministers’ Conference, in September, in the midst of rumours that Ottawa was planning to take unilateral action, it became clear that no agreement would be possible between the federal government and the provinces. The federal government chose to proceed unilaterally, without securing the consent of a majority of the provinces. A draft resolution was tabled on October 2, 1980, that would, had it been passed by both Houses of Parliament and endorsed by the British Parliament, have patriated the Constitution, imposed an amending formula, and included a Charter of Rights subject to “reasonable limits”, which would have bound both levels of government. Strong opposition in the House of Commons, and doubts as to the legality of the procedure, led the federal government to refer its proposal to the Supreme Court of Canada. On September 28, 1981, the Court concluded in a majority ruling that the course of action proposed by the federal government was within the law; but was at the same time unconstitutional in that it ignored the conventions and the spirit of the federal system. The federal government called a further constitutional conference, which was held in Ottawa in early November. In the final hours of that meeting, the Prime Minister reached a compromise with the premiers of all the provinces except Quebec. The Accord of November 5, endorsed a month later, as slightly amended, by both Houses of Parliament, was enacted as The Canada Act by the British Parliament, and was proclaimed by the Queen on April 17, 1982.

1983 A constitutional amendment was adopted calling for the holding of two new federal-provincial conferences on the issue of native rights.

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This entry was last updated: February 15, 2017