Constitution Act, 1982

The Canadian Charter of Rights and Freedoms is the first Part of the Constitution Act, 1982. The Charter is a bill of rights to protect certain political rights, legal rights and human rights of people in Canada from the policies and actions of all levels of government. An additional goal of the Charter is to unify Canadians around a set of principles that embody those rights.[7][8] The Charter was preceded by the Canadian Bill of Rights, which was created by the government of John Diefenbaker in 1960. However, the Bill of Rights was only a federal statute and was limited in its effectiveness because it is not directly applicable to provincial laws. This motivated some within government to establish unambiguously-constitutional-level bill of rights for all Canadians. The movement for human rights and freedoms that emerged after World War II also wanted to entrench the principles enunciated in the Universal Declaration of Human Rights.[9] The Charter was drafted by the federal government with consultations with the provincial governments in the years leading up to the passage of the Constitution Act, 1982.

One of the most notable effects of the adoption of the Charter was to greatly expand the range of judicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Canadian Bill of Rights. The courts, when confronted with violations of Charter rights, have struck down unconstitutional statutes or parts of statutes, as they did when Canadian case law was primarily concerned with resolving issues of federalism. However, section 24 of the Charter granted new powers to the courts to enforce more creative remedies and to exclude improperly obtained evidence in criminal trials. These powers are greater than what was typical under the common law and under the principle of Parliamentary supremacy, which Canada had inherited from the United Kingdom.[10]

Section 59 limits the application of section 23 of the Charter in Quebec. Paragraph 23(1)(a) of the Charter, which guarantees the minority language education rights of Canadian citizens "whose first language learned and still understood is that of the English or French minority linguistic minority population of the province in which they reside" will not be in force in Quebec until the Quebec government or legislature chooses to ratify it.[lower-alpha 5][11]

Section 35 of the Constitution Act, 1982 "recognizes and affirms" the "existing" aboriginal and treaty rights in Canada. These aboriginal rights protect the activities, practice, or traditions that are integral to the distinct cultures of the aboriginal peoples. The treaty rights protect and enforce agreements between the Crown and aboriginal peoples. Section 35 also provides protection of aboriginal title which protects the use of land for traditional practices.

Subsection 35(2) provides that aboriginal and treaty rights extend to Indian, Inuit, and Métis peoples and subsection 35(4), which was added in 1983, ensures that they "are guaranteed equally to any male and female persons".

Subsection 35(3), which was also added in 1983, clarifies that "treaty rights" include "rights that now exist by way of land claims agreements or may be so acquired". As a result, by entering into land claims agreements, the government of Canada and members of an aboriginal people can establish new treaty rights, which are constitutionally recognized and affirmed.

There are other sections of the Constitution Act, 1982 that address aboriginal rights. Section 25 of the Charter provides that the guarantee of rights and freedoms in the Charter should not be understood to "abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada, including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired."

Section 36 enshrines in the Constitution a value on equal opportunity for the Canadian people, economic development to support that equality, and government services available for public consumption. Subsection 2 goes further in recognizing a "principle" that the federal government should ensure equalization payments.

Writing in 1982, Professor Peter Hogg expressed scepticism as to whether the courts could interpret and enforce this provision, noting its "political and moral, rather than legal" character.[12] Other scholars have noted section 36 is too vague.

Since the courts would not be of much use in interpreting the section, the section was nearly amended in 1992 with the Charlottetown Accord to make it enforceable. The Accord never came into effect.[13]

Subsection 52(3) of the Constitution Act, 1982 requires constitutional amendments to be made in accordance with the rules set out in the Constitution itself. Subsection 52(3) entrenches constitutional supremacy and prevents Parliament and the provincial legislatures from making most constitutional amendments using simple legislation.

The rules for amending Canada's constitution are quite dense. They are mostly laid out in Part V of the Constitution Act, 1982.

There are five different amendment procedures, each applicable to different types of amendments. These five formulas are:

1. The general procedure (the "7/50" procedure) – section 38. The amendment must be passed by the House of Commons, the Senate, and at least two-thirds of the provincial legislative assemblies representing at least 50% of the total population of the provinces. This is the default procedure and it covers any amendment procedure not covered more specifically in sections 41, 43, 44 or 45. The general formula must be used for any of the six situations identified in section 42.
2. The unanimity Procedure – section 41. The amendment must be passed by the House of Commons, Senate, and all provincial legislative assemblies.
3. The special arrangements procedure (somewhat inaccurately referred to as the "bilateral" or "some-but-not-all-provinces" procedure) – section 43. The amendment must be passed by the House of Commons, the Senate, and the legislative assemblies of those provinces that are affected by the amendment.
4. Federal Parliament Alone (or "federal unilateral" procedure) – section 44. The amendment must only be passed by Parliament under its ordinary legislative procedure.
5. Provincial Legislature Alone (or "provincial unilateral" procedure) – section 45. The amendment must only be passed by the provincial legislature under its ordinary legislative procedure.

Neither aboriginal peoples' or the territories' agreement is required to make a constitutional amendment, even if it affects their interests. Section 35.1 commits the governments of Canada and the provinces "to the principle that, before any amendment is made [to subsection 91(24) of the Constitution Act, 1867, section 25 of the Charter or sections 35 or 35.1 of the Constitution Act, 1982]" that the Prime Minister will convene a conference of first ministers (i.e. provincial premiers) to discuss the amendment and invite "representatives of the aboriginal peoples of Canada" to discuss the amendment. Section 35.1 was added to Part II of the Constitution Act, 1982 in 1983. Section 35.1 was invoked in the negotiations that led to the Charlottetown Accord, which would have greatly expanded aboriginal rights and recognized a right to self-government.

Various other sections of Part V lay out such things as compensation for opting out, when and how a province may opt out of a constitutional amendment, and time limits for achieving a constitutional amendment.

Subsection 52(1) of the Constitution Act, 1982 provides that the Constitution of Canada is the "supreme law of Canada", and that "any law inconsistent with the provisions of the Constitution of Canada is, to the extent of the inconsistency, of no force or effect."[14] A law that is inconsistent with the Constitution is theoretically of no force or effect from the moment it is made.[15] In practical terms, however, such a law is not seen to be invalid until a court declares it to be inconsistent with the provisions of the Constitution. The executive cannot enforce a law that a court has declared to be without force or effect. But only Parliament or a provincial legislature can repeal such a law.

Before the 1982 Act came into effect, the British North America Act, 1867 (now known as the Constitution Act, 1867) had been the supreme law of Canada. The supremacy of the 1867 Act had originally been established by virtue of s. 2 of the Colonial Laws Validity Act,[16] a British Imperial statute declaring the invalidity of any colonial law that violated an Imperial statute extending to a colony. Since the British North America Act was an Imperial statute extending to Canada, any Canadian law violating the BNA Act was inoperative. Although there was no express provision giving the courts the power to decide that a Canadian law violated the BNA Act and was therefore inoperative, this power was implicit in s. 2 of the Colonial Laws Validity Act, which established the priority of statutes to be applied by the courts.

In 1931, the British Parliament enacted the Statute of Westminster, 1931. This Act provided that the Colonial Laws Validity Act no longer applied to the British Dominions, including Canada.[17] However, it provided that Canada could not amend the British North America Act,[18] which remained subject to amendment only by the British Parliament. This provision maintained the supremacy of the British North America Act in Canadian law until the enactment of the Constitution Act, 1982.

Section 56 of the Act provides that the parts of the Constitution that were enacted in English and French are equally authoritative, and section 57 adds that the English and French versions of the Constitution Act, 1982 itself are equal. Section 57 is akin section 18 of the Charter, which provides that English and French versions of federal and New Brunswick statutes are equal.[20] The Supreme Court has interpreted section 133 of the Constitution Act, 1867 and section 23 of the Manitoba Act, 1870 to mean that the English and French versions of federal, Quebec and Manitoba statutes are equal.[21][22]

Despite sections 56 and 57, significant portions of the Constitution of Canada were only enacted in English and even if there exist unofficial French translations, their English versions alone have force of law. To address this problem, section 55 requires that the federal Minister of Justice prepare "a French version of the…Constitution of Canada as expeditiously as possible." The Minister of Justice established a French Constitution Drafting Committee in 1984, which prepared French versions of the Constitution, and presented them to the Minister in 1990.

Section 55 also requires that "when any portion thereof sufficient to warrant action being taken has been so prepared, it shall but put forward for enactment by proclamation issued by the Governor General under the Great Seal of Canada pursuant to the procedure then applicable to an amendment of the same provisions of the Constitution of Canada." No action has been taken to put forward the French version for enactment. The reference to a proclamation by the Governor-General implies that some combination of the general, unanimity and special arrangements procedures would be required to enact the French version. Although the intention was presumably that the government of Canada would do so by introducing an amendment resolution in the House of Commons, a Senator or a provincial government could presumably do so since, under section 46, such amendments "may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province".

The patriation of the Canadian constitution set an example for similar actions by Australia and New Zealand. In 1985 and 1986, the Australian and British parliaments passed the Australia Act 1986. The Australian High Court subsequently recognized that the Act established Australia as an independent country, making Britain a foreign power. New Zealand experienced a constitutional crisis in 1984, which led to a desire for constitutional reform. The New Zealand Parliament patriated its own constitution in the Constitution Act 1986. Unlike Canada, New Zealand already had the right to amend its own constitution, so there was no corresponding British legislation.

• Canadian sovereignty

• Dodek, Adam M. 2018. The Charter Debates: The Special Joint Committee on the Constitution 1980–81 and the Making of Canadian Charter of Rights and Freedoms. Toronto: University of Toronto Press.
• Harder, Lois, and Steve Patten, eds. 2016. Patriation and its Consequences. Vancouver: University of British Columbia Press.
• Petter, Andrew. 2010. The Politics of the Charter: The Illusive Promise of Constitutional Rights. Toronto: University of Toronto Press.
• Heard, Andrew. 2014. Canadian Constitutional Conventions: The Marriage of Law and Politics (2nd ed). Oxford: Oxford University Press.
• Hiebert, Janet. 2002. Charter Conflicts: What is Parliament's Role? Kingston: McGill-Queen's University Press.
• Hogg, Peter W. 2007. Constitutional Law of Canada (5th ed.). Toronto: Carswell.
• Hurley, James Ross. 1996. Amending Canada's Constitution: History, Processes, Problems and Prospects. Ottawa: Minister of Supply and Services.
• Emmett Macfarlane, ed. 2016. Constitutional Amendment in Canada. Toronto: University of Toronto Press.
• Macklem, Patrick. 2001. Indigenous Difference and the Constitution of Canada. Toronto: University of Toronto Press.
• Manfredi, Christopher P. 2000. Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (2nd ed.). Oxford: Oxford University Press.
• McCormick, Peter J. 2014. The End of the Charter Revolution: Looking Back from the New Normal. Toronto: University of Toronto Press.
• Monahan, Patrick, Byron Shaw, and Padraic Ryan. 2017. Constitutional Law (5th ed.) Toronto: Irwin Law.
• Pelletier, Benoît. 1996. La modification constitutionnelle au Canada. Toronto: Carswell.
• Régimbald, Guy, and Dwight Newman. 2017. The Law of the Canadian Constitution. (2nd ed.). Toronto: LexisNexis.
• Russell, Peter H. 2004. Canada's Constitutional Odyssey (3rd ed.) Toronto: University of Toronto Press.
• Roach, Kent. 2016. The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (2nd ed.) Toronto: Irwin Law.
• Sharpe, Robert J., and Kent Roach. 2017. The Charter of Rights and Freedoms (6th ed.). Toronto: Irwin Law.
• Strayer, Barry L. 2013. Canada's Constitutional Revolution. Edmonton: University of Alberta Press.
• Webber, Jeremy. 2015. The Constitution of Canada: A Contextual Analysis. London: Hart Publishing.

Wikisource has original text related to this article:

Constitution Act, 1982

• Full text of The Constitution Act, 1982 at Department of Justice Canada
• Building a Just Society: A Retrospective of Canadian Rights and Freedoms at Library and Archives Canada
• "Constitution Act, 1982" from the Canadian Encyclopedia