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Editorial

Editorial: Newfoundland’s Contribution to the Patriation of the Constitution

In the decades since 1982, politicians and the media have recounted the same story about the patriation of Canada’s constitution and the adoption of the Charter of Rights and Freedoms. Most of the credit in this version goes to Prime Minister Pierre Trudeau. Three others are credited with breaking an impasse in the 1981 negotiations: federal justice minister Jean Chrétien, Saskatchewan attorney general Roy Romanow, and Ontario attorney general Roy McMurtry. But in his memoirs, former Newfoundland PremierBrian Peckford argues that the key intervention in the patriation process came from Peckford and the members of the Newfoundland delegation.

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Crown

In a monarchy, the Crown is an abstract concept or symbol that represents the state and its government. In a constitutional monarchy such as Canada, the Crown is the source of non-partisan sovereign authority. It is part of the legislative, executive and judicial powers that govern the country. Under Canada’s system of responsible government, the Crown performs each of these functions on the binding advice, or through the actions of, members of Parliament, ministers or judges. As the embodiment of the Crown, the monarch — currently Queen Elizabeth II — serves as head of state. The Queen and her vice-regal representatives — the governor general at the federal level and lieutenant-governors provincially — possess what are known as prerogative powers; they can be made without the approval of another branch of government, though they are rarely used. The Queen and her representatives also fulfill ceremonial functions as Head of State.

Editorial

Editorial: The Statute of Westminster, Canada's Declaration of Independence

In the fall of 1929, Canada’s Minister of Justice, Ernest Lapointe, travelled to England. He took with him Dr. Oscar Skelton — the “elder statesman” of the Canadian civil service, as William Lyon Mackenzie Kingonce described him. When Lapointe and Skelton were done their negotiations, they had confirmed that Canada would have its independence from the British Empire.

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Dominion of Canada

Dominion of Canada is the country’s formal title, though it is rarely used. It was first applied to Canada at Confederation in 1867. It was also used in the formal titles of other countries in the British Commonwealth. Government institutions in Canada effectively stopped using the word Dominion by the early 1960s. The last hold-over was the term Dominion Day, which was officially changed to Canada Day in 1982. Today, the word Dominion is seldom used in either private or government circles.

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Statute of Westminster, 1931

The Statute of Westminster is a British law that was passed on 11 December 1931. It was Canada’s all-but-final achievement of independence from Britain. It enacted recommendations from the Balfour Report of 1926, which had declared that Britain and its Dominions were constitutionally “equal in status.” The Statute of Westminster gave Canada and the other Commonwealth Dominions legislative equality with Britain. They now had full legal freedom except in areas of their choosing. The Statute also clarified the powers of Canada’s Parliament and those of the other Dominions. (See also Editorial: The Statute of Westminster, Canada’s Declaration of Independence.)

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Senate of Canada

The Senate is the Upper House of Canada’s Parliament. Its 105 members are appointed and hold their seats until age 75. The Senate’s purpose is to consider and revise legislation; investigate national issues; and most crucially according to the Constitution, give the regions of Canada an equal voice in Parliament. The Senate is a controversial institution. It has long been regarded by many Canadians as a place of unfair patronage and privilege. An unresolved debate continues about whether it should be reformed into an elected body accountable to the voters, or abolished.

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Patriation Reference

The Patriation Reference, formally known as Re: Resolution to Amend the Constitution, was a reference case of the Supreme Court of Canada. On 28 September 1981, the court decided that it was legal for the federal government to patriateand amend Canada’s Constitution without the consent of the provincial governments. But it also found that to do so in areas that affect provincial powers would be a breach of constitutional convention. The court’s decision concluded that such conventions are of great significance. In the words of the court, “Constitutional convention plus constitutional law equal the total constitution of the country.”

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Notwithstanding Clause

Section 33 of the Canadian Charter of Rights and Freedoms is known as the notwithstanding clause. Also known as the override clause, it is part of the Constitution of Canada. The clause allows federal, provincial or territorial governments to temporarily override, or bypass, certain Charter rights. These overrides are subject to renewal after five years. Although the clause is available to governments, its use is politically difficult and therefore rare. It is known colloquially as the “nuclear option,” because its use is considered extremely severe. Since the Constitution was patriated in 1982, the clause has been used only a handful of times by various provinces. The federal government has never invoked the clause.

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Indigenous Peoples and Government Policy in Canada

For most of the history of political interaction between Indigenous people and the Canadian government (and its colonial predecessors) government policy has focused on First Nations. The Inuit were barely acknowledged until the 1940s, while special responsibility for Métis and Non-Status Indians was largely denied until 2016. The early history of Indigenous policy in Canada is characterized by the presence of both France and Britain as colonizing powers. British colonial policy acknowledged Indigenous peoples as sovereign nations. Post-Confederation Canadian Indigenous policy, until the 1960s, was based on a model of assimilation, with one of its main instruments being the Indian Act. Since the late 1960s, government policy has gradually shifted to a goal of self-determination for Indigenous peoples, to be achieved through modern-day treaties and self-government agreements.

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Administrative Law in Canada

Administrative law is one of three basic areas of public law dealing with the relationship between government and its citizens; the other two are constitutional law and criminal law. (See also Rule of Law.) Administrative law ensures that government actions are authorized by Parliament or by provincial legislatures, and that laws are implemented and administered in a fair and reasonable manner. Administrative law is based on the principle that government actions must (strictly speaking) be legal, and that citizens who are affected by unlawful government acts must have effective remedies. A strong administrative law system helps maintain public confidence in government authority.

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Canadian Charter of Rights and Freedoms (Plain-Language Summary)

The Charter of Rights and Freedoms is an important part of Canada’s Constitution. Among other things, constitutions outline the rules and laws of a country. They also outline the kind of government a country has and how it should work. A right is something a person has. It is also something a person can do.

(This article is a plain-language summary of the Charter. If you are interested in reading about this topic in more depth, please see our full-length entry, Canadian Charter of Rights and Freedoms.)

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Federalism in Canada

Federalism is a political system in which government power and responsibility is divided between a federal legislature and state or provincial legislatures. A true federation, in the modern sense, is a state in which the smaller parts are not sovereign and cannot legally secede. In practice, Canadian federalism has swung between the extremes of centralizing control and decentralizingit. The federal government has jurisdiction over the entire country. Each provincial government has jurisdiction over its portion of the population and region. Both levels of government get their authority from Canada’s written Constitution; but it includes features that are incompatible with a strict approach to federalism. Canadian federalism has been tested throughout the country’s history. It remains a subject of great debate.

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Constitution Act, 1982

The Constitution Act, 1982 is a landmark document in Canadian history. It achieved full independence for Canada by allowing the country to change its Constitution without approval from Britain. It also enshrined the Charter of Rights and Freedoms in Canada’s Constitution, the highest law of the land. The Act was passed after a fierce, 18-month political and legal struggle that dominated headlines and the agendas of every government in the country. (See Patriation of the Constitution.)

Editorial

Editorial: The Canadian Constitution Comes Home

In April 1982, as an Ottawa winter turned to spring, Queen Elizabeth II made her eleventh visit to Canada. She had come to make it official. After more than a half-century of trying, Canada would have its own constitution. A Canadian-made constitution was unfinished business from the country’s colonial past. The British North America Act in 1867 set out the jurisdictions of the federal and provincial governments and created the Dominion of Canada. It was, however, a law of the British Parliament, and it could only be amended (changed) by the British.

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Balfour Report

The Balfour Report of 1926 was an important document in Canada’s evolution to become a fully self-governing nation. The report declared that Britain and its Dominions were constitutionally equal. The findings of the report were made law by the British Parliament in the 1931 Statute of Westminster. This was the founding document of the modern Commonwealth. Canada remained linked to Britain politically. But legal power shifted decisively to the Canadian Parliament and its prime minister. This shift quickly led to an independent Canadian foreign policy and to the creation of its diplomatic service. It took several decades before Canada assumed all of its other powers under the Statute.

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Patriation of the Constitution

In 1982, Canada fully broke from its colonial past and “patriated” its Constitution. It transferred the country’s highest law, the British North America Act (which was renamed the Constitution Act, 1867), from the authority of the British Parliament to Canada’s federal and provincial legislatures. The Constitution was also updated with a new amending formula and a Charter of Rights and Freedoms. These changes occurred after a fierce, 18-month political and legal struggle that dominated headlines and the agendas of every government in the country.

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Constitution of Canada

The Constitution of Canada is the country’s governing legal framework. It defines the powers of the executive branches of government and of the legislatures at both the federal and provincial levels. Canada’s Constitution is not one document; it is a complex mix of statutes, orders, British and Canadian court decisions, and generally accepted practices known as constitutional conventions. In the words of the Supreme Court of Canada, “Constitutional convention plus constitutional law equal the total constitution of the country.” The Constitution provides Canada with the legal structure for a stable, democratic government.