Constitution of Canada

 I  INTRODUCTION

Constitution of Canada, group of written documents and unwritten conventions that outline the political and legal foundations of Canadian society. The constitution of Canada identifies the country’s political boundaries, describes fundamental rights guaranteed to Canadian citizens, and defines rules and procedures that guide the country’s political and legal systems.

II  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.

III  MAJOR ELEMENTS

Canada’s constitution consists of written documents and unwritten conventions. The written documents are a series of treaties, proclamations, and statutes that commit British and Canadian governments to a set of basic rules and principles. There are approximately 30 written constitutional documents, some written in the 19th century, others created during the late 20th century. Because Canada’s constitution is composed of many parts and has been revised over the course of many decades, it is often compared to a “living tree.” The constitution of Canada has many more parts than the Constitution of the United States, which consists of just one primary document. Unlike colonial America’s sudden separation from the British Empire, Canada’s separation from the United Kingdom has been slow and peaceful, evolutionary rather than revolutionary. Canada’s many constitutional documents reflect this process of negotiated separation. Also, the Canadian provinces—especially Québec—have never been comfortable with the powers possessed by Canada’s federal government and have continually sought to renegotiate the balance of power defined by the constitution. Constitutional documents tend to be formal, rigid, and difficult to amend. But a living tree needs to be flexible to adapt to the winds of change. Conventions fulfill this function. Conventions are informal practices that develop to suit changing social, economic, and political conditions. A Documents The two main documents that form the trunk of the Canadian constitution are the Constitution Act of 1867 and the Constitution Act of 1982. 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. A1 Constitution Act of 1867 In 1866 representatives from what are now the provinces of Nova Scotia, New Brunswick, Ontario, and Québec agreed to create the Dominion of Canada. The union’s members wanted to build a strong economy and counteract expansionism by the United States. This agreement was passed into law by the British Parliament as the British North America Act of 1867, later renamed the Constitution Act of 1867. The Constitution Act of 1867 had five key features. First, it unified the Canadian colonies. (Since 1867 six provinces and three territories have joined the original four provinces in the union.) Second, the act established executive, legislative, and judicial branches of government. Third, it established an independent judiciary. Fourth, it guaranteed minority language rights. Fifth, and most importantly, it constructed Canada as a federal state. This meant that there were two levels of government: a central government based in Ottawa, Ontario, Canada, and the governments of the various provinces. The original intent of the “fathers of confederation” was that most power and authority would be given to the central government, with only minor powers retained by the provinces. The Constitution Act of 1867 authorized the federal government to make laws concerning “peace, order and good government,” criminal law, trade and commerce, taxation, the judiciary, the military, and banking. The primary focus of provinces’ authority under the Constitution Act was “property and civil rights within the province” and “matters of a mainly local or private nature.” This attempt to centralize power in the federal government ultimately failed. Today, Canada is recognized as one of the most decentralized federal nations in the world. One significant problem with the Constitution Act of 1867 was that it required any amendments to the Canadian constitution to be approved by the British government. It was very difficult to modify the constitution to keep pace with the changing needs of Canadian society. These problems were ultimately resolved by the Constitution Act of 1982. A2 Constitution Act of 1982 The Constitution Act of 1982 patriated Canada’s constitution, allowing Canadian lawmakers to amend the constitution without significant involvement by the United Kingdom. It also established procedures that made it somewhat easier to pass constitutional amendments. Before the act was passed, no amendments could be made without the unanimous consent of the provinces. The Constitution Act of 1982 established the so-called 7 and 50 rule, which allows amendments to the Canadian constitution if seven provinces representing at least 50 percent of Canada’s population agree to the changes. The Constitution Act of 1982 included guarantees of individual and group rights, collectively called the Canadian Charter of Rights and Freedoms. The act also recognized the rights of Canada’s indigenous people. The leaders of the province of Québec refused to endorse the new constitution. They objected to the provisions of the new constitution and the process by which it was drafted. Most of Québec’s residents are descendants of French colonists, and its leaders wanted concessions in the new constitution that recognized and preserved the province’s unique culture. There have been several attempts to amend the constitution to acknowledge Québec’s status as a “distinct society” and to grant it greater authority than other provinces. These changes were formally proposed in the Meech Lake Accord of 1987 and the Charlottetown Accord of 1992. Neither of these proposals resulted in changes to the Canadian constitution, mainly because of opposition from the Canadian public. The Meech Lake Accord was never ratified, and the Canadian public rejected a referendum to enact the Charlottetown Accord. B Conventions Two key conventions associated with the constitution relate to the role of the Supreme Court of Canada and the commitment to responsible government. Although the role of the Supreme Court is not precisely defined in the constitution, it has become a convention for the Court to be a primary adjudicator for constitutional disputes. This has been particularly important in Canada because of the difficulty of amending the constitution. As Canadian society has changed, the courts have played a vital role in deciding what is constitutionally acceptable. Another key convention of Canada’s constitution is responsible government. The wording of the Constitution Act of 1867 seems to give the British monarch’s representative in Canada—the governor-general—near-dictatorial powers. In practice the governor-general’s role is almost purely symbolic. A convention has developed that grants most executive power to the prime minister and members of the cabinet. Although the prime minister and the cabinet are only briefly mentioned in the constitution, as members of parliament they are ultimately accountable to the voters for leadership of the country. Unwritten conventions are more difficult to enforce than the written part of the constitution. Conventions are not enforceable by the courts but are dependent upon the political will of the Canadian citizenry. For example, during the 1970s the federal and provincial governments were unable to agree upon a process to patriate the constitution, which would allow Canada to amend its constitution without intervention by the United Kingdom. In 1980 the federal government decided to ask the British Parliament to amend the constitution without the approval of the provinces. The provinces appealed to the Supreme Court of Canada, and claimed the federal government’s action was unconstitutional. The Court ruled that although there was nothing in the written constitution that prohibited the federal government from acting unilaterally, there was an unwritten constitutional convention that required amendments to the constitution to be supported by a significant number of provinces. As a result of this decision, the federal government resumed negotiations with the provinces. Eventually, the Canadian federal government and the provinces (except Québec) agreed upon a process to patriate the constitution.

IV  INTERPRETATION AND ENFORCEMENT

The constitution is the supreme law of Canada and almost any law that contradicts or is inconsistent with the constitution is unenforceable. If the federal government has concerns about the constitutionality of a proposed law before it is passed, it can submit a reference case to the Supreme Court of Canada and ask the Court to determine if the proposed law is constitutionally valid. The Supreme Court will issue an advisory opinion. Similarly, a province can submit reference cases to its provincial court of appeal, which are subsequently referred to the Supreme Court. Individual citizens who believe that they have been harmed by an unconstitutional law can also ask the courts to decide if a law is valid or not. The courts serve as the primary interpreters and enforcers of the written constitution, and they have the power to invalidate unconstitutional laws. This is called judicial review. Judicial review has been controversial in Canada. It is a departure from the British tradition of parliamentary sovereignty, which holds that the parliament should decide whether a law is legitimate or not. Judicial review also contradicts other parts of the democratic system. Canadian federal judges are not elected but appointed, and are almost impossible to remove from office. Judicial review significantly affects how the Canadian constitution is implemented. For example, courts have been important in determining the division of powers between Canada’s central government and its provinces. The Constitution Act of 1867 anticipated that the federal government would exercise the most power. Between 1867 and 1949, the final court for all decisions from Canada was not the Supreme Court of Canada, but a special committee of the English House of Lords called the Judicial Committee of the Privy Council, which convened in London, England. For more than 80 years, the council’s rulings limited the powers of the federal government, while expanding powers granted to the provinces. As a consequence, Canada has become extremely decentralized. Since 1982 the Supreme Court has exercised its power of judicial review in the context of the Canadian Charter of Rights and Freedoms. Many laws and governmental actions have been challenged on the grounds that they treat people unequally or infringe on liberties guaranteed by the charter. For example, laws prohibiting abortion and cigarette advertising have been struck down, while discrimination claims advanced by women, gays and lesbians, and persons with disabilities have been validated by the Supreme Court. Contributed By: Richard F. Devlin Alexandra Z. Dobrowolsky Microsoft ® Encarta ® Reference Library 2004. © 1993-2003 Microsoft Corporation. All rights reserved.

Confederation of Canada

 I  INTRODUCTION

Confederation of Canada, the federal union of former British colonies in North America, originally known as the Dominion of Canada but now called simply Canada. The Confederation began on July 1, 1867, with four provinces and a population of 3.4 million; it now includes ten provinces and three territories and has a population of almost 30,000,000.

II  BACKGROUND The British lands in the northern half of North America did not take part in the American Revolution, and in the 1860s they were still part of the British Empire. More than 95 percent of the population lived in five colonies between the Atlantic Ocean and Lake Superior. For most purposes they governed themselves through institutions modeled on the Parliament of Britain. However, the government of Britain provided military defense and conducted international relations for British North America, as the colonies were called. The most important British possession in North America was the province of Canada, situated along the St. Lawrence River and the north side of the Great Lakes. Its population of 2.5 million was divided between French and British Canadians, and its administration was divided in a corresponding way. The French population was concentrated in the eastern section, known as Lower Canada or Canada East. There the laws, institutions, and prevalent language were French. In the western part (Upper Canada or Canada West), the laws and institutions were British, and the dominant language was English. Yet the two sections formed one province, with a single government and a single legislative assembly to represent both the French and the British.

III  BEGINNING OF THE PROJECT Governing the two Canadian peoples through a single legislature was difficult because there were important matters on which British and French Canadians had fundamentally different ideas. Education and church-state relations were major examples. Yet the economies of the two sections were so closely linked that they did not want to break up the union altogether. Federalism seemed to offer a solution to this dilemma. Under a federal system, both sections could have their own government responsible for those matters on which the French and British disagreed; a federal government could take charge of the areas in which they had common interests. The work of transforming Canada into a federation began in 1864 at the initiative of George Brown, the leader of the Reform Party in Upper Canada. Brown persuaded the majority leader in Lower Canada, George-Étienne Cartier, and the leader of the Conservative Party in Upper Canada, John A. Macdonald, to work with him to achieve it. Cartier and Macdonald, however, wanted the new federation to include not just Canada, but other colonies in British North America as well. They hoped, no doubt, that including the Atlantic region—the colonies of Newfoundland, New Brunswick, Nova Scotia, and Prince Edward Island—would weaken the influence of the Reform Party, whose strength was in Upper Canada. But they had economic and military reasons as well. A Economic Incentives If the four Atlantic colonies were included, it would be easier to build railroads and develop economic relations between them and Canada. That seemed particularly important in the mid-1860s because all these colonies were about to lose markets for their products in the United States. In 1865 the U.S. government had announced that it would cancel a treaty that had provided for limited free trade with British North America. In addition, cancellation would increase the costs of shipping goods by way of U.S. ports to Canada’s other major market, Britain. Canadian businesses therefore wanted a railroad that would carry their products to the Atlantic colonies, giving them access to a seaport in British North American territory. These considerations were certainly important to Cartier. He was the lawyer for Canada’s largest railroad company and represented the city of Montréal in the legislative assembly. That city was already the center of Canada’s railroad system, and its budding industries hoped to benefit from that position to conquer new markets. B Self-Defense Incentives But a railroad between Canada and the Atlantic colonies was also important for military defense. That had become clear in the winter of 1861-1862 when Britain and the United States had come close to war in the dispute known as the Trent Affair. When the American Civil War began in 1861, the United States was angered by Britain’s friendliness toward the rebel government in the South, the Confederate States of America. In the fall of 1861 an American naval vessel stopped a British mail ship, the Trent, in international waters and seized two Confederate agents who were aboard. The British government protested furiously, demanding the release of the men, and in the war scare that followed, it sent 14,000 troops to North America to defend Canada. But the St. Lawrence River was frozen for the winter, and the soldiers had to land in the seaside colony of New Brunswick and make their way slowly and painfully by sleigh from there. Had war actually broken out, the delay could have been disastrous for the defense of Canada. Thus, a federation of all of British North America seemed desirable to promote economic development and military defense. So, in June of 1864, Brown, Cartier, and Macdonald formed a coalition to govern Canada and to obtain such a federation if possible. They agreed that if the other colonies could not be persuaded to join them, they would turn Canada alone into a two-province federation.

IV  DEVELOPMENT OF A STRUCTURE That September, the new Canadian government presented its proposal for federation to members of the governments of Nova Scotia, New Brunswick, and Prince Edward Island. In a conference at Charlottetown, the Prince Edward Island capital, they all agreed to the general idea, but they decided to postpone serious work on it until the following month. In October a second conference took place, this time in Canada’s oldest city, Québec. Here representatives from Newfoundland joined the others in adopting a series of resolutions that would form the basis of a new federal constitution. It was soon apparent that the delegates were not of one mind about how to structure the federation. The Canadians were determined that the provinces should be represented in the federal parliament in proportion to their population. But the smaller colonies feared that such a system would leave them with too weak a voice in federal affairs. Prince Edward Island, for example, had a population of only 80,000, while Upper Canada had 1.4 million. On this point the Canadians had their way. However, they agreed that the smaller colonies could have nearly three-eighths of the seats (30 out of 78) in the parliament’s upper house, the Senate, with the other 48 equally divided between Upper and Lower Canada. Another bone of contention was the division of powers between the federal and provincial governments. Many of the delegates, including Macdonald, wanted a strongly centralized union; others, particularly the French Canadians, wanted a looser federation with wide autonomy for the provinces. The resolutions finally adopted by the Québec conference seemed in many ways to give Macdonald the centralized union he wanted. The federal government would control banking, finance, defense, transportation, and commerce among the provinces. It would also have far greater powers of taxation than the provincial governments would have. In private, Macdonald predicted that the central government would be so strong that it would soon swallow up the provinces completely. Yet the Québec resolutions were vague or contradictory enough to give equal hope to many who wanted more power for the provinces. Provincial governments were to have exclusive control over education, hospitals, natural resources, property and civil law, municipal institutions, and generally all matters of a local nature. In Lower Canada, Cartier’s party announced that this meant that the provincial government would have the power to promote the French Canadians’ distinctive nationality. In fact, the Québec resolutions were open to opposing interpretations, and it would remain for the future to see how they would work out in practice.

V  THE APPROVAL PROCESS The resolutions were debated and ratified by the legislative assembly of Canada in early 1865. Elsewhere they ran into difficulty. Prince Edward Island and Newfoundland quickly decided to drop out of the federation project altogether. And New Brunswick voters turned their pro-federation government out of office in the general elections of 1865. However, the pro-federation campaign got a boost the next year, shortly before election day, when a band of Irish American Fenians raided the colony. These veterans of the American Civil War hoped to capture British territory in North America and thereby force Britain to grant independence to Ireland. But the raid only frightened the people of New Brunswick and persuaded many that federation was necessary for the sake of defense. On election day the voters returned the federalists to power. In the winter of 1866 and 1867, representatives of Canada, New Brunswick, and Nova Scotia met with British authorities in London to finalize the details of their project and write it up in legal form. In the official version the scheme was now called a confederation rather than a federation. It was unclear what the distinction was, and Canadians have always used both words to mean the same thing. The new confederation would take the name Canada, and the old province of Canada would become two provinces: Ontario (the former Upper Canada) and Québec (the former Lower Canada). The British Parliament passed the British North America Act, creating Confederation in March 1867. The new constitution went into effect on July 1, 1867. Macdonald became the first prime minister of the new Dominion of Canada. Within a year, the Confederation was seeking to expand.

VI  EXPANSION Canadians were looking north and west to the immense territory between the Great Lakes and the Rocky Mountains. Officially under the control of the Hudson’s Bay Company, this territory was still inhabited chiefly by its indigenous peoples, and the fur trade was still the basis of its economy. In March 1869 the Canadian government came to an agreement with the Hudson’s Bay Company and British authorities. The company would surrender its claim on the land in return for compensation in cash and real estate, and Britain would transfer the territory to Canada. This would open the western prairies to settlement, create new markets for Canadian railroads and manufactures, and strengthen the British hold on a region that many feared might otherwise be appropriated by the United States. But plans for the Canadian takeover were upset in the fall of 1869, when armed Métis, a mixed white-indigenous people living in the Red River colony (the region around the present-day city of Winnipeg), organized a resistance movement and prevented Canadian officials from entering the territory (see Red River Rebellion). The Canadian government was forced to offer guarantees for Métis property and other rights. As a result, the Red River region entered Canada as a province, called Manitoba, in 1870. Beyond the prairies and the Rockies lay the province of British Columbia. In 1871 it too joined the Confederation, giving Canada a coast on the Pacific Ocean and allowing the railroad system to be extended across the continent. The federal commitment to build the railroad was one inducement to British Columbia to join. The federal government also promised to pay off British Columbia’s huge public debt and invest heavily in its economic development. A similar promise finally brought Prince Edward Island into the Confederation in 1873. Meanwhile, settlement of the prairies had begun quickly after the area was annexed by Canada, and by 1905 the population was large enough for local self-government. That year, two new provinces, Alberta and Saskatchewan, were established in the region between Manitoba and the Rocky Mountains. Newfoundland did not join Canada until 1949. It took two referendums, but Newfoundland’s people finally decided to join the Confederation they had rejected for the previous 85 years. Contributed By: Arthur I. Silver Microsoft ® Encarta ® Reference Library 2004. © 1993-2003 Microsoft Corporation. All rights reserved.