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TheConstitution Act, 1982 (French:Loi constitutionnelle de 1982) is a part of theConstitution of Canada.[a] The Act was introduced as part of Canada's process ofpatriating the constitution, introducing several amendments to theBritish North America Act, 1867, including re-naming it theConstitution Act, 1867.[b] In addition to patriating the Constitution, theConstitution Act, 1982 enacted theCanadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; entrenched provincial jurisdiction over natural resources; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.
This process was necessary because, after theStatute of Westminster, 1931, Canada allowed the British Parliament to retain the power to amend Canada's constitution, until Canadian governments could agree on an all-in-Canada amending formula. In 1981, following substantial agreement on a new amending formula, theParliament of Canada requested that theParliament of the United Kingdom give up its power to amend the Constitution of Canada. The enactment of theCanada Act 1982 by the British Parliament in March 1982 confirmed thePatriation of the Constitution and transferred to Canada the power of amending its own Constitution.[1]
On April 17, 1982, QueenElizabeth II and Prime MinisterPierre Trudeau, as well as theMinister of Justice,Jean Chrétien, andAndré Ouellet, theRegistrar General, signed the Proclamation which brought theConstitution Act, 1982 into force.[2][3] The proclamation confirmed that Canada had formally assumed authority over its constitution, the final step to full sovereignty.[c][d][1][3][4]
As of 2024[update], theGovernment of Quebec has never formally approved of the enactment of the act,[citation needed] though the Supreme Court concluded that Quebec's formal consent was never necessary[5] and 15 years after ratification the government of Quebec "passed a resolution authorizing an amendment."[6] Nonetheless, the lack of formal approval has remained a persistent political issue in Quebec.[citation needed] TheMeech Lake andCharlottetown Accords were designed to secure approval from Quebec, but both efforts failed to do so.
TheCanadian Charter of Rights and Freedoms is the part I of theConstitution Act, 1982. The Charter is abill 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 theCanadian Bill of Rights, which was created by the government ofJohn Diefenbaker in 1960. However, theBill of Rights was only a federalstatute 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 forhuman rights and freedoms that emerged afterWorld War II also wanted to entrench the principles enunciated in theUniversal 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 theConstitution Act, 1982.
One of the most notable effects of the adoption of the Charter was to greatly expand the range ofjudicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was theCanadian Bill of Rights. Thecourts, 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 offederalism. 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 thecommon law and under the principle ofParliamentary supremacy, which Canada had inherited from the United Kingdom.[10]
Section 59 limits the application ofsection 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.[e][11]
Section 35 of theConstitution 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 toIndian,Inuit, andMétis 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 theConstitution 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 theRoyal 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 ofequal 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 ensureequalization payments.
Writing in 1982, ProfessorPeter Hogg expressed scepticism as to whether the courts could interpret and enforce this provision, noting its "political and moral, rather than legal" character.[12][page needed] Other scholars[who?] 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 theCharlottetown Accord to make it enforceable. The Accord never came into effect.[13]
These two parts provided for constitutional conferences within certain time limits. Once the conferences were held, the two parts were repealed.
Subsection 52(3) of theConstitution 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 theConstitution Act, 1982.
There are five different amendment procedures, each applicable to different types of amendments. These five formulas are:
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 theConstitution 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 theConstitution Act, 1982 in 1983. Section 35.1 was invoked in the negotiations that led to theCharlottetown 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.
The act also amended the division of powers by adding the natural resources amendment to theConstitution Act, 1867. The new provisions,section 92A and the Sixth Schedule, gave the provinces exclusive jurisdiction to regulate the development of non-renewable natural resources and electrical generation. These amendments were set out in sections 50 and 51 of the 1982 act.
Subsection 52(1) of theConstitution 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.[citation needed] But only Parliament or a provincial legislature can repeal such a law.
Before the 1982 Act came into effect, theBritish North America Act, 1867 (now known as theConstitution 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 theColonial 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 theBritish North America Act was an Imperial statute extending to Canada, any Canadian law violating theBNA Act was inoperative. Although there was no express provision giving the courts the power to decide that a Canadian law violated theBNA Act and was therefore inoperative, this power was implicit in s. 2 of theColonial Laws Validity Act, which established the priority of statutes to be applied by the courts.[citation needed]
In 1931, theBritish Parliament enacted theStatute of Westminster, 1931. This Act provided that theColonial Laws Validity Act no longer applied to theBritish Dominions, including Canada.[17] However, it provided that Canada could not amend theBritish North America Act,[18] which remained subject to amendment only by the British Parliament. This provision maintained the supremacy of theBritish North America Act in Canadian law until the enactment of theConstitution Act, 1982.
Section 52(2) of theConstitution Act, 1982 defines the "Constitution of Canada." The Constitution of Canada is said to include:
Section 52(2), in addition to containing many Imperial Statutes, contains eight Canadian statutes, three of which created the provinces of Alberta, Manitoba and Saskatchewan, and five of which were amendments to theConstitution Act, 1867.
The Canadian courts have reserved the right to add and entrench principles and conventions into the Constitution unilaterally. Although a court's ability to recognize human rights not explicitly stated in a constitution is not particularly unusual, the Canadian situation is unique in that this ability extends to procedural issues not related to human rights.[citation needed]
In particular, inNew Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly), theSupreme Court of Canada said that s. 52(2) was not an exhaustive listing of all that comprised the Constitution. The Court reserved the right to add unwritten principles to the Constitution, thereby entrenching them and granting them constitutional supremacy (in this case, they added parliamentary privilege to the Constitution). The Court did note, however, that the list of written documents was static and could not be modified except for through the amending formulas.[19]
Section 56 of the Act provides that the parts of the Constitution that were enacted in English and French areequally authoritative, and section 57 adds that the English and French versions of theConstitution Act, 1982 itself are equal. Section 57 is akinsection 18 of the Charter, which provides that English and French versions of federal and New Brunswick statutes are equal.[20] The Supreme Court has interpretedsection 133 of theConstitution Act, 1867 and section 23 of theManitoba 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.[citation needed]
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.[citation needed] Although the intention was presumably that the government of Canada would do so by introducing an amendment resolution in the House of Commons,[citation needed] 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 theAustralia 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 aconstitutional crisis in 1984, which led to a desire for constitutional reform. The New Zealand Parliament patriated its own constitution in theConstitution Act 1986. Unlike Canada, New Zealand already had the right to amend its own constitution, so there was no corresponding British legislation.
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