Law of Canada - Constitution of Canada

Constitution of Canada

Canada's constitution is its supreme law, and any law passed by any federal, provincial, or territorial government that is inconsistent with the constitution is invalid.

The Constitution Act, 1982 stipulates that Canada's constitution includes that act, a series of thirty acts and orders referred to in a schedule to that act (the most notable of which is the Constitution Act, 1867), and any amendment to any of those acts. However, the Supreme Court of Canada has found that this list is not intended to be exhaustive, and in 1998's Reference re Secession of Quebec identified four "supporting principles and rules" that are included as unwritten elements of the constitution: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. While these principles are an enforceable part of Canada's constitution, Canadian courts have not used them to override the written text of the constitution, instead confining their role to "filling gaps".

Because the Constitution Act, 1867 provides that Canada's constitution is "similar in Principle to that of the United Kingdom", which is considered to be an unwritten constitution, the Supreme Court has also recognized the existence of constitutional conventions. In 1981's Reference re a Resolution to amend the Constitution, the Court provided three factors necessary for the existence of a constitutional convention: a practice or agreement developed by political actors, a recognition that they are bound to follow that practice or agreement, and a purpose for that practice or agreement. It also found that, while these conventions are not law and are therefore unenforceable by the courts, courts may recognize conventions in their ruling.

The Constitution Act, 1867 assigns powers to the provincial and federal governments. Matters under federal jurisdiction include criminal law, trade and commerce, banking, and immigration. The federal government also has the residual power to make laws necessary for Canada's "peace, order and good government". Matters under provincial jurisdiction include hospitals, municipalities, education (except education on First Nation reserves), and property and civil rights. The Constitution Act, 1867 also provides that, while provinces establish their own superior courts, the federal government appoints their judges. It also gives the federal Parliament the right to establish a court system responsible for federal law and a general court of appeal to hear appeals of decisions of both federal and provincial courts. This last power resulted in the federal Parliament's creation of the Supreme Court of Canada, which is, despite its role as supreme arbiter of all Canadian law, a creation of simple, rather than constitutional, statute.

The Constitution Act, 1982 created a mechanism by which Canada's constitution could be amended by joint action of federal and provincial governments; prior to 1982, it could be amended only by the Parliament of the United Kingdom. It also created the Charter of Rights and Freedoms, which grants individual rights which may not be contravened by any provincial or federal law.