All about Canada's Constitution

Canada has a constitution which sets out the basis of our form of government, as well as the individual rights of all Canadian citizens.

The history of our constitution is very muddled and complicated, and as a direct result the document is nowhere near as widely venerated- or even understood- as the United States constitution is.

Boring Constitutional History

In 1867 the British Parliament passed a law to unite the four main British North American colonies into one, self-governing dominion. This law was known as the British North America (BNA) act, and forms the bulk of Canada's present constitution.

The intro to the BNA act (and as such, the preamble to Canada's constitution) is as follows:

"Whereas the provinces of Canada, Nova Scotia and New Brunswick have expressed their desire to be federally united into one dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom; and whereas such a union would conduce to the welfare of the provinces and promote the interests of the British Empire."

The key phrase in all this is "a constitution similar in principle to that of the United Kingdom." Back in the day, all the Canadian politicians though Britain had the best system of government on earth, so they didn't feel the need to spend a lot of time explaining how the Canadian government would operate. They would just do things the same way Britain did.

As a result, the rest of the BNA act is not terribly specific. If you were to read it line-by-line, you'd have absolutely no clue about how Canada's government works. The act spends a lot of time talking about what the Governor General of Canada does, but the office of the Prime Minister is not mentioned once. It's a very confusing document and in order to understand what it really means and how it applies to contemporary Canada you have to be able to decipher the outdated language and colonial-era terms.

If you want to read the whole thing, you can do so here.

For a long time the BNA act was all Canada had. If we wanted to make changes to it, the British Parliament had to vote on it. This formula got more and more unpopular as time went on. Since the only person who could ask the British to vote on a constitutional amendment was the Prime Minister of Canada, the provinces felt this process was not very representative- or democratic.

In 1982, after a long, long debate, Prime Minister Pierre Trudeau and the nine (Quebec refused to co-operate) provincial premiers hammered out a new deal. The BNA act was to be "brought home" from Britain, and renamed the Constitution Act. If the constitution act was to be changed again, it would require approval from the Canadian parliament and two-thirds of the provinces. However, if you wanted to change something really important in the constitution (such as, the process for changing the constitution) unanimous Provincial consent woul be needed.

The Charter

1982 was also the year that the Canadian Charter of Rights and Freedoms was created. The Charter is probably the part of the constitution to which the majority of Canadians are most familiar with.

Okay, this is sort of complicated to explain. Before 1982, Canada operated under a system known as "Parliamentary Supremacy" which more or less meant that the parliament could do whatever it wanted. For instance, if the Parliament wanted to make a law that said that all Asian people had to be sent to special camps because we were at war with Japan, that would be allowed, since Parliament's will was supreme.

Certain politicians felt this left the door open to abuse and allowed for the so-called "tyranny of the majority" to oppress the will of minorities. They said Canada needed a clearly written bill of rights, like the one the United States had, to protect the minorities and clearly spell out what rights could never be violated by the government.

Other politicians said this was unnecessary:

"This business of rights, that's not our concept of government. We know what our rights are. We enjoy them. We don't have to state them. This rather American approach to it is really not ours. We don't worry about things like that. We do what's right." - Sterling Lyon, Premier of Manitoba, 1981

Mr. Trudeau did not agree. In his final years in office he decided creating a Charter of Rights was of utmost importance, and managed to get the provincial leaders to agree to add a charter as the first Canadian-made amendment to the new Constitution Act.

The Charter states that Canadians live in a society founded under "the supremacy of God and the rule of law." It then proceeds to give all Canadians the following freedoms:

It also guarantees that all Canadians must be given "equal benefit of the law without discrimination." In particular, this means that citizens must be treated equal regardless of their:

In practical terms, the biggest thing the Charter has done for Canada is vastly increase the amount of lawsuits we have. Like I mentioned, under parliamentary supremacy you pretty much just had to put up with whatever the politicians decreed. Now, if they make a law you don't like you can take them to court and argue the law is "unconstitutional." For example, this recent controversy over gay marriage could never have happened in pre-Charter Canada. But now, because our constitution explicitly states that every Canadian has a right to "gender equality," gay couples have successfully sued the state for marriage rights, arguing that the man-woman definition of marriage is unconstitutionally discriminatory.

Many conservative Canadians are thus deeply critical of the Charter. They argue it has allowed Canada to become a nation ruled by "judicial fiat" rather than parliament, pointing to the fact that the courts are now actively overturning and writing new laws hundreds of times a year.

Such concerns are hardly new, however, and actually played a role in forming one paticularly unusual part of the modern Canadian Constitution. In an attempt to appease the judge-hating conservatives (like Mr. Lyon, above) Trudeau allowed the premiers to include a controversial footnote to the Charter known as the "Notwithstanding Clause." This clause gives the government the power to suspend the Charter to make unconstitutional laws, but only for five years. After that time passes the laws expire and need to be reintroduced by the government. Similarly, the government is not allowed to suspend the right to vote or the right of personal mobility. The "Notwithstanding Clause" is still very controversial, as it gives the government the power to suspend most basic rights and freedoms. If there was ever some sort of Canadian Hitler, he could pass all sorts of crazy racist laws citing the Clause as a justification. That being said, to date the "Notwithstanding Clause" has largely gone unused.

Changing the Constitution

You'd think that after spending all these years modifying the constitution, we'd be happy with the one we have. But oh no. Canada's constitution is considered very imperfect. Among the main concerns:

- Canada's Senate is undemocratic and unrepresentative, and needs to be changed,
- The process of appointing judges to the Supreme Court of Canada needs to be changed,
- Quebec's status as a fundamentally "unique" part of Canada needs to be acknowledged / Quebec needs to be given special powers to protect its culture and language (Quebec still has never formally signed the constitution),
- Seats in the House of Commons need to be more fairly distributed.

And then there are other concerns such as enshrining native rights to self-governance, abolishing the monarchy, fixing election dates, etc etc etc etc.

When Brian Mulroney was elected Prime Minister, he twice tried to change the constitution to address some of these concerns.

In 1987 Mulroney proposed a package of amendments called the Meech Lake Accord. Among other things, these amendments would have recognized Quebec as a "distinct" society, given the provinces vetoes on future constitutional amendments, and mandated the involvement of the provincial governments in the process of appointing Supreme Court justices. This package required unanimous consent of all ten provinces, and almost passed. However, the province of Manitoba had a cranky Native member of parliament who was unhappy that the accord did not make any amendments enshrining Native rights. So he filibustered in the provincial parliament until the voting deadline passed. And as a result Manitoba did not pass the Accord, and amendments were not ratified.

Charlottetown

Never one to be discouraged easily, in 1992 Mr. Mulroney proposed another package of amendments, called the Charlottetown Accord. The Charlottetown accord was about ten billion times more complicated and ambitious than the Meech Lake one. Along with the "distinct society," the vetoes, and the Supreme Court changes, the accord also proposed making the Canadian Senate elected, giving all Natives the right to self-government, protecting Quebec's right to a quarter of all seats in the House of Commons, and a bunch of other complex nuances that clarified the separation of powers between provincial and federal government authority.

To avoid the mistakes of Meech Lake, Mulroney said that instead of just letting the provincial parliaments vote on ratification, the entire electorate in Canada would vote in one big national referendum. This did not prove to be the solution he had hoped for, however. Western Canadians remained bitterly opposed to the Accord, mainly on the basis that it would give too many new powers to Quebec at the expense of their provinces. There was likewise a strong populist dimension to the opposition, as many began to see the accord as some crappy deal the elites of the country were just forcing upon the people in order to satisfy their own bureaucratic fantasies... sort of like the EU.

On voting day, three maritime provinces, Ontario, and the Northwest Territory passed the Accord by very narrow margins. Every other province voted against it. The results were nowhere near sufficient. The Accord did not pass.

In 1992 the Conservatives were voted out of power, and for a few years there was no more constitutional talk. Then in 1995 the Quebeckers held a referendum on separating from Canada that was defeated by an incredibly narrow margin of less than 1%. Suddenly, appeasing Quebec became a huge focus of political debate, and as a result Prime Minister Jean Chretien passed a law which gave preemptive veto power over all future constitutional amendments to all five "regions" of Canada (BC, Ontario, Quebec, The West, and the Maritimes). This concept of veto power had been defeated in Meech Lake and Charlottetown, but Chretien was easily able to get it passed as a mere law. This veto power is thus not a constitutional right, and as a result it could theoretically be overturned someday. But for the time being, it will likely stay, largely just so Quebec can have the right to feel empowered over the constitution, and thus not want to leave Canada.

Anyway, just to summarize, to change the constitution you need the following (in order):

To date, no amendment has ever been passed through this formula.

Since Canada's provinces don't have their own constitutions however, the constitution does allows amendments to be made unilaterally, by one province if they only affect one province. There have been a few amendments of this sort, but no one remembers them because they tend to be about really obscure things.