Canadian Constitutional Law/Sources of Constitutional law

Introduction

Canada is a kingdom; Queen Elizabeth II is the Queen of Canada; all executive, legislative, and judicial power is vested in the Queen. These facts are established in the Constitution Act, 1867. However, in 1947 the King transferred all of his legal power to the Governor General (GG) of Canada, except for the power of appointing a GG. It might be said, then, that the GG occupies the top position in the government legally but that the Queen does so symbolically. Similarly, it might be said that all executive, legislative and judicial power is vested in the GG. The constitution, however, provides that these powers can be exercised only on the initiative of the ministers, the Parliament, or the judiciary, respectively.

The government is organized in three branches: executive; legislative; and judicial.

The executive branch consists of the GG, the Prime Minister, and the other cabinet ministers. This branch carries out the administration of government and prepares the governmental plans, budgets and legislative proposals for consideration by the legislative branch. In the administration of government, the executive acts under the authorization of either existing legislation or of the inherent legal power (the "prerogative") of the GG. To take an executive action, the Prime Minister or a minister advises the GG to take the action and (for routine executive business) the GG must comply. It might be said that the GG occupies the top position in the executive legally but that the Prime Minister does functionally. There is some evidence that one role of the GG is to refuse to act on advice that would give an advantage to one political party over another. Similarly, it might be said that the GG should refuse a proposal from the Prime Minister that would give himself/herself increased power or that would otherwise amend the constitution. The GG and the rest of the Executive Branch are subject to Canadian constitutional law.

The legislative branch consists of the Queen, the House of Commons, and the Senate. One purpose of the Commons is to install or replace the Executive, sometimes through a vote of non-confidence. Another purpose is to consider and accept, modify, or reject the plans, budget, and proposed legislation originated by the Executive. Parliamentary debates before confederation indicated that the first purpose of the Senate was to ensure that proposed legislation did not impose an unfair majority view on a minority geographical region; it might be said that the veto power of the Senate existed for this purpose. A second purpose was said to be the modification of any bill expressing an unwise but popular view of the Commons. A third purpose was to review for errors or omissions any bill passed by the Commons. (The first and second purposes of the Senate seem to have been forgotten now.) Representation in the Commons is by population; representation in the Senate, by geographical region, to offset the large legislative power of large provinces. The GG enacts legislation on the advice and consent of the Commons and the Senate; the GG may refuse to do this (presumably to protect the constitution, as for refusal to carry out an executive act on the advice of the Prime Minister) but has not refused for many decades.

Court judgments are given in the name of the Queen. Superior court judges are appointed for life, to promote independence. Federally, an independent public prosecutor has been set up to remove political influence on decisions of whether or not to prosecute in a particular case.

Since Canada began life as a British colony, its form of democracy is based on the model of the United Kingdom, a model that is known in Canada as Responsible Government, ~~. Both countries share a constitutional monarchy and responsible government,~~ in which ~~the powers of the Executive are given to~~ the party (or coalition) that has the confidence of the elected house of the legislature becomes installed in the executive branch and the GG acts on the advice of the Prime Minister and ministers.~~Many other aspects of Canada's public law derive from the United Kingdom.~~

~~However,~~ Canada departed from ~~Britain~~ the British model from the outset by being a federal union in which legislative power is divided between a central parliament and provincial legislatures. The division of powers was set out in the UK British North America Act, now issued as the (Canadian) Constitution Act, 1867. Since each level of government's power was limited by the other, the courts reviewed legislation to determine whether it was constitutional, a role they have never played in the United Kingdom.

Provincial governments are organized in the same way as the federal under their Lieutenant Governor. They are as competent and independent in their field of jurisdiction as the federal government is in its field.

In 1982, Canada's constitution was fundamentally reformed by adding a judicially-enforced Canadian Charter of Rights and Freedoms (the "Charter"), a guarantee of the rights of Canada's indigenous peoples, and a constitutional amending formulas. The Charter has led to important changes to Canada's law and society, as well as to an ongoing debate about the relative role of judges and politicians in determining how Canadians should be governed. The amending formulas must be followed if the "entrenched" part of constitutional law is to be amended; other parts of the constitution can be amended without reference to the amending formulas.

What is the Constitution of Canada?

Canada's constitution defines itself, or at least it tries to. Section 52 (2) of the Constitution Act, 1982 says:

 The Constitution of Canada includes
 (a) the Canada Act, 1982, including this Act;
 (b) the Acts and orders referred to in the schedule; and
 (c) any amendment to any Act or order referred to in paragraph (a) or (b).

The Canada Act is a reference to the statute of the UK Parliament that ended the British role in amending Canada's constitution. The Constitution Act, 1982 was appended to the Canada Act, and for practical purposes they are the same. Part I of the Constitution Act, 1982 is the Canadian Charter of Rights and Freedoms. Part II sets out the Rights of the Aboriginal Peoples of Canada. Part III is entitled Equalization and Regional Disparities and provides for a non-justiciable commitment to regional equalization. Parts IV and IV.1 provide for constitutional conferences. More importantly, Part V provides a Procedure for Amending the Constitution of Canada. Part VI amended the Constitution Act, 1867, Canada's original constitution. Part VII is General.

The Schedule referred to in paragraph (b) lists 30 historical documents that fill out Canada's written constitution. By far the most important is the first, the Constitution Act, 1867, which continues to be the primary source for the division of sovereignty between the federal and provincial governments. There have been some minor amendments since 1982, but the two major attempts at constitutional change, the Meech Lake Accord and the Charlottetown Accord, resulted in failure.

For most purposes, therefore, Canada's written constitution consists of the two documents, the Constitution Act, 1867 and the Constitution Act, 1982. However, as section 52 (2) recognizes by the use of the word "includes," Canada's constitution is not all written. Both the Constitution Act, 1867 and the Constitution Act, 1982 are written against a background of principles inherited from the United Kingdom and not set out explicitly in the text. Some of these unwritten elements are enforceable in court, and others are constitutional conventions, derived from tradition and enforced by the political system.

An example of an unwritten constitutional concept is the office of the prime minister. While the prime minister of is the most powerful official in the Canadian government, the Canadian written constitution hardly mentions the existence of a prime minister. No law says how the prime minister is chosen or what powers he or she exercise. These matters are governed by constitutional convention.

The Supreme Court of Canada summed up the "unwritten constitution" this way:

The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. (Re: Secession of Quebec [1998] 2 SCR 217 headnote)

Federalism

Canadian federalism means that the sovereignty of Canada is divided between two levels, or "orders" of government: federal and provincial. Each province has its own government, and the constitution gives the federal government certain powers and each provincial government certain powers. The division of powers is listed in Sections 91 and 92 of the Constitution Act, 1867. Section 91 lists the powers of the federal government, while section 92 lists the powers of the provincial governments.

The most important "unwritten" constitutional principle relating to federalism is that Canada has full sovereignty, that is, Canada can exercise all of the powers of an independent country. All of Canada's sovereignty can theoretically be exercised by either the federal or provincial governments; there is nothing that one or the other government cannot do. Another unwritten constitutional principle is that it is up to Canada's courts to decide which government has the power to do what, when the rules are unclear.

Democracy

Reading the Constitution Act, 1867, the most important Constitutional document until 1982, the impression one would get is that Canada is not a democracy, but a colony ruled directly by a Governor appointed by the Queen of England. An elected legislature exists, but all of the laws of the legislature must be approved by the Governor and most executive decisions are made by the Governor and his or her Council.

This is because one of the most important constitutional rules of Canada is unwritten. It is called Responsible Government. The important aspects of responsible government are:

The Governor must appoint his or her Council (aka. "Council of Ministers" or "Cabinet") from the political party with the most support in the legislature
The Governor must choose the leader of the political party with the most support in the legislature as Prime Minister
The Governor must act "on the advice of the Prime Minister" (i.e., the Governor must do whatever the Prime Minister says) or "on the advice of Council" (i.e., the Governor must do as instructed by Cabinet).

Therefore, whichever party wins the election gets the most seats in the legislature. Their party leader becomes Prime Minister. The Prime Minister tells the Governor who to appoint to the Cabinet, and then the Cabinet tells the Governor how to run the country. In this way, the Governor's position becomes completely ceremonial; sovereignty, which is technically exercised by the Queen through her Governor, is in fact exercised through elected officials.

Responsible government applies equally to provincial governments. Each province has a ceremonial Lieutenant-Governor, appointed by the Queen, who acts "on the advice" of the Premier (the provincial equivalent of the Prime Minister) and the provincial Cabinet.

Constitutionalism and the rule of law

Constitutionalism means that the Constitution is supreme. Statutes passed by legislatures may not violate the constitution; any part of a statute that violates the constitution is null. The government is not free to disobey the constitutional rules when it suits them, be they written or unwritten.

The rule of law is a fundamental principle, not only of Canadian constitutional law, but of Canadian life. The stereotype of Canadians as straight-laced people who want everything done "by the book" suggests how seriously the country takes the rule of law. The Rule of Law principle is that the government may not act arbitrarily, but must act only according to the authority given them by the law. The law must, in turn, be valid according to the following criteria:

It must be validly approved (i.e., passed according to the rules of the legislature and given "Royal Assent" by the Governor)
It must be consistent with the constitution
It must be possible to obey (this usually means that it cannot conflict with another law, it must be made public, it cannot be retroactive, etc., although judges sometimes make exceptions to these rules)

Respect for Minorities

This constitutional principle has existed since the beginning of the Canadian legal system, although this has not always led to minorities being respected in practice. Nowadays, it is a principle that guides courts in interpreting things such as Aboriginal treaties and the place of French speakers in Canada.

The Royal Prerogative

The royal prerogative are the powers given to the crown by the common law. These powers are unique to the crown and have no equivalent power to any one else. In modern times, the royal prerogative has fallen into disuse. The courts have held that there is no longer the prerogative power to legislate or administer justice, and there remains little of this power left. The prerogative exists primarily as a convention and is generally accepted as no longer being enforced by the courts.

The Constitution Act, 1867 was not meant to be a complete constitution for an independent country. In 1867, the territory of what is now Canada was broken up into several provinces of the British Empire. The Constitution Act, 1867 was simply a statute passed by the British Parliament to federate several of its provinces. The relations between the Empire and its Canadian colonies would remain the same: the Empire would still run Canada's foreign affairs, sign and ratify treaties on its behalf, and declare war in its name.

When Canada became an independent country, the powers that the British Empire exercised on Canada's behalf fell to the federal government. However, they were not powers that the Canadian Parliament (legislature) inhereited. Rather, they were powers that the Governor-General inherited. As stated above, the powers of the Governor-General are in fact exercised by the Prime Minister. Therefore, decisions on how to run Canada's foreign affairs, to sign and ratify treaties, and declare war are not decisions that the Parliament of Canada make. Rather, they are made directly by the Prime Minister and Cabinet.

Constitution Act, 1867

The Constitution Act, 1867 was the product of negotiations between the top officials of four British colonies in North America: Canada, Nova Scotia, New Brunswick, and Prince Edward Island. They were discussing ways to deal with several common problems: the huge expenses of building rail and canal projects, worsening relations with the United States, and the unworkable political systems that made the colonies hard to govern. In the end, the provinces of Canada, Nova Scotia, and New Brunswick agreed on a plan to create a federation of four provinces (by dividing the former province of Canada into the provinces of Ontario and Quebec). They proposed legislation to the Imperial Parliament in London, which passed it. On July 1, 1867, the British North America Act came into effect, creating a new British colony, "the Dominion of Canada" (s.3).

The highlights of the British North America Act (a.k.a. "the BNA Act") were:

A federal system: powers would be shared between a new federal government and a government in each province (s.91 and 92);
The federal government would have vast powers in the Canada's most crucial financial and economic areas (currency, all forms of taxation, the debt, banks, interest, the building of interprovincial railways and canals) as well as other areas of "national" concern, such as aboriginals and their lands, and criminal law (s. 91)
The provincial governments would generally have powers over local matters and areas that affected the common people: property rights, licenses, hospitals, cities, courts, government land; (s. 92)
The capital of the new country would be Ottawa, on the Quebec-Ontario border; (s.16)
The federal government would have a House of Commons: an elected legislature with representation from the provinces roughly equal to the size of their population; (s.37-40)
The federal government would also have a Senate, with 24 representatives each from Ontario and Quebec and 12 representatives each from New Brunswick and Nova Scotia, the members of which would be chosen by the Governor (in fact, by the Prime Minister of Canada); (s. 21-36)
The provincial governments would each have one elected legislative assembly; Quebec would also have an appointed Legislative Council; (s.69, 71, 88)
The federal government could set up a general court of appeal for Canada and other courts for the "better administration of the laws of Canada", and appoint the judges; (s. 101)
While the provinces were in charge of courts, the Governor (i.e., Prime Minister of Canada) had the power to appoint the judges to the most important provincial courts. (s.96)

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