Constitution Act, 1982
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Constitution Act, 1982


The Constitution Act, 1982) is a part of
the Constitution of Canada. The act was introduced as part of Canada’s process
of patriating the constitution, introducing several amendments to the
British North America Act, 1867, and changing the latter’s name in Canada to
the Constitution Act, 1867. Elizabeth II, as Queen of Canada, brought the act
into effect with a proclamation she signed in Ottawa on April 17, 1982.
The Canadian Charter of Rights and Freedoms forms the first thirty-five
sections of the Constitution Act, 1982. As of 2015, the government of Quebec has
never formally approved of the enactment of the act, though formal consent was
never necessary. Nonetheless, it has remained a persistent political issue in
Quebec. The Meech Lake and Charlottetown Accords were designed to secure approval
from Quebec, but both efforts failed to do so.
Charter of Rights and Freedoms The Canadian Charter of Rights and
Freedoms is a bill of rights. The Charter is intended to protect certain
political and civil rights of people in Canada from the policies and actions of
all levels of government. It is also supposed to unify Canadians around a set
of principles that embody those rights. The Charter was preceded by the Canadian
Bill of Rights, which was introduced by the government of John Diefenbaker in
1960. However, the Bill of Rights was only a federal statute, rather than a
constitutional document. Therefore, it was limited in scope and was easily
amendable. This motivated some within government to improve rights protections
in Canada. The movement for human rights and freedoms that emerged after World
War II also wanted to entrench the principles enunciated in the Universal
Declaration of Human Rights. Hence, the government of Prime Minister Pierre
Trudeau enacted the Charter in 1982. One of the most notable effects of the
adoption of the Charter was to greatly expand the range of judicial review,
because the Charter is more explicit with respect to the guarantee of rights
and the role of judges in enforcing them than was the Bill of Rights. The courts,
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 of federalism. However,
the Charter granted new powers to the courts to enforce more creative remedies
and to exclude more evidence in trials. These powers are greater than what was
typical under the common law and under a system of government that, influenced by
Canada’s mother country the United Kingdom, was based upon Parliamentary
supremacy. Aboriginal Rights clause
Section 35 of the Constitution 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 the aboriginal peoples. Section 35 also provides
protection of aboriginal title which protects the use of land for traditional
practices. These rights extend to Indian, Inuit, and Métis people.
Other sections of the Constitution Act, 1982 that address aboriginal rights
include section 25 of the Charter and section 35.1, which sets expectations
for aboriginal participation in the amendment of relevant constitutional
provisions. Equalization and equal opportunity
Section 36 enshrines in the Constitution a value on equal 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 ensure
equalization payments. Writing in 1982, Professor Peter Hogg
expressed skepticism as to whether the courts could interpret and enforce this
provision, noting its “political and moral, rather than legal” character.
Other scholars 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 the Charlottetown Accord to make it enforceable. The Accord never came into
effect. Amending the Constitution
Instead of the usual parliamentary procedure, that includes the monarch’s
formal Royal Assent for enacting legislation, section 52(3) of the
Constitution Act, 1982 requires constitutional amendments to be made in
accordance with the rules set out in the Constitution itself. The purpose of this
section was to entrench constitutional supremacy and remove the ability of
legislators to amend the constitution using simple legislation.
The rules for amending Canada’s constitution are quite dense. They are
laid out in Part V of the Constitution Act, 1982.
There are five different amendment formulas, each applicable to different
types of amendments. These five formulas are:
The General Formula – s. 38. The amendment must be passed by the House of
Commons, the Senate, and at least two-thirds of the provincial
legislatures representing at least 50% of the population. This covers any
amendment procedure not covered more specifically in ss. 41, 43, 44 or 45.
The general formula must be used for any of the six situations identified in s.
42. The Unanimity Procedure – s. 41. The
amendment must be passed by the House of Commons, Senate, and all provincial
legislatures. “Some-but-not-all Provinces” – s. 43.
The amendment must be passed by the House of Commons, the Senate, and the
legislative assemblies of those provinces that are affected by the
amendment. Federal Parliament Alone – s. 44. The
amendment must only be passed by the House of Commons and the Senate.
Provincial Legislature Alone – s. 45. The amendment must only be passed by the
provincial legislature. 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. Supremacy clause
Section 52 of the Constitution Act, 1982 provides that the Constitution of Canada
is the “supreme law of Canada”, and any law inconsistent with it is of no force
or effect. This gives Canadian courts the power to strike down legislation.
Though such laws remain on the statute book until they are amended, after being
struck down they cannot be enforced. Before the 1982 Act came into effect,
the British North America 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
the Colonial Laws Validity Act, a British Imperial statute declaring that
no colonial law that violated an Imperial statute extending to a colony
was valid. Since the British North America Act was an Imperial statute
extending to Canada, any Canadian law violating the BNA Act was inoperative.
Although there was no express provision giving the courts the power to decide
that a Canadian law violated the BNA Act and was therefore inoperative, this
power was implicit in s. 2 of the Colonial Laws Validity Act, which
established the priority of statutes to be applied by the courts.
In 1931, the British Parliament enacted the Statute of Westminster, 1931. This
Act provided that the Colonial Laws Validity Act no longer applied to the
British Dominions, including Canada. However, it provided that Canada could
not amend the British North America Act, which remained subject to amendment only
by the British Parliament. This provision maintained the supremacy of
the British North America Act in Canadian law until the enactment of the
Constitution Act, 1982.=Definition of the Constitution=
Section 52(2) of the Constitution Act, 1982 defines the “Constitution of
Canada.” The Constitution of Canada is said to include:
(a) the Canada Act 1982, (b) 30 Acts and Orders contained in the
Schedule to the Constitution Act, 1982, and
(c) any amendments which may have been made to any of the instruments in the
first two categories. Section 52(2), in addition to containing
many Imperial Statutes, contains eight Canadian statutes, three of which
created provinces, and five of which were amendments to the Constitution 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. In particular, in New Brunswick
Broadcasting Co v Nova Scotia, the Supreme 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. The Court did note, however, that the list of written documents was
static and could not be modified except for through the amending formulas.
General Section 52 and the remaining sections of
the Constitution Act, 1982 are located under the header “General.”
Section 56 of the Act states that the English and French versions of the
Constitution are equal, and section 57 adds that the English and French
versions of the Constitution Act, 1982 itself are equal. Legal experts compare
this to section 18, which states that English and French versions of statutes
are equal. Section 59 limits the application of
section 23 of the Charter in Quebec. The section will not be fully valid in
Quebec until the provincial government chooses to ratify it.
Section 60 states that the Act may be called the Constitution Act, 1982, and
that the Constitution Acts can be collectively called the Constitution
Acts, 1867 to 1982. See also
Australia Act 1986 New Zealand Constitution Act 1986
References External links
Full text of The Constitution Act, 1982 at Department of Justice Canada
Building a Just Society: A Retrospective of Canadian Rights and Freedoms at
Library and Archives Canada

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