Canadian Constitution of 1982

Canadian Constitution of 1982
Name	Constitution Act, 1982
Date commenced	April 17, 1982
Jurisdiction	Canada
Citation	Constitution Act, 1982
Related legislation	Constitution Act, 1867; Canada Act 1982

Canadian Constitution of 1982 The Constitution Act, 1982 transformed Canada's constitutional framework by completing patriation from the United Kingdom and by adding the Canadian Charter of Rights and Freedoms, a novel constitutional bill of rights, while creating a domestic amending formula that altered relations among provinces, the Parliament, and Indigenous nations. The document sits alongside the Constitution Act, 1867 and frames adjudication by the Supreme Court of Canada, political disputes in the House of Commons, and federal-provincial negotiations such as those at the First Ministers' Conference. The Act's enactment followed complex negotiations involving figures like Pierre Trudeau, Joe Clark, and Brian Mulroney and events such as the 1980 Quebec referendum and the Meech Lake Accord debates.

Background and Patriation

Patriation culminated a century-long process that traced roots to the Statute of Westminster 1931 and the constitutional arrangements established by the British North America Act, 1867 (later renamed Constitution Act, 1867). Political actors including Lester B. Pearson, John Diefenbaker, and Pierre Trudeau advanced differing visions during crises like the October Crisis and disputes over national unity culminating in the 1980 Quebec referendum. The final patriation package negotiated in 1981–1982 involved federal cabinet processes in Ottawa, the decision to seek an Order in Council, and the passage of the Canada Act 1982 by the Parliament of the United Kingdom alongside proclamation by Queen Elizabeth II at Ottawa's Parliament Hill.

Text and Structure

The Act reorganized constitutional text by entrenching the Canadian Charter of Rights and Freedoms, adding a new amending formula, and incorporating provisions such as the Equality Rights sections and the notwithstanding clause at Section 33. It preserved the framework of the Parliament of Canada and provincial legislatures established under the Constitution Act, 1867, while articulating principles guiding the Supreme Court of Canada and lower courts. Structural elements reference institutions like the Governor General of Canada, the Privy Council Office, and statutory frameworks that interact with administrative bodies such as the Canadian Human Rights Commission and provincial human rights tribunals.

Charter of Rights and Freedoms

The Charter enumerated civil and political guarantees including sections on Fundamental Freedoms, Democratic Rights, Mobility Rights, Legal Rights, Equality Rights, and language protections for English-speaking Quebecers and French-speaking minorities that intersect with cases involving actors like Robert Bourassa and adjudication by the Supreme Court of Canada. The Charter introduced judicial review mechanisms used in landmark cases such as R v. Oakes, R. v. Morgentaler, and R. v. Keegstra, shaping doctrines like the Oakes test and the scope of the notwithstanding clause invoked in controversies related to provincial measures by governments like Alberta and Saskatchewan. Charter litigation influenced institutions including the Canadian Civil Liberties Association and stakeholders such as Native Council of Canada and led to dialogue with international bodies like the United Nations Human Rights Committee.

Amending Formula and Constitutional Change

The Act defined procedures for constitutional amendment through formulas including the general amending formula (7/50 rule), the unanimity formula, and provisions for bilateral federal–provincial changes. Disputes over amendment mechanisms resurfaced in constitutional negotiations such as the Meech Lake Accord and the Charlottetown Accord, and in litigation before the Supreme Court of Canada concerning the limits of federal power. The amending framework implicated the roles of actors like the Premiers of Canada and instruments such as provincial legislatures and federal statutes, affecting efforts at reform pursued by commissions such as the Royal Commission on Aboriginal Peoples.

Indigenous Rights and Treaties

Section 35 recognized and affirmed existing Aboriginal and treaty rights, providing constitutional status for rights claimed by First Nations, Inuit, and Métis peoples and prompting litigation in cases like R v. Sparrow and R v. Van der Peet. The entrenchment interacted with historic agreements such as the Nisga'a Final Agreement and processes involving institutions like the Assembly of First Nations and the Inuit Tapiriit Kanatami. Debates over duty to consult, land claims, and reconciliation engaged mechanisms from the Supreme Court of Canada and federal departments including Crown–Indigenous Relations and Northern Affairs Canada, influencing treaty negotiations and modern self-government accords exemplified by accords with nations such as the James Bay Cree.

Legal and Political Impact

The 1982 Act reshaped constitutional litigation, elevating the role of the Supreme Court of Canada and transforming public policy in areas ranging from criminal law shaped by decisions like R v. Gladue to language law disputes such as Ford v. Quebec (Attorney General). Political consequences reverberated through the activities of parties including the Liberal Party of Canada, the Progressive Conservative Party of Canada, and emergent movements like the Bloc Québécois. The constitutional framework influenced federal-provincial fiscal arrangements, intergovernmental forums such as the Council of the Federation, and constitutional scholarship produced by academics at institutions like the University of Toronto and the University of British Columbia.

Debates and Criticisms

Critiques of the Act address the perceived centralization of judicial power via the Charter, controversies surrounding the notwithstanding clause and its use by provincial executives, and critiques from Indigenous leaders regarding adequacy of Section 35’s protections. Quebec political leaders including René Lévesque and Lucien Bouchard have criticized the constitutional settlement, leading to subsequent initiatives such as the Clarity Act and debates after the 1995 Quebec referendum. Scholarly critiques from commentators associated with institutions like the Fraser Institute and organizations such as the Royal Society of Canada continue to debate remedial mechanisms, democratic accountability, and the prospects for future constitutional reform.

Category:Constitutions of Canada