Constitution Act, 1982

Constitution Act, 1982
Name	Constitution Act, 1982
Country	Canada
Enacted by	Parliament of Canada
Date assented	April 17, 1982
Status	in force

Constitution Act, 1982 The Constitution Act, 1982 is the statute that completed the patriation of the British North America Act, 1867 and entrenched a domestic amending procedure for the Canadian Charter of Rights and Freedoms, provincial constitutions, and federal-provincial relations. It resulted from negotiations involving figures such as Pierre Trudeau, Queen Elizabeth II, Joe Clark, René Lévesque, Brian Mulroney, and provincial premiers including Bill Davis and Peter Lougheed, and was proclaimed by the Royal Proclamation, 1982. The Act intersects with institutions like the Supreme Court of Canada, the Privy Council of the United Kingdom, the House of Commons of Canada, the Senate of Canada, and legal doctrines developed in cases such as R v Oakes and Reference re Secession of Quebec.

Background and Patriation Process

The patriation process synthesized positions from actors including Pierre Trudeau, René Lévesque, Joe Clark, Brian Mulroney, and premiers from Ontario, Quebec, Alberta, British Columbia, Nova Scotia, New Brunswick, Prince Edward Island, Manitoba, Saskatchewan, and Newfoundland and Labrador. The negotiations followed earlier statutes like the Constitution Act, 1867 (formerly British North America Act, 1867) and intervening judicial decisions such as Patriation Reference and the advisory opinions of the Supreme Court of Canada. The saga involved federal institutions including the Prime Minister of Canada’s office, the Department of Justice (Canada), provincial cabinets, and was influenced by events like the October Crisis and the Quiet Revolution, with public debate across media outlets such as the Globe and Mail, Toronto Star, and La Presse.

Key Provisions and Charter of Rights and Freedoms

The Act entrenched the Canadian Charter of Rights and Freedoms, affecting civil liberties adjudicated by the Supreme Court of Canada, with landmark jurisprudence in matters like R v Oakes, Ford v Quebec (Attorney General), Vriend v Alberta, R v Sparrow, and RJR-MacDonald Inc v Canada (Attorney General). Rights include freedom of expression as litigated in cases involving plaintiffs such as Irwin Toy Ltd and statutes like the Criminal Code (Canada), equality rights tested under precedents including Andrews v Law Society of British Columbia and institutions including the Canadian Human Rights Commission. The Charter interacts with legislation such as the Indian Act, the Official Languages Act, and provincial human rights codes adjudicated by tribunals like the Canadian Human Rights Tribunal and reviewed under principles from judges such as Beverley McLachlin and Antonio Lamer.

Aboriginal Rights and Section 35

Section 35 recognizes and affirms existing aboriginal and treaty rights of the Aboriginal peoples in Canada, including groups like the First Nations, Inuit, and Métis Nation of Ontario, and intersects with historic instruments like the Royal Proclamation of 1763, Treaty of Niagara (1764), and numbered treaties such as Treaty 6 and Treaty 8. Jurisprudence from cases like R v Sparrow, Delgamuukw v British Columbia, R v Van der Peet, Tsilhqot'in Nation v British Columbia, and Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) interprets Section 35. Institutions such as the Assembly of First Nations, the Inuit Tapiriit Kanatami, the Métis National Council, and federal departments including Crown-Indigenous Relations and Northern Affairs Canada engage in negotiations and litigation grounded in the Act.

Constitutional Amendment Formula

The Act establishes amendment procedures including the general "7/50" formula, the unanimity procedure, and bilateral arrangements, affecting constitutional elements overseen by bodies like the Parliament of Canada and provincial legislatures of Ontario, Quebec, Nova Scotia, New Brunswick, Prince Edward Island, Manitoba, Saskatchewan, Alberta, British Columbia, and Newfoundland and Labrador. It provides distinct routes for matters such as the office of the Queen of Canada, the use of English and French under the Official Languages Act, and the composition of the Supreme Court of Canada. Debates referenced meetings such as the Kitchen Accord and political figures including Jean Chrétien and John Turner.

Impact and Legal Interpretation

The Act reshaped constitutional law as interpreted by the Supreme Court of Canada and has been central to rulings like Reference re Secession of Quebec, Reference re Same-Sex Marriage, and R v Morgentaler, shaping doctrines like the notwithstanding clause in Section 33 and limits jurisprudence under Section 1. It influenced institutions including the Canadian Bar Association, academia at institutions like the University of Toronto Faculty of Law, McGill University Faculty of Law, and scholars such as Peter Hogg and Jane Jacobs who commented on federalism and rights. The Act’s interplay with provincial legislation such as the Charter of Rights and Freedoms Act (Ontario) and federal statutes has led to constitutional litigation in courts like the Federal Court of Canada and appellate courts throughout provinces.

Political Debates and Ratification

Ratification involved a mix of federal leadership from Pierre Trudeau and provincial premiers including René Lévesque, Bill Davis, Peter Lougheed, and tensions with Robert Bourassa and Brian Peckford. The failure of Quebec to sign the proclamation led to political movements such as the Quebec sovereignty movement and the Referendums on Quebec independence in 1980 and 1995, which engaged actors like Lucien Bouchard and institutions such as the Bloc Québécois. Public campaigns featured civil society groups including the Canadian Labour Congress, business organizations like the Canadian Chamber of Commerce, and media commentary in outlets such as the National Post.

Implementation and Subsequent Developments

Implementation produced constitutional litigation in cases such as R v Oakes, Reference re Secession of Quebec, Delgamuukw v British Columbia, and R v Sparrow, and legislative responses like the Clarity Act introduced by Jean Chrétien and the Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State debated by Robert Bourassa. Subsequent reforms and negotiations have engaged figures such as Stephen Harper, Justin Trudeau, Paul Martin, Kim Campbell, and institutions including the Privy Council Office (Canada), provincial cabinets, and Indigenous organizations like the Assembly of First Nations. The Act remains a cornerstone in Canadian constitutional architecture, referenced in ongoing dialogues involving courts, legislatures, and civil society actors including Amnesty International and the Canadian Civil Liberties Association.

Category:Canadian constitutional law