Constitutional law of Canada

Constitutional law of Canada
Name	Constitutional law of Canada
Jurisdiction	Canada
Subject	Constitution
Established	1867
Documents	Constitution Act, 1867, Constitution Act, 1982, Canadian Charter of Rights and Freedoms
Courts	Supreme Court of Canada, Federal Court of Canada, Court of Appeal for Ontario
Legislature	Parliament of Canada
Executive	Monarchy of Canada, Prime Minister of Canada, Cabinet of Canada

Constitutional law of Canada presents the legal framework that organizes Canada as a constitutional monarchy and a federal polity. It synthesizes historic instruments such as the British North America Act, 1867 and modern texts such as the Constitution Act, 1982 including the Canadian Charter of Rights and Freedoms, and it is interpreted by judicial bodies including the Supreme Court of Canada, Provincial Courts of Appeal, and the Judicial Committee of the Privy Council historically. Constitutional law interacts with institutions like the Parliament of Canada, provincial legislatures such as the Legislative Assembly of Ontario, and offices such as the Governor General of Canada and the Prime Minister of Canada.

History and Sources

The constitutional order derives from statutes and conventions: the Constitution Act, 1867 (originally the British North America Act, 1867), the Statute of Westminster 1931, and the Constitution Act, 1982 which patriated the constitution and added the Canadian Charter of Rights and Freedoms and the aboriginal rights provisions recognizing Indigenous peoples in Canada including First Nations, Inuit, and Métis. Early judicial development involved the Judicial Committee of the Privy Council in decisions affecting federalism like Hodge v. The Queen and later stages saw the Supreme Court of Canada asserting authority in cases such as Reference re Secession of Quebec. Political moments shaping sources included the Quebec Conference, 1864, the Charlottetown Conference, the Fathers of Confederation, and constitutional negotiations like the Meech Lake Accord and the Charlottetown Accord. Doctrinal sources include common law as articulated in judgments from courts such as the Ontario Court of Appeal and principles from texts like the Constitution Act, 1867 preamble.

Structure of the Constitution

The written structure rests on documents: the Constitution Act, 1867 sets out federal institutions including the House of Commons of Canada and the Senate of Canada; the Constitution Act, 1982 contains the Canadian Charter of Rights and Freedoms and the Amending Formula. Constitutional monarchy elements derive from the Monarchy of Canada and the Royal Prerogative as exercised by the Governor General of Canada and the Lieutenant Governor of Ontario. Provinces such as Quebec and British Columbia retain powers under sections of the Constitution Act, 1867 like section 92. Other instruments include orders in council and statutes such as the Canada Act 1982 enacted by the Parliament of the United Kingdom.

Fundamental Rights and Freedoms

The Canadian Charter of Rights and Freedoms guarantees rights including freedom of expression as demonstrated in cases like R v. Keegstra, equality rights reflected in Andrews v. Law Society of British Columbia, mobility rights underpinning decisions such as R v. Morgentaler debates, and legal rights showcased in R v. Oakes which established the proportionality test. Interaction with statutes such as the Indian Act and institutions like the Royal Canadian Mounted Police has produced litigation on rights for groups including LGBT rights in Canada, women's rights in Canada, and racial minorities in Canada. Remedies and interpretations involve doctrines like the notwithstanding clause (section 33) and principles from cases such as Vriend v. Alberta and Canada (Attorney General) v. Bedford.

Division of Powers and Federalism

Division of powers between the Parliament of Canada and provincial legislatures such as the Legislative Assembly of Alberta is governed by sections 91 and 92 of the Constitution Act, 1867 and tested in cases including R v. Crown Zellerbach Canada Ltd. and Reference re Assisted Human Reproduction Act. Doctrines like the pith and substance analysis, interjurisdictional immunity (e.g. Canadian Western Bank v. Alberta), and federal paramountcy arose in cases such as Multiple Access Ltd v. McCutcheon and Reference re Firearms Act (Canada). Fiscal federalism uses mechanisms like the Canadian Equalization Program and agreements such as the Canada Health Act and the Fiscal Arrangements Act to allocate resources among jurisdictions including Nova Scotia and Saskatchewan.

Constitutional Institutions and Processes

Institutions interpreting and applying constitutional law include the Supreme Court of Canada, Federal Court of Appeal, and provincial courts such as the Quebec Court of Appeal. Political institutions include the Governor General of Canada, the Prime Minister of Canada, the Cabinet of Canada, and legislatures like the National Assembly of Quebec. Processes encompass royal assent, prorogation as exercised by the Governor General of Canada, confidence conventions seen in the 2008 Canadian parliamentary dispute, and reserve powers exemplified in controversies like the King–Byng Affair. Administrative law bodies like the Federal Court and regulatory agencies such as the Canadian Radio-television and Telecommunications Commission interact with constitutional principles.

Constitutional Amendment and Judicial Review

Amendment procedures are set by formulas in the Constitution Act, 1982 including the 7/50 rule and unanimity provisions for matters affecting the Monarchy of Canada or provincial powers; attempts at reform include the Pan-Canadian Framework discussions and failures such as the Meech Lake Accord and the Charlottetown Accord. Judicial review is exercised by courts such as the Supreme Court of Canada and the Federal Court of Appeal in cases like Reference re Senate Reform and Reference re Same-Sex Marriage. Doctrines of justiciability, standing illustrated in Thorson v. Canada, and remedies such as declaratory relief and suspension of declarations of invalidity arise from jurisprudence including RJR-MacDonald Inc v. Canada (Attorney General).

Notable Cases and Doctrines

Influential cases and doctrines shaping Canadian constitutional law include R v. Oakes (Oakes test), R v. Sparrow (aboriginal rights), Reference re Secession of Quebec (principles of federalism and secession), R v. Morgentaler (privacy and health law), Patriation Reference (constitutional conventions), Vriend v. Alberta (equality), Canadian Foundation for Children, Youth and the Law v. Canada (section 1 analysis), R v. Big M Drug Mart Ltd. (freedom of religion), and R v. Collins (search and seizure). Doctrines include the notwithstanding clause, pith and substance, interjurisdictional immunity, federal paramountcy, and the living tree doctrine from cases such as Edwards v. Canada (Attorney General) and Persons Case. Other notable decisions include Reference re Firearms Act (Canada), R v. Drybones, Reference re Senate Reform, R v. Keegstra, and Carter v. Canada (Attorney General) which collectively map constitutional development across provinces like Ontario and Quebec and institutions like the Royal Canadian Mounted Police.

Category:Law of Canada