An Introduction to the Study of the Canadian Constitution

• Author: Patrick J. Monahan, Byron Shaw
• Pages: 3-28

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CHA PTER 1

AN INTRODUCTION

TO THE STUDY OF

THE CANADIAN

CONSTITUTION

A. THE CONSTITUTION DEFINED

A country’s constitution is the set of fund amental principles that de-

scribe the organizational framework of the state and the nature, scope,

and limitations on the exerci se of state authority. A constitution may be

described as a body of rules about law making: it represents a primary

set of rules that def‌ines how the ordinary rules or laws in a society are

to be made or changed. A constitution def‌ines t he relationship among

different kinds of laws by e stablishing their relat ive priority and clari-

fying how conf‌licts are resolved. In addition, a constitution describes

how the primary or constitutional rules thems elves can be created or

change d.

Def‌ined in this gener ic way, it can be said that all nation state s have

constitutions, since all countries have certain organizing principles or

rules for the exercise of state authority. However, one important distin-

guishing feature among constitutions of different countries is the ex-

tent to which they attempt to place limits on the exerci se of legislative

or law-mak ing author ity.

A constitution does not have to impose any substa ntive limits on

the legislative power of state inst itutions. The doctrine of parlia mentary

supremacy, which lies at the heart of the U.K. constitutional tradition,

states that Parliament can make or unmake any law on any subject.

Thus, the only historical lim it on U.K. legislative authority is the inabil-

CONSTITUTIONA L LAW

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ity of Parliament to bind its successors; th at is, one Parliament cannot

prevent a later Parliament from amending an exi sting law.1

The alternative approach — one that has become increa singly popu-

lar around the world in the past f‌ifty years — is to entrench certain

substantive limits on the manner in which state power can be exer-

cised. When rules are “constitutionally entrenched,” they are set out in

a fundamental constitutional document that takes precedence over all

other laws. Furthermore, constitutionally entrenched rules can not be

amended through the ordinar y process of law making.

An entrenched constitution places limits on the laws enacted by

the legislature. An entrenched constitution permits individuals to chal-

lenge government decisions not merely on grounds that they exceed the

authority set out in state law, but also because the law itsel f is invalid

because it violates the provisions of the entrenched constitution. In so-

cieties with an entrenched constitution, the constitution functions as a

kind of “supreme law” against which ordina ry legislation can and must

be measured.

B. CANADA’S ENTRENCHED CONSTITUTION

1) Written Provisions

The Canadian constitution includes a core set of documents and provi-

sions that are constitutional ly entrenched. These core documents in-

clude the Constitution Act, 1867 (formerly known as the British North

America Act, 1867),2 and the Canadian Charter of Rights and Freedoms.

They are identif‌ied in the Constitution Act, 1982, section 52(1), which

states that the provi sions falling within th is def‌inition are the “supreme

law of Canada” and that any inconsi stent law is of no force or effect.3

The central focus of the study of constitutional law i n Canada is

the meaning and signif‌icance of the provisions that h ave been consti-

1 The Human Rights Act 1998 (U.K.), 1998, c. 42, permits U.K. courts to decl are

that legisl ation adopted by the British Parl iament at Westminster is “i ncompat-

ible” with cert ain provisions of the Europe an Convention on Human Rights;

however, where such a declarat ion is made, the legislation c ontinues in force

until amended .

2 The British North Ame rica Act, 1867 (U.K.), 30 & 31 Vict., c. 3, was renamed the

Constitution Act, 1867, in the constitutional a mendments that were enacte d in

1982. The Act is referred to a s the Constitution Act, 1867 or, for historical refer-

ences, the BNA Ac t.

3 The Constitution Act, 1982, was enacted by t he Canada Act 1982 (U.K.), 1982,

c. 11, Sched. B.