An Introduction to the Study of the Canadian Constitution

AuthorPatrick J. Monahan/Byron Shaw/Padraic Ryan
A country’s constitution is the set of fundamental principles that de-
scribe the organizational framework of the state and the nature, scope,
and limitations on the exercise of state authority. A constitution may
be described as a body of rules about law making: it represents a pri-
mary set of rules that def‌ines how the ordinar y rules or laws in a soci-
ety are to be made or changed. A constitution def‌ines the relationship
among different kinds of laws by e stablishing their relative priority
and clarifying how conf‌licts are resolved. In addition, a constitution
describes how the primary or constitutional rules themselves can be
created or changed.
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 exercise of legislative
or law-mak ing authority.
A constitution does not have to impose any substantive 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 c an make or unmake any law on any subject. Thus,
the only historical limit on U.K. legislative authority is the inability of
Parliament to bind its successors; that is, one Parliament cannot pre-
vent a later Parliament from amending an existing law.1
The alternative approach — one that has become increasingly 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 cannot be
amended through the ordinar y process of law making.
An entrenched constitution places li mits 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 itself is in-
valid because it violates the provisions of the entrenched constitution.
In societies with an entrenched constitution, the constitution functions
as a kind of “supreme law” against which ordinary legislation can and
must be measured.
1) Written Provisions
The Canadian constitution includes a core set of documents and pro-
visions that are constitutionally 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 inconsistent law is of no force or effect.3
The central focus of the study of constitutional law in Canada is
the meaning and signif‌icance of the provisions that have 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 Europea n Convention on Human Rights;
however, where such a declarat ion is made, the legislation cont inues 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 amen dments that were enacted
in 1982. The Act is referred t o as the Constitution Act, 1867 or, for historical
references, the BNA Act.
3 The Constitution Act, 1982, was enacted by the Ca nada Act 1982 (U.K.), 1982,
c. 11, Sched. B.

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