B. Canada’s Entrenched Constitution

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 4-10

Contenidos

• 1) Written Provisions.
• 2) Canada’s Unwritten Constitution.

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1) Written Provisions

The Canadian constitution includes a core set of documents and provisions that are constitutionally entrenched. These core documents include the Constitution Act, 1867 (formerly known as the British North America Act, 1867),²and the Canadian Charter of Rights and Freedoms. They are identified in the Constitution Act, 1982, section 52(1), which states that the provisions falling within this definition are the "supreme law of Canada" and that any inconsistent law is of no force or effect.³The central focus of the study of constitutional law in Canada is the meaning and significance of the provisions that have been consti-

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tutionally entrenched in section 52 of the Constitution Act, 1982. Since any law that is inconsistent with a constitutionally entrenched provision is invalid, any action or decision taken by state officials in reliance on an unconstitutional law is invalid, because these actions will have been taken without legal authority. The study of constitutional law in Canada therefore focuses largely on the validity of laws and government action based on the authority defined by section 52 of the Constitution Act, 1982. Any state decision or action, in order to be legally valid, must be consistent with the provisions that have been constitutionally entrenched in section 52. This does not mean that the particular decision or action must itself be specifically referred to in section 52, but it does require that the legal basis for the decision - most often a statute - must be consistent with these entrenched provisions. The section 52 provisions constitute the set of primary rules that are used to measure the validity of what could be called "secondary rules" - statutes enacted by Parliament or the provincial legislatures and government decisions taken on the basis of those statutory provisions.

Section 52(2) of the Constitution Act, 1982 states that the "Constitution of Canada" or the "supreme law of Canada" includes the following:

· the Constitution Act, 1867 (originally the BNA Act) - a U.K. statute that established the Dominion of Canada out of three colonies in British North America. The BNA Act defined Canada as a federal state, creating four original provinces (Ontario, Quebec, Nova Scotia, and New Brunswick), and set out the respective legislative powers of Parliament and the provincial legislatures. It also provided a mechanism for the admission of new provinces to the Dominion. Although the Constitution Act, 1867 has been amended (mostly by the U.K. Parliament) over twenty times since its original enactment, the basic structure established in 1867 remains largely intact and it continues to define the basic framework for Canada’s political institutions;

· the Canada Act 1982 - a short four-section U.K. statute that enacted the Constitution Act, 1982 and abolished the authority of the Westminster Parliament to legislate for Canada in the future. Until 1982, the U.K. Parliament had retained the formal legal authority to amend the BNA Act. Since the early twentieth century, however, Britain had exercised this power only at the request of Canadian political authorities, in recognition of Canada’s political independence from Great Britain. It was for this reason that the enactment of the Canada Act itself required the enactment of a statute by the U.K. Parliament, at the request of the Canadian government. The

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termination of Westminster’s legal authority over Canada in April of 1982 is commonly referred to as the "patriation" of the Canadian constitution;

· the Constitution Act, 1982 - a U.K. statute that was enacted through the Canada Act 1982. The Constitution Act, 1982, includes the Charter, guarantees for Aboriginal rights, and a constitutional amendment procedure that permits Canada’s political institutions to amend any part of the country’s constitution if certain conditions have been met. The Constitution Act, 1982, also provides for the supremacy of Canada’s written or entrenched constitution;

· various statutes or regulations of constitutional significance that were enacted between 1867 and 1982, all of which are specifically enumerated in a schedule to the Constitution Act, 1982. These enactments mainly consist of amendments to the BNA Act, statutes or orders in council admitting various provinces or territories to Canada between 1870 and 1949,⁴and the...