The Constitution of Canada

A Contextual Analysis

Jeremy Webber

• Publisher: Hart Publishing
• Year: 2021
• Print ISBN: 9781509947171
• eBook ISBN: 9781509947188
• Edition: 2
• Topic: Law
• Subtopic: Public Law
• Index: Law

The first edition of this text quickly established itself as the classic introduction to the Canadian constitution. Setting it in its historical context, noting especially the complex interaction of national and regional societies, it shows how the constitution continues to morph and shape itself.

These changes are explored through key constitutional themes: democracy; parliamentarism; the rule of law; federalism; human rights; and Indigenous rights, and describes the country that has resulted from the interplay of these themes.

Clarity of expression and explanation, which never veers into simplicity, combined with the author's expertise, makes this the ideal starting point for the student or comparative lawyer keen to gain a strong understanding of how Canadian democracy and government works.

1

Introduction

Themes – Constitutional Sources – Constitutional Texts

The Constitution of Canada has had many framers: individuals and communities who have shaped the structure of government by their accumulated actions over time, often without aiming at comprehensive constitutional reform. Canada was not constituted by a single act of will or by a set of founding fathers acting in a privileged ‘constitutional moment’.¹ It has never taken a thoroughly rationalized form. Instead, it consists of a number of themes, each with its own origin, players, concerns, momentum through time, and distinctive relationship to Canada’s societies.

These themes have not been independent of one another. They have interacted in complex ways. But their interaction has often seemed like the varying, displaced, sometimes dissonant, sometimes harmonic juxtaposition that occurs in some minimalist music when different themes, starting in different places, form patterns as they shift in and out of phase. Or perhaps that is too urbane and mechanical a metaphor, leaving too little room for the performers’ agency and responsiveness to place. A better image might be the reels of Métis fiddlers, each stimulating and playing back against the other, drawing on French and Scottish forms – although these have been adapted over time with, in some reels, a leavening from Cree traditions.² Or perhaps that image is too woodsy for a country as urbanized and cosmopolitan as Canada. Perhaps the appropriate metaphor is a complex amalgam of minimalism and Métis fiddling and …

Enough – all metaphors have their limitations, and this one has just lapsed into incoherence. But the essential point remains: it is useful to understand the Canadian constitution in terms of a number of largely discrete themes that have never been carefully rationalized and that have interacted – and continue to interact – over time. We will follow those themes throughout this overview of Canadian constitutional law. Indeed, they account in large measure for the structure of this book.

The first theme focuses on the attempt to place a grid of territorial jurisdictions across the Canadian landscape, beginning with the initial establishment of colonies and moving to their amalgamation into larger territorial units, the transfer of lands from imperial control to Canadian control, and the creation of new jurisdictions – new provinces, new territories – out of larger units. While this theme was most pronounced in the early years of European settlement, it continues today in the increasing recognition of Indigenous jurisdictions through treaty negotiations, self-government agreements, and other means. Moreover, the Canadian constitutional order remains troubled – sometimes more, sometimes less – by one potentially cataclysmic territorial reorganization: the possibility that the province of Quebec might one day secede from Canada.

A second theme concerns the development of the internal structure of the executive, legislature, and judiciary, and the relationship among these bodies – the fashioning, in other words, of the structure and operation of democratic government in Canada. This theme includes early efforts to make colonial governments accountable to their citizens rather than to imperial authorities, a struggle that was closely associated with the territorial organization of Canadian governance. It continues today in debates over electoral reform, the Canadian Senate, the accountability of the executive to Parliament, and the role of the courts in reviewing legislative and executive action.

The third theme deals with the evolution of federalism in Canada. Canada has been a federal state since 1867, with its political decision-making divided between the federal level of government and the provinces. Initially there were four provinces (New Brunswick, Nova Scotia, Ontario, and Quebec); now there are ten (the original four plus, in order of admission, Manitoba, British Columbia, Prince Edward Island, Alberta, Saskatchewan, and the province of Newfoundland and Labrador (which I will generally refer to as ‘Newfoundland’)). There are also three largely self-governing territories, established by the federal Parliament: the Northwest Territories, Yukon, and Nunavut. At least until 1982, but probably still today, the bulk of constitutional debate in Canada has concerned the balance between the central and provincial powers. The diversity of Canada, particularly the presence of a vigorous French-speaking society centred in Quebec, but also regional economies, histories, identities, and loyalties, has often resulted in the provinces fiercely defending their jurisdiction. This defence has come into conflict with other strong commitments to building a Canadian nation and developing a pan-Canadian market.

A fourth theme is human rights. Like the others, this theme is of long standing in Canadian constitutional law. Up until 1982, the concern with rights was expressed primarily in the characteristic forms of the British constitutional tradition, namely through democratic political rights, not through judicial review by courts. Thus, Catholics obtained the right to participate in political life early in Canada’s history as a British colony (indeed 50 years before Catholic enfranchisement in Britain). The democratic focus also applied to remedies: the guarantees for minority religious schools contained in Canada’s 1867 constitution were to be enforced primarily by federal legislative action. But over time, Canada has moved decisively to adopt judicial review on human rights grounds, most dramatically with the enactment of the Canadian Charter of Rights and Freedoms in 1982.³ One impetus for this change was a perception that while the previous approach to rights protection may have worked reasonably well for the groups contemplated by early constitutional provisions – English and French, Protestant and Catholic – it had been much less effective at guaranteeing equality to women, citizens of other ethnicities, and adherents of non-Christian religions.

A fifth theme is the long encounter between Indigenous and non-Indigenous peoples. This, of course, began with the first arrival of Europeans in northern North America. The first British constitution of what became Canada, the Royal Proclamation of 1763,⁴ contains important provisions with respect to Indigenous peoples, provisions that remain significant in Canadian law today. The Proclamation built upon and codified earlier practices of treaty-making. The relationship between the Canadian state and Indigenous peoples still constitutes one of the most active areas of constitutional concern, driven by Indigenous peoples’ insistence on their rights to their lands and governments, the protection of Indigenous rights in the Constitution Act 1982, and the negotiation of modern-day treaties.

Canada’s engagement in supranational institutions is the sixth and final theme. The colonies that became Canada were initially offshoots of two European powers: France and Great Britain. Canada’s constitution initially developed within the framework of the British Empire. British legislative authority over the country continued, albeit much reduced in scope, in substance until the 1930s and in form until 1982. But there has always been another leading contender to be Canada’s main international partner: the United States. During the last 35 years, Canada has moved decisively to expand its economic links with the United States, concluding a comprehensive trade agreement in 1988, revised and transformed – now including Mexico – in 1994 and 2020.⁵ At the same time, Canada has sought to assume an independent role as a middle power on the international stage. This complex of international engagements significantly shapes the decision-making of Canadian governments, in practice if not yet in constitutional theory. These developments are usually considered a part of international law, not constitutional law – an exercise of Canadian sovereignty, not a modification of it – and we therefore discuss them only briefly. Nevertheless, they are worth noting, for they increasingly frame the exercise of Canadian authority.

This diversity of themes is reflected in the diversity of sources of Canadian constitutional law. The Schedule to the Constitution Act 1982 lists 30 instruments adopted between 1867 and 1975 that are expressly stated to be part of ‘the Constitution of Canada’ and that are therefore subject to the constitutional amending formula. The Constitution Act 1982 itself must be added to that number. Moreover, the list is not exhaustive; courts have held that certain matters that are not expressly included are constitutionally entrenched. Section 35 of the Constitution Act 1982 extends limited constitutional protection to treaties with Indigenous peoples. What is more, the entrenched dimensions of the ‘Constitution of Canada’ only cover instruments that are subject to the constitutional amending formula and do not include, for example, ordinary statutes that shape the operations of government. They also do not include, except in the most rudimentary fashion, the constitutions of the provinces, which are generally unwritten or regulated by ordinary statute; the territories, which are based on federal statutes; or Indigenous polities, which, though shaped and deflected by their encounter with non-Indigenous institutions, have their roots in Indigenous peoples’ own legal orders. Moreover, vast swathes of the Canadian constitution remain unwritten, based on British constitutional tradition and interpreted, extended, and supplemented as a function of Canada’s specific historical development.

The state of Canada’s constitutional sources is not as chaotic as this catalogue might suggest, however. Any written constitution, even the most elaborate, is framed against a rich background of practice that cannot possibly be reduced to writing. Moreover, many of the written instruments listed in the Schedule to the Constitution Act 1982 are minor in scope or largely spent in their effect. Two instruments stand above all others in the firmament of the Canadian constitution, to the extent that, for the vast majority of matters, they serve as that constitution’s textual foundation. The first is the Constitution Act 1867, originally known as the British North America (BNA) Act 1867.⁶ The BNA Act 1867 united three separate colonies in a federal structure and contemplated that this structure would ultimately extend to include all of Britain’s North American territories – an expectation that was completely fulfilled only when Newfoundland joined Canada in 1949. Today, the Constitution Act 1867 continues to specify the executive, legislative, and judicial authority of Canada, albeit in a rudimentary fashion. Further, and most importantly, it regulates the division of legislative powers between the federal and provincial levels of government.

The second foundational document is the Constitution Act 1982. This instrument achieved the ‘patriation’ of the Canadian constitution by creating a comprehensive, entirely Canadian formula for its amendment, definitively severing Canada from British legislative authority. It also adopted an entrenched bill of rights, the Canadian Charter of Rights and Freedoms, recognized and affirmed the ‘existing aboriginal and treaty rights of the aboriginal peoples of Canada’, and listed and renamed the principal texts of the ‘Constitution of Canada’.

We will be returning repeatedly to these two instruments. Nevertheless, the Canadian constitution cannot be understood without placing them within the current of Canada’s constitutional history. That is where we begin. Chapter 2 provides an overview of that history, introducing the evolution of Canada’s jurisdictions and institutions, and the contextual factors that operate as the constitution’s essential interpretive ground. This also provides background on Canada’s contemporary constitutional debates. Throughout this book, we will encounter the historical complexity of Canada’s constitutional tradition. This complexity has, at its best, been immensely fruitful, not debilitating, reflecting the rich interaction of Canada’s political communities. Not everyone has appreciated it. Some constitutional actors have deplored it. Periodically, there have been concerted attempts to clean it up. The reforms of 1982 were driven in part by such a desire, symbolized most clearly in the renaming of many of the old instruments, including the British North America Act 1867. As we will see, that clean-up attempt was only partially successful for, I believe, very good reasons.

Efforts to rationalize the Canadian constitution have generally sought to establish a single overarching theory of the constitution within which each of its parts can be ordered and explained. But Canada’s societies have been resistant to comprehensive definition. Although citizens in each of the founding colonies originally looked upon the new federal government with some suspicion, English-speaking Canadians have, over time, shifted their allegiances so that Canada is now, unambiguously, their only nation. The same has not been true, by and large, of French-speaking Quebecers. They remain firmly committed to the maintenance of a French-speaking society in North America, a concept that finds an essential political expression in Quebec, given that it is the only jurisdiction with a French-speaking majority. Most Quebecers do still consider themselves to be Canadian; like other Canadians, they are masters of multiple allegiances. They see no contradiction in being, at one and the same time, fully committed to Quebec and to Canada (as, to a lesser extent, do other Canadians, Newfoundlanders above all). But the unconditional strength of Quebecers’ allegiance to Quebec means that they weight their allegiances differently, which in turn shapes their conception of the country, strengthens their commitment to provincial autonomy, structures their ideas of legitimacy and authority, and places them always in a more sceptical and arm’s-length relationship to federal institutions. They are attracted to conceptions of the Canadian constitution, even conceptions of the ground of sovereignty, which assign a greater role to the provinces and to ‘two founding peoples’: English and French. One might make a similar argument – indeed, a stronger argument – about Indigenous peoples. They too look at the country from different historical and national vantage points, asserting their own understandings of jurisdiction, authority, legitimacy, responsibility, and law. Indeed, they vehemently reject the idea that Canada has only two founding peoples.

The various constituents of Canada have often disagreed, then, over their constitutional visions. They have pushed back against initiatives meant to cast Canada in simpler, more symmetrical and more uniform constitutional terms. Those who believe that a constitution must be based on a common foundation of nationhood, on an agreement over the basic terms of governance, might therefore wonder how Canada works at all. Yet, despite all these differences over fundamentals, Canada has persisted as a country. Indeed, it has prospered, although, as Indigenous peoples could testify, that prosperity has been concentrated among some Canadians and denied to others. It has also prospered in terms that are more than simply economic, for it has developed its own distinctive literary voices, its own traditions of public policy, legislative development, legal interpretation, and international engagement, and its own theoretical conversation on nationhood, constitutionalism, and the politics of identity.⁷ These theories have drawn inspiration from the experience of a democratic, bilingual, multicultural, and multinational polity in North America. I do not mean to idealize that experience. Canada has its share of failures and injustices, which will be evident in the pages that follow. But despite its perennial disagreements – perhaps because of them – Canada is a real country, not a perfect one, but one with well-developed institutions, density in its internal debates, and distinctive things to say to the world. Thus far, Canadians have sustained a polity that does not require a single constitutional vision of its members, but that places the ability to live together ahead of the desire for a uniform idea of nationhood. Moreover, there have been some signs in recent decisions that Canadian courts are moving towards a constitutional jurisprudence adapted to such a polity, where fundamental questions, even questions of sovereignty, are held in abeyance.

This is agonistic constitutionalism: a constitutionalism in which contending positions are seen to be essential to the society, animating it, and where these positions are not neatly contained within a comprehensive, overarching theory. We will return to this idea in the conclusion, once we have seen the Canadian constitution in operation. It is a constitutionalism that may be appropriate for many countries, perhaps for all. It takes the diversity of the country as it finds it, and treats the development of its constitution as something that must proceed day by day, not through the fiat of a closed set of founding fathers or their privileged successors. But I will not belabour that argument now. That suggestion will remain in the background as I seek to describe, as faithfully as I can, the Canadian constitution with all its currents and cross-currents.

¹The phrase is Bruce Ackerman’s: We the People: Transformations (Cambridge, MA, Harvard University Press, 1998) 409.

²The Métis are one of three classes of Indigenous peoples in Canada, the others being First Nations (previously called ‘Indians’) and Inuit (previously called ‘Eskimos’). Together, they are the ‘aboriginal peoples of Canada’ recognized in section 35, Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), c 11. I will use the terminology now preferred by the Indigenous peoples – ‘Indigenous’ instead of ‘Aboriginal’; ‘First Nations’ instead of ‘Indians’; ‘Inuit’ instead of ‘Eskimos’ – except when referring to the common law of Aboriginal title or the terms of the constitution. See chapter 8.

The Métis are descendants of unions between European fur traders and Indigenous women who developed their own distinct customs, language and collective identity. See Anne Lederman, ‘O...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Table of Contents
• Table of Cases
• Table of Legislation
• 1. Introduction
• 2. The Making of the Canadian Constitution
• 3. The Legislative Power
• 4. The Executive Power
• 5. The Judiciary
• 6. Federalism
• 7. Rights and Freedoms
• 8. Indigenous Peoples
• 9. Conclusion
• Index
• Copyright Page