Constitution Act, 1982

Contents

1 Overview 2 Constitutional Supremacy 3 What is the Constitution? 4 Amending the Constitution 5 Aboriginal Rights

Overview

The Constitution Act, 1982 is Schedule B to the Canada Act 1982. This document forms part of the Constitution of Canada. For the most part, it is self-sufficient. It modified certain parts of the British North America Act 1867, most notably changing its name to the Constitution Act, 1867.

The Canadian Charter of Rights and Freedoms forms part of the Constitution Act, 1982 but, as it is covered elsewhere, it will not be covered here.

Constitutional Supremacy

Section 52(1) of the Constitution Act, 1982 declares that the Constitution of Canada is supreme, and any law inconsistent with the Constitution is of no force or effect.

What is the Constitution?

Section 52(2) of the Constitution Act, 1982 defines the “Constitution of Canada.” The Constitution of Canada is said to include:

(a) the Canada Act 1982 (which includes the Constitution Act, 1982 in Schedule B),

(b) 30 Acts and Orders contained in the Schedule to the Constitution Act, 1982, and

(c) any amendments which may have been made to any of the instruments in the first two categories.

Section 52(2), in addition to containing many Imperial Statutes, contains eight Canadaian statues, three of which created provinces, and five of which were amendments to the Constitution Act, 1867.

Canada's constitution is unique in that the courts have reserved the right to add and entrench principles and conventions into the Constitution unilaterallly. In New Brunswick Broadcasting Co. v. Speaker of the House of Assembly (N.S.), the Supreme Court of Canada said that s. 52(2) was not an exhaustive listing of all that comprised the Constitution. The Court reserved the right to add unwritten principles to the Constitution, thereby entrenching them and granting them constitutional supremacy (in this case, they added parliamentary privelege to the Constitution). The Court did note, however, that the list of written documents was stagnant and could not be modified except for through the amending formulas.

Amending the Constitution

Section 52(3) of the Constitution Act, 1982 says that constitutional amendments can only be made in accordance with the rules laid out in the Constitution itself. The purpose of this section was to entrench constitutional supremacy and remove the ability of legislators to amend the constitution using simple legislation.

The rules for amending Canada's constitution are quite dense. They are laid out in Part V of the Constitution Act, 1982.

There are five different amendment formulas, each applicable to different types of amendments. These five formula are:

1. The General Formula - s. 38. This covers any amendment procedure not covered more specifically in ss. 41, 43, 44 or 45. The general formula must be used for any of the six situations identified in s. 42.
2. The Unanimity Procedure - s. 41.
3. Some-but-not-all Provinces - s. 43
4. Federal Parliament Alone - s. 44
5. Provincial Legislature Alone - s. 45

Various other sections of Part V lay out such things as compensation for opting out, when and how a province may opt out of a constitutional amendment, and time limits for achieving a constitutional amendment.

Aboriginal Rights

Section 35 of the Constitution Act, 1982 "recognizes and affirms" the rights of aboriginals in Canada. It is not subject to the s. 1 clause which allows rights to be overridden in certain circumstances.

In R. v. Sparrow, the Supreme Court of Canada held that the word "existing" in s. 35(1) meant that s. 35 only entrenched those aboriginal rights that existed at the time of patriation in 1982.