In many countries formed by revolution or an act of independence – the United States is the best example – most constitutional law is contained in a single document. In a democracy with a written constitution, legislators cannot make just any laws they wish. A country’s constitution, among other things, defines the powers and limits of powers that can be exercised by the different levels and branches of government.
Canada, in contrast, became a country by an act of the Parliament of Great Britain. Consequently, the closest thing to a constitutional document would be the British North America Act of 1867 (the BNA Act, now known as the Constitution Act, 1867), by which the British colonies of Upper and Lower Canada, Nova Scotia, and New Brunswick were united in a confederation called the Dominion of Canada. (Prince Edward Island, although a member of the team that shaped Confederation, did not join until later.)
Although there is no single constitution in Canadian law, the Constitution Act – a part of the Canada Act of 1982 – finally “patriated” or brought home from Great Britain Canada’s constitution as created by the BNA Act. The Constitution Act declares the Constitution of Canada to be the supreme law of Canada and includes some 30 acts and orders that are part of it. It reaffirms Canada’s dual legal system by stating provinces have exclusive jurisdiction over property and civil rights. It also includes Aboriginal rights, those related to the historical occupancy and use of the land by Aboriginal peoples, treaty rights, agreements between the Crown and particular groups of Aboriginal people.
Because of Canada’s dual legal system (bijuralism), every federal law must be drafted in both official languages but it must also respect both the common-law and civil-law traditions in the provinces.
Confederation of the colonies into the Dominion of Canada did not involve any break with the Imperial government. The new country was still part of the British Empire, governed by authority appointed by the monarch on the advice of the British Colonial Secretary at Westminster. The BNA Act provided for confederation, but it did not codify a new set of constitutional rules for Canada or even include a clause for amending or changing the Act. For this reason, until 1982 any amendments to the BNA Act had to be enacted by the Parliament in England.
The Constitution sets out the basic principles of democratic government in Canada when it defines the powers of the three branches of government: the executive, the legislative and the judicial. The executive power in Canada is vested in the Queen. In our democratic society, this is only a constitutional convention, as the real executive power rests with the Cabinet. The Cabinet, at the federal level, consists of the Prime Minister and Ministers who are answerable to Parliament for government activities. As well, Ministers are responsible for government departments, such as the Department of Finance and the Department of Justice. When we say “the government” in a general way, we are usually referring to the executive.
The legislative branch is Parliament, which consists of the House of Commons, the Senate and the Monarch or her representative, the Governor General. Most laws in Canada are first examined and discussed by the Cabinet, then presented for debate and approval by members of the House of Commons and the Senate. Before a bill becomes a law, the Queen or her representative, the Governor General, must also approve or “assent to” it. This requirement of royal assent does not mean that the Queen is politically powerful; by constitutional convention, the Monarch always follows the advice of the government.
The Minister of Justice is responsible for the Department of Justice, which provides legal services such as drafting laws and providing lawyers for the government and its departments. This department also develops policies and programs for victims, families, children and youth criminal justice. The Minister of Justice is also the Attorney General or chief law officer of Canada.
In the provinces, the same process applies but the Queen’s provincial representative is called the Lieutenant Governor.
Our Constitution also provides for a judiciary, the judges who preside over cases before the courts. The role of the judiciary is to interpret and apply the law and the Constitution, and to give impartial judgments in all cases, whether they involve public law, such as a criminal case, or private (civil) law, such as a dispute over a contract. They also contribute to the common law when they interpret previous decisions or set new precedents.
The Constitution provides only for federally appointed judges. Provincial judges are appointed to office under provincial laws.
Under Canada’s federal system of government the authority or “jurisdiction” to make laws is divided between the Parliament of Canada and the provincial and territorial legislatures. Parliament can make laws for all Canada, but only about matters assigned to it by the Constitution. A provincial or territorial legislature, likewise, can make laws only about matters over which it has been assigned jurisdiction. This means these laws apply only within the province’s borders.
Australia and the United States also have federal systems in which jurisdiction is divided between the federal government and the various states. In contrast, in the United Kingdom Parliament has sole authority to pass laws for the entire country.
The federal Parliament deals, for the most part, with issues concerning Canada as a whole, such as trade between provinces, national defence, criminal law, money, patents and the postal service. It is responsible as well for the Yukon, the Northwest Territories and Nunavut.
The provinces have the authority to make laws concerning education, property, civil rights, the administration of justice, hospitals, municipalities and other matters of a local or private nature within the provinces. Federal law allows territories to elect councils with powers similar to those of the provincial legislatures, and citizens of territories thus govern themselves.
There are also local or municipal governments. They are created under provincial laws and can make bylaws regulating a variety of local matters, such as zoning, smoking, pesticide use, parking, business regulations, and construction permits.
Finally, Aboriginal peoples in Canada have different types of government. For example, Indian bands can have a range of governmental powers over reserve lands under the federal Indian Act. Other Aboriginal governments, such as self-governments, exercise governmental powers as a result of specific agreements negotiated with the federal and provincial or territorial governments.
Courtesy: Department of Justice