The Constitution of Canada in Outline

Sections 91 to 95: the distribution of legislative powers. Section 91 gives the Parliament of Canada power to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the legislatures of the provinces, followed by an enumeration for greater certainty. Section 92 enumerates the exclusive provincial classes. Section 92A, added in 1982, deals with non-renewable natural resources. Section 93 education. Section 94A old age pensions. Section 95 agriculture and immigration, concurrent with federal paramountcy.

Sections 96 to 101: judicature. Section 96 gives the Governor General the appointment of the judges of the superior, district and county courts in each province. Section 99 provides that judges of the superior courts hold office during good behaviour and are removable on address of the Senate and House of Commons, with a retiring age of seventy five. Section 100 places their salaries on Parliament. Section 101 permits Parliament to provide for a general court of appeal for Canada, under which the Supreme Court of Canada was created in 1875.

Sections 102 to 126: revenues, debts, assets and taxation. The consolidated revenue fund, the charges upon it, the debts and assets of the provinces, and section 121, that all articles of the growth, produce or manufacture of any one province shall be admitted free into each of the other provinces.

Sections 127 to 144: miscellaneous provisions. Sections 128 and 129 the oath and the continuance of existing laws, courts and officers; section 130 continuance of officers; section 132 treaty obligations of the Empire; section 133, which requires either English or French to be used in the debates of the Parliament of Canada and of the legislature of Quebec, requires the records and journals to be kept in both, permits either in the courts, and requires the Acts to be printed and published in both. Sections 134 to 144 are transitional provisions for Ontario and Quebec.

Sections 145 to 147: the Intercolonial Railway and the admission of other colonies. Section 145, on the railway, has been repealed. Section 146 permits the admission of Newfoundland, Prince Edward Island, British Columbia, Rupert's Land and the North-Western Territory by Order in Council. Section 147 provides for the Senate representation of Newfoundland and Prince Edward Island on admission.

The Constitution Act 1982

Sections 1 to 34: the Canadian Charter of Rights and Freedoms.

Section 1 is the limitation clause: the Charter guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The test for it is in R v. Oakes, [1986] 1 SCR 103, decided on 28 February 1986.

Section 2 the fundamental freedoms of conscience and religion, thought, belief, opinion and expression including freedom of the press, peaceful assembly and association. Sections 3 to 5 the democratic rights, including the right to vote and the maximum duration of legislative bodies. Section 6 mobility rights. Sections 7 to 14 the legal rights: life, liberty and security of the person and the right not to be deprived except in accordance with the principles of fundamental justice; unreasonable search and seizure; arbitrary detention; arrest and detention rights; proceedings in criminal matters; cruel and unusual treatment or punishment; self-incrimination; and the assistance of an interpreter. Section 15 equality rights, with section 15(2) preserving affirmative action programmes.

Sections 16 to 23 the official languages of Canada and minority language educational rights.

Sections 24 to 31 enforcement and general provisions: section 24(1) permits application to a court of competent jurisdiction for such remedy as the court considers appropriate and just; section 24(2) provides for the exclusion of evidence obtained in a manner that infringed a Charter right where its admission would bring the administration of justice into disrepute; section 25 protects aboriginal rights and freedoms from being abrogated by the Charter; section 26 preserves other rights; section 27 requires interpretation consistent with the multicultural heritage of Canadians; section 28 guarantees the rights equally to male and female persons; section 29 preserves denominational school rights; section 30 applies the Charter to territories; and section 31 provides that nothing in the Charter extends legislative powers.

Sections 32 to 34: section 32 applies the Charter to Parliament and the legislatures and their governments; section 33 is the notwithstanding clause, permitting Parliament or a provincial legislature expressly to declare that an Act shall operate notwithstanding sections 2 or 7 to 15, for five years, renewable; section 34 gives the Charter its citation.

Sections 35 to 37: aboriginal rights. Section 35 recognises and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada, and defines those peoples as including the Indian, Inuit and Metis peoples. Section 35.1 requires a constitutional conference before amending certain provisions. Sections 36 and 37 provide for equalisation and regional disparities and for constitutional conferences.

Sections 38 to 49: Part V, the amending procedures. Section 38 the general procedure, resolutions of the Senate and House of Commons and of two thirds of the provinces representing at least fifty per cent of the population, the 7/50 rule. Section 41 the unanimity procedure for the listed matters, including the office of the Queen, the Governor General and the Lieutenant Governors, the right of a province to a number of Commons members not less than its senators, the use of English or French, the composition of the Supreme Court, and any amendment to Part V itself. Section 42 the matters within the general procedure. Section 43 amendments affecting one or more but not all provinces. Section 44 amendments by Parliament alone in relation to the executive government of Canada, the Senate and the House of Commons. Section 45 amendments by a provincial legislature in relation to the constitution of the province.

Sections 50 to 54 are the amendments Part V itself made to the Constitution Act 1867, including section 92A.

Sections 55 to 61. Section 55 provides for a French version of the constitutional instruments. Section 52 is the supremacy clause: the Constitution of Canada is the supreme law of Canada, and any law inconsistent with it is, to the extent of the inconsistency, of no force or effect; section 52(2) defines what the Constitution of Canada includes. Section 58 fixes the commencement. Section 60 gives the short title. Section 61, added by the Constitution Amendment Proclamation, 1983, provides that a reference to the Constitution Acts, 1867 to 1982 shall be deemed to include a reference to that Proclamation.

That last section is worth a line, because it is easy to miss and because it is the reason this book says the Constitution Act 1982 has sixty one sections and not sixty.

A worked example

Four questions, and where Canada answers each.

Who legislates on a matter in neither list? The Federation. The opening words of section 91 of the Constitution Act 1867 give the residue to Parliament, which is the reverse of the American and Australian arrangement and the same as India's.

May a legislature enact a law notwithstanding a Charter right? Yes, for the listed sections and for five years at a time, under section 33.

What is the supremacy clause? Section 52(1) of the Constitution Act 1982: the Constitution of Canada is the supreme law of Canada, and any law inconsistent with it is, to the extent of the inconsistency, of no force or effect.

How is the Constitution amended? Part V of the Constitution Act 1982, with a general procedure and several special ones, including unanimity for the matters in section 41.

Canada is on this paper because it does two things no other system here does: it gives the residue to the centre and then lets a legislature override a right in terms.

The cases

Facts. R v. Oakes, [1986] 1 SCR 103, decided on 28 February 1986, concerned section 8 of the Narcotic Control Act, which presumed that a person proved to be in possession of a narcotic possessed it for the purpose of trafficking. Oakes challenged the reverse onus under section 11(d) of the Charter.

Held, by Dickson CJ for the Court. The reverse onus infringed the presumption of innocence and was not saved by section 1. The objective must be of sufficient importance to warrant overriding a protected right, and the means must satisfy a form of proportionality test involving three components: the measures must be fair and not arbitrary, carefully designed to achieve the objective and rationally connected to it; they must impair the right as little as possible; and their effects must be proportionate to the objective.

Why it matters here. The Oakes test is the most widely copied limitation test in the common-law world and is the structured alternative to India's open-textured reasonableness under article 19.

Facts. Ford v. Quebec (Attorney General), [1988] 2 SCR 712, decided on 15 December 1988, concerned Quebec's Charter of the French Language, which required public signs to be in French only, and a standard omnibus override enacted under section 33 covering Quebec's statutes.

Held, unanimously. Answering whether the provisions were inconsistent with section 33(1) and therefore inoperative under section 52(1), the Court answered no, except so far as one section operated retrospectively; a standard, omnibus declaration is formally valid, because section 33 requires only an express declaration that the Act shall operate notwithstanding the named provisions. The French-only requirement nevertheless failed on the freedom-of-expression ground the override did not cover.

Why it matters here. It is the only decision on this syllabus about a legislature lawfully setting aside a bill of rights.

Distinctions

What beginners get wrong

"Canada has one constitution document." It has at least two principal Acts and, by section 52(2), a defined list of instruments.

"Section 91 is a list of federal powers." Section 91 confers the general power to make laws for the peace, order and good government of Canada in relation to matters not assigned exclusively to the provinces, and then enumerates classes for greater certainty. The general power is the operative grant.

"Section 33 lets a legislature ignore the whole Charter." It reaches sections 2 and 7 to 15 only. The democratic rights in sections 3 to 5, mobility in section 6, and the language rights in sections 16 to 23 cannot be overridden.

Limits and criticism

The 1867 Act is a colonial statute in form, and much of it, such as sections 134 to 144, is transitional and spent, which makes the text hard to read.

The amending procedures are very rigid. Section 41 requires unanimity for the listed matters, and Reference re Senate Reform, 2014 SCC 32, decided on 25 April 2014, held abolition of the Senate to be among them.

Section 33 is contested. Whether there are limits on its use is currently before the Supreme Court of Canada in the challenge to Quebec's secularism legislation.

Quick revision

1. Constitution Act 1867: 147 sections; preamble with a constitution similar in principle to that of the United Kingdom.
2. Sections 9 to 16 executive; 17 to 57 legislature, section 24 appointed Senate, section 55 assent; 58 to 90 provinces.
3. Sections 91 to 95 division of powers; 96 to 101 judicature; 102 to 126 finance and section 121 internal free trade; 127 to 144 miscellaneous including section 133 languages; 145 to 147 railway and admission.
4. Constitution Act 1982: 61 sections; section 61 added by the Constitution Amendment Proclamation, 1983.
5. Charter: section 1 limitation, sections 2 to 15 rights, sections 24 to 31 enforcement and general, sections 32 to 34 application and the override.
6. Section 35 aboriginal rights; section 36 equalisation; Part V sections 38 to 49 amendment; section 52 supremacy.
7. R v. Oakes, [1986] 1 SCR 103, on section 1; Ford v. Quebec, [1988] 2 SCR 712, on section 33.

Test yourself

1. What is the Constitution of Canada, and where is it defined? Section 52(2) of the Constitution Act 1982 defines it as including the Canada Act 1982, the Acts and orders referred to in the schedule to that Act, and any amendment to any of them. The two principal instruments are the Constitution Act 1867, with 147 sections, and the Constitution Act 1982, with 61.

2. State the Oakes test. The objective must be of sufficient importance to warrant overriding a constitutionally protected right, and the means must satisfy a proportionality test with three components: the measures must be fair and not arbitrary, carefully designed to achieve the objective and rationally connected to it; they must impair the right as little as possible; and their effects must be proportionate to the objective.

3. What is the notwithstanding clause and what does it not reach? Section 33 of the Constitution Act 1982 permits Parliament or a provincial legislature expressly to declare in an Act that it shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of the Charter, the declaration operating for five years and being renewable. It does not reach the democratic rights in sections 3 to 5, mobility rights in section 6, or the language and minority language education rights in sections 16 to 23.

4. Why does this book say the Constitution Act 1982 has sixty one sections? Because section 61, providing that a reference to the Constitution Acts, 1867 to 1982 shall be deemed to include a reference to the Constitution Amendment Proclamation, 1983, was added by that Proclamation. A count of sixty stops at the short title in section 60 and misses it.