Highlights of the Canadian Constitution

Canada's constitution is the basic set of rules for running the country.

Following are what I consider to be the most important parts of the Constitution Act, 1867 and the Constitution Act, 1982.  (I have tried to paraphrase each section in plain English.)


Part II:  Canada is composed of four provinces:  Ontario, Quebec, Nova Scotia & New Brunswick.  (Later statutes and orders expanded the country.)

Part III:  Executive power resides in the Queen.  (modified by constitutional convention)

Part IV:  Parliament consists of the Queen, the Senate, and the House of Commons.
Senate:  24 Senators from each of Ont, Que, Maritimes & West; + 6 from Nfld and 1 for each Territory (105), appointed by Gov Gen (on advice of PM)

House of Commons:  According to S. 51, the provinces shall be assigned a number of seats in the House of Commons roughly proportionate to their

S. 51A:  “Senate floor rule” (no province can have fewer MPs than Senators)

 Ss. 56, 57 & 90:  reservation and disallowance

Part V:  Provincial constitutions (bare bones)

Part VI:  Distribution of Legislative Powers (Division of Powers)

91.  the "preamble" to S.91 is the "POGG" clause (peace, order and good government):  It shall be lawful for [Parliament] to make laws for the peace, order and good government of Canada, in relation to all matters NOT coming within the subject-matters assigned exclusively to the Provinces in
S. 92.  For greater certainty, Parliament may make laws with regard to matters covered by the following list.  However, this list merely provides examples, and these examples are not to be interpreted by courts as limiting Parliament's power.

 2Trade and Commerce
2AUnemployment insurance (added in 1940)
3.    Unlimited taxing powers (direct and indirect)
5.    Postal service
14.   Currency & coinage
15.   Banking
19.   Interest
22 & 23 Patents & Copyrights
24Indians, and lands reserved for Indians
26.  Marriage and Divorce
27.  The Criminal Law

92.  The provincial legislatures have exclusive power to make laws regarding the following:

 2.  Direct taxation
 7.  Hospitals and social welfare institutions
 8.  Municipalities
10.  Local works and undertakings EXCEPT
     a)  interprovincial railways & telegraphs
     b)  international shipping
     c)  any works that Parliament has declared are
         within federal jurisdiction.  (“declaratory power”)
12.  Solemnization of marriage
13.  Property and civil rights (meaning private law)
14.  The administration of justice in the province, including
     the establishment of all courts except the Supreme
     Court of Canada and the Federal Court, and prosecution of criminal cases.
16.  All matters of a merely local or private nature.

92A (added in 1982).  The provinces can regulate non-renewable natural resources, including forestry and electrical energy, and can even regulate exports.  However, the federal government can also regulate exports in this area, and federal laws are paramount.

93.  The provinces control education, except that the feds can intervene to protect Roman Catholic schools in Ontario and separate schools in any province that existed at the time the province entered Confederation.

94A.  Parliament and the provinces can both make laws regarding old age pensions; if there is a conflict, provincial laws are paramount.  (added in 1964)

95.  Agriculture and Immigration are concurrent powers (both the feds and the provinces can legislate).  If there is a conflict, the federal legislation is paramount.

96.  The federal cabinet has the power to appoint all superior court judges in the provinces.

97 & 98:  Judges of the superior courts will be selected from the bars of their respective provinces (eg. judges for Ontario will be selected from the Ontario bar).

99.  Superior court judges cannot be removed except by joint address of the Senate and House of Commons.  Superior court judges hold office "during good behaviour" to the retirement age of 75 (to protect judicial independence).

100.  The salaries of superior court judges are set by Parliament, not by the cabinet (to protect judicial independence).

101. Parliament may establish a Supreme Court of Canada (which it did in 1875) and other courts to adjudicate federal laws other than the Criminal Code (eg. the
Federal Court, which hears federal administrative law cases, and the Tax Court.)

109.  The provinces own the natural resources within them.

121. There shall be no customs duties or restrictions of trade between provinces.

132. Parliament can make any law to implement British Empire treaties, even if the law invades provincial jurisdiction.  However, after 1931 the courts interpreted this section to mean that provincial approal is required for any non-British Empire treaty which affects matters under provincial control.

133. English and French can be used in Parliament, and Canada's laws must be in both languages.  Likewise, English or French may be used in Quebec's National
Assembly, and Quebec's laws must be in both languages.  Either language may be used in the courts of Quebec, the Supreme Court of Canada, the Federal Court and
the Tax Court.


Sections 1-34 comprise the Canadian Charter of Rights and Freedoms.

1.  the "limitation" clause:  This Charter guarantees the rights set out in it subject only to such reasonable limits, prescribed by law, as can be demonstrably justified in a
free and democratic society.  This means that any limits to rights must be clearly written down in legislation, and must represent a legislative objective which

1.  is of substantial importance,
2.  a)  is rationally connected to the means
    used to achieve the objective,
    b)  employs means which limit rights as
    little as necessary to achieve the objective, &
    c)  provides greater benefits to society than
    the harm done in limiting rights.

2.  Fundamental freedoms:
    a)  conscience and religion
    b)  expression
    c)  peaceful assembly (eg. demonstrations)
    d)  association (eg. to join a union)


3.  Every citizen has the right to vote and run for office federally and provincially.

4.  There shall be federal and provincial elections at least every five years.  However, during a war, invasion or insurrection, elections can be postponed with a 2/3 vote.

5.  Parliament and the legislatures must meet at least once a year.

6.  Mobility rights:  Every citizen can freely leave or enter Canada.  Citizens and permanent residents have the right to move to other provinces and work, subject to
provincial regulation and subject to affirmative action programs for citizens of provinces with higher than average unemployment.


7.  Everyone has the right to life, liberty and security of the person.  However, these rights can be taken away in accord with the principles of fundamental justice (eg. a
fair hearing, an impartial judge).

8.  Unreasonable search and seizure is forbidden.

9.  Arbitrary (illegal) detention or imprisonment is forbidden.

10. Everyone who is arrested or detained has the right:

a)  to be told why immediately
b)  to contact a lawyer and be told of this right
c)  habeas corpus (to be freed if illegally detained)

11.  Persons chared with offences have the right

a)  to be informed reasonably quickly of the charge
b)  to a trial within a reasonable time
c)  not to be a witness against oneself
d)  to be presumed innocent until proven guilty before
    an independent and impartial judge
e)  to bail unless unreasonable
f)  to trial by jury if liable to 5 yrs in jail

12. No one can be subjected to cruel or unusual treatment or punishment.

13. Evidence given by a witness in court can't be used against that witness later on.

14. Everyone has a right to an interpreter.


15. (1)  Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethinic origin, colour, religion, sex, age or mental or physical disability.

    (2)  Affirmative action programs are permitted.


16. English and French are Canada's two official languages, and also New Brunswick's.

17. English or French can be used in Parliament and New Brunswick's legislature.

18. Parliament's laws and New Brunswick's laws shall be in English and French.

19. English or French may be used in the Supreme Court of Canada, the Federal Court, the Tax Court and the New Brunswick courts.

20. Any Canadian has the right to receive services in either English or French from the head of any federal government central office, or from anyone in a federal
government office in an area where there is a "significant demand" (decided by the courts) for service in either English or French.  In New Brunswick, all government
offices must provide services in French and English.


23. Citizens of Canada have a right to have their children educated in the language of their choice -- English or French -- as long as they themselves were educated in
that language in Canada.  The provincial government must pay for that education up to the end of high school in any area of the province where there is a sufficient
demand for minority lanaguage schools (to be decided by courts).

24. (1)  Courts can be as creative as they wish in declaring remedies for persons whose rights have been infringed or denied.

    (2)  Evidence collected by the police in a way that infringes or denies rights can be excluded in a court proceeding if to admit it would, in a judge's opinion, "bring the
administration of justice into disrepute."

27. Judges shall interpret the Charter consistent with "the multicultural heritage of Canadians."

28. Charter rights are guaranteed equally to male and female persons notwithstanding anything in the Charter.

29. Denominational, separate or dissentient schools can continue to exist even though they grant special privileges, thus limiting "equality."

32. The application clause:  The Charter applies to all statutes and orders made by Parliament and provincial governments, but it probably does not apply to the private
sphere or to courts when they are adjudicating private law disputes under common law.

33. The "notwithstanding" clause:  When passing a law, Parliament or a privincial legislature can declare that for five years, the law shall operate notwithstanding
Sections 2 and 7-15 of the Charter.  These 5-year declarations can be renewed.  This provision allows a legislature to take issue with judicial interpretation of the


35. Existing aboriginal treaty rights and land claims agreements are recognized and affirmed (so that they can't be further eroded) and guaranteed equally to males and

35.1 In future, the Canadian constitution (in the narrow sense) will not be amended in a way that affects the aboriginal people unless the Prime Minister has first called a
constitutional conference to which representatives of aboriginal peoples are invited.  However, it is not necessary for aboriginal people to agree to such changes.

36. Parliament and provincial legislatures are committed to the idea of equalization payments so that the poorest provinces can provide basic provincial services.


38-40 & 42.  The 7-50 formula.  Most of the narrow constitution, including the Charter of Rights and the division of powers in ss. 91 and 92 of the C.A., 1967, can be
amended with the agreement of seven provinces representing 50% of Canada's population and Parliament.  (That is, either Ontario or Quebec must be included.)  Up to
3 provinces could opt out of such an amendment.  If they opt out of an amendment which transfers educational or cultural matters to Ottawa, these provinces shall be
compensated financially by Ottawa (Ottawa must give to the opting-out provinces what they are spending, per capita, on the opting-in provinces).  There is a 3-year time
limit which begins with the first resolution for amendment (which could be in any provincial legislature or Parliament).  No amendment may take effect according to this procedure until at least one year after the first resolution has passed (unless all governments have passed resolutions).

No province can opt out of an amendment affecting:

a)  proportionate representation of the provinces in
    the House of Commons
b & c)  the Senate
d)  the Supreme Court of Canada
e)  the extension of existing provinces north
f)  establishment of new provinces

41.  The unanimity formula.  Unanimous agreement of all provincial legislatures and Parliament is required for amendments affecting:

a)  the Queen, Governor General and Lieutenant-Governors
b)  the "Senate floor rule" (no province can have fewer MPs than Senators).
c)  the use of English or French in S. 133 or the Charter
d)  the composition of the Supreme Court, and
e)  changes to the amending formulas.

43.  The "some but not all" forumla:  Amendments which affect some but not all provinces need by approved only by the provincial legislatures affected and Parliament.

44.  Parliament may amend parts of the constitution that affect only Parliament.

45.  Legislatures may amend parts of their constitutions that affect only them.