Canadian Constitution

History of the Canadian Constitution

Denise Brennan — Thu, 01 Mar 2007 00:00:00 -0700

The Canadian Constitution is the backbone of Canada’s political and legal systems. An amalgamation of codified acts, unwritten traditions and conventions, the Constitution outlines both the structure of government and the civil rights of its citizens. The Constitution of Canada is defined in section 52(2) of the Constitution Act, 1982 (including the Charter of Rights and Freedoms), as consisting of the Canada Act 1982, all acts and orders referred to in the schedule (including the Constitution Act, 1867), and any amendments to these documents. Additionally, according to the Supreme Court of Canada, the Constitution includes all British legislation that predates or modifies the British North America Act, as well as any unwritten conventions.

This explainer will provide an historical overview of the foundations of the Canadian Constitution and outline its development from the British North America Act, 1867 to the Constitution Act, 1982.

Pre-Confederation Constitutional Development

An historical overview of the origins of the Canadian Constitution

Confederation and Early Constitutional Change

An historical overview of Confederation and the British North America Acts

Patriation and Constitutional Change in the 1980s

An examination of the patriation of the Canadian Constitution

Recent Constitutional Changes

An overview of recent amendments to the Canadian Constitution

Source & Links for Further Information

A list of Internet links for further information on the Canadian Constitution

Pre-Confederation Constitutional Development

An historical overview of the origins of the Canadian Constitution

By the end of the seventeenth century Britain possessed colonies along the Atlantic seaboard as well as the lands draining into the Hudson Bay, named Rupert’s Land (in honour of Prince Rupert, the nephew of King Charles I of England); this vast territory located in Northern and Western Canada, was granted to the Hudson Bay Company in 1670. France controlled New France (the territory between these two British colonies, from the Atlantic Ocean, west of the Mississippi River, and south to the Gulf of Mexico), some territory west of the Mississippi, Isle St. Jean (renamed Prince Edward Island in 1799), and Cape Breton Island (which became part of the colony of Nova Scotia in 1763).

The Royal Proclamation, 1763

With the signing of the Treaty of Paris, many conquered territories were restored to their pre-war owners. Britain made some substantial overseas gains at the expense of France, with France giving up its claim to New France and all its claims to the territory east of the Mississippi River. The Royal Proclamation, 1763, issued by King George III following the Treaty of Paris, was the first constitution granted to the territory of Quebec by the British Government. The Proclamation, issued on October 7, 1763, created the colony of Quebec (formerly part of New France) and substituted civil authority for military authority.
The constitution defined the new territory of the colony and named it the Province of Quebec.
What followed was a period of friction and adjustment – for French Canadian residents, the authorities, and for British merchants. Quebec, under the authority of the British, was now governed as a Crown colony. There was no representative Assembly. The Governor was the source of authority. French civil and criminal laws were abolished and the Test Oath (an oath requiring all office holders to formally accept articles of the Protestant faith) meant that no French Canadians were legally able to fill positions of authority or participate in the government.

Mounting Tensions

The Royal Proclamation fuelled tensions between the French settlers and English merchants. In view of growing uneasiness in the Thirteen Colonies (the colonies that formed the United States of America following the American Revolution), representatives of the British government in Quebec believed their essential task was to ensure the loyalty of Quebec’s natural leaders – the clergy and seigneurs (the seigneurs were similar to lords or landlords, and were typically military leaders or aristocrats prior to being settlers). Their task was to subdivide large parcels of land into 5 x 15 kilometre concessions, which they would then rent to farmers and labourers). Ultimately, efforts were made to draft a constitution for the province. The Quebec Act, 1774 emerged from this effort.

The Quebec Act, 1774

The British determined that the Royal Proclamation, 1763 was inapplicable to the circumstances of the colony, and in particular, to its Catholic population. Further, it became clear the anticipated large influx of British settlers was unlikely to occur, and that Quebec’s population would, for the foreseeable future, remain both French and Roman Catholic. The Quebec Act was passed in an effort to curb French discontent toward the British and ensure citizen loyalty, or at least neutrality, in the event of hostility between England and the Thirteen Colonies.

Territorial Expansion

Under the Quebec Act, the boundaries of the colony were extended north to the boundary of the Hudson’s Bay Company land, and east to include Labrador and the Gulf Islands (Anticosti and Magdalen). The appointment of Catholics to the Executive Council, a body appointed locally by the Governor and responsible to the Crown, was made possible by swearing an oath of allegiance to His Majesty King George III. While Roman Catholics were permitted to practice their religion, provisions were made to foster the Protestant faith.

British merchants in Quebec were pleased with the boundary extensions and their implications for the fur trade, but felt betrayed by the lack of implementation of British institutions, and especially, representative government and British civil law. The French clergy and seigneurs were beneficiaries of the authoritarian system, which the Quebec Act perpetuated. They were also very supportive of the provisions for the collection of the tithe (a tenth part of one's annual income contributed voluntarily or due as a tax, especially for the support of the clergy or church) and feudal dues to the Church.

The rejection of responsible government was unpopular among French Canadians but the Act’ssupport of French civil law was valued by the settlers. Outside of Quebec, the Thirteen colonies (Massachusetts, Connecticut, Rhode Island, New Hampshire, New York, New Jersey, Pennsylvania, Delaware, Virginia, Maryland, North Carolina, South Carolina, and Georgia) were threatened by the protection afforded the Catholic Church under the Act (which they viewed as destructive and dangerous), as well as continued British support for French civil law.

The American Revolution

On July 4, 1776 the American Revolutionary War began in the United States. The result, in terms of constitutional development for what is known as Canada today, was an influx of United Empire Loyalists (British Loyalists who had resettled in British North America as an act of fealty to King George III) to Nova Scotia and Quebec. In Quebec, the Loyalists were concentrated west of the Ottawa River and the new immigrants demanded British institutions. The Loyalists brought with them expectations for representative government, fuelling demands made earlier by British merchants in Quebec. In order to appease them, a new Constitution was passed.

The Constitutional Act, 1791

The British Parliament passed the Constitutional Act, 1791 on June 10, 1790 (effective December 26, 1791) as a reaction to growing problems in the colony. With the Constitutional Act, the British aimed to reduce expenses by giving colonial assemblies the power of taxation. Further, they sought to strengthen ties between the colonies and Britain.

Upper and Lower Canada

Since the Loyalists had settled predominantly west of the Ottawa River (in what is now Ontario) the British decided to divide the colony into Upper Canada (in the West) and Lower Canada (in the East). They believed this could satisfy the demands of both the Loyalists and the French Canadians. The Constitutional Act was intended to persuade French Canadians of the superiority of British institutions and assimilate them into British culture. The Act had the opposite effect.

With mounting tensions in both Upper and Lower Canada, the Constitutional Act reinforced a structure of government that assured the continued domination by the leaders of society – wealthy merchants, the Church of England, and the British-appointed members of government. This structure gave local decision-makers a formal arena to discuss how they would like to govern (the Assembly), but denied them the power to ensure the implementation of their objectives. The Assemblies of both provinces controlled taxation but the governors (direct representatives of the King) had access to Crown revenues and a military budget that allowed them to spend without consulting the Assemblies (and consequently the electorate) and govern with impunity. The result: growing hostilities between the Assemblies, colonial officials, governors, and the colonialists.

Toward Responsible Government

In both Upper and Lower Canada relations between the Legislative Assemblies (elected by the people) and the Executive Council (appointed locally by the governor and responsible to the Crown) grew ever more hostile. While the Assemblies had the power to pass legislation, their decisions could be overturned by the Executive Council. Throughout this period, Britain continued to increase immigration to Lower Canada in an attempt to assimilate French Canadians, further fuelling tensions. The calls for responsible government (a government responsible to the elected representatives of the people) and an elected Legislative Council grew, culminating in a series of rebellions in both Upper and Lower Canada between 1837 and 1838. The British, however, were determined not to give into the demands for responsible government and lose their influence. In response to violent civil disorder in the colonies, the British government dispatched Lord Durham, as Governor General and High Commissioner, to investigate the situation and make recommendations. He drafted The Durham Report, which called for responsible government (English dominated); a union of Upper and Lower Canada; limited colonial control of internal affairs; and the assimilation of the French-speaking population.

The Durham Report and the Union Act, 1840

In 1840, on Durham’s advice, the British government unified the two provinces with the Union Act, 1840. The Union Act succeeded in uniting the provinces but failed in its objective to weaken the French Canadian population. The Union Act had not provided for responsible government, but this was achieved under Canada’s unwritten Constitution – the traditions, customs, practices, and legislation that complement the written constitution. The British, due in part to the civil unrest in the colony, and in part to domestic changes in government (and foreign policy), no longer had an interest in exercising any more influence in the colonies than was necessary to prevent civil unrest. The result: the beginnings of responsible government in the colony.

Confederation and Early Constitutional Change

An historical overview of Confederation and the British North America Acts

With the passing of the British North America Act, 1867 (also known as the Constitution Act), Canada became a self-governing Dominion of the British Commonwealth – a federation of provinces: Ontario, Quebec, Nova Scotia, and New Brunswick, with a Parliamentary system modeled on that of Britain. The territory of Rupert’s Land (named in honour of Prince Rupert, and located in northern and western Canada, was granted to the Hudson Bay Company in 1670), was acquired in 1870, and six additional provinces were added to the original four: Manitoba (in 1870), British Columbia (in 1871), Prince Edward Island (in 1873), Alberta and Saskatchewan (in1905), and Newfoundland (in 1949).

A Confederation

Confederation was an innovation to cope with the major constitutional and economic problems of the day. With the building of the railways, the adoption of free trade by the British (meaning that Canada no longer enjoyed preferential access to Commonwealth markets for its goods), and the potential loss of lands to the Americans, the Canadian colonies sought a broader political union to facilitate their development and protect their shared interests. Also, the deterioration of Canada-US relations coupled with the proximity of British North America to the United States placed the colonies in jeopardy; they often bore the brunt of American antagonisms toward the British. At the same time, Britain had reduced its commitment to Imperial defence, based on its reduced involvement in colonial economic affairs. Further, the legislative union of the two Canadas (Upper and Lower) had not created a stable political system.

It became readily apparent the situation was leading toward political crisis.

Leaders from the Ontario, Quebec, and the Atlantic provinces met to examine the possibility of creating a new federal union and to discuss possible terms. One of the most important provisions that emerged from the British North America Act, 1867 was for a division of powers between the federal Parliament and the provinces. The federal union that emerged from these discussions was highly centralized, in part, because the federal government had assumed some of the powers previously exercised by Britain. The Act also incorporated some of the provisions of the Quebec Act respecting Quebec’s distinctiveness, including the official status of the French language in Quebec.

Similar to the legislation that had preceded it, the British North America Act, 1867 was controversial. The French-speaking population was divided on joining the federation; the issue of the demarcation of powers between the federal and provincial governments was far from settled. During this period, Canada continued to grow and mature as a federation, with redefined boundaries and land made available for further settlement in the West.

The major contributions of the British North America Act, 1867 to Canada’s constitutional development were federalism (a form of government embodying the principle of territorial representation, with regional governments possessing the exclusive right to pass laws on particular subjects). Under the federal system Canada gained two distinct levels of political authority: a central Canadian Parliament and 10 provincial legislative assemblies, in addition to a system of parliamentary government that included a House of Commons, Senate, justice system, and taxation system. Other important elements of the British North America Act included:

The power of the Governor General in Council to disallow any provincial law within a year of receiving a copy of the legislation.
The stipulation that Parliament could assume any powers not specifically allocated, and had the power to act for ‘peace, order and good government.’

Following passage of the British North America Act, 1867, the Act was modified as issues arose:

British North America Act, 1886

Parliament gains the authority to allow the Territories of Canada to have representation in the Canadian Senate and Canadian House of Commons.

British North America Act, 1907

The Act regulates transfer payments by the federal government to smaller provinces in order to assist them in supporting their governments.

British North America Act, 1915

The Canadian Senate is expanded to ensure Ontario, Quebec, the Western and Maritime provinces enjoy equal representation in the Upper Chamber (with 24 Senators each). Newfoundland would have six Senators should it join Confederation (which it did in 1949).

British North America Act, 1916

Due to World War I, the 12th Parliament is extended beyond the maximum five years (until October 1917).

British North America Act, 1930

British Columbia, Alberta, Manitoba, and Saskatchewan gains rights over certain natural resources found in federally controlled Crown lands.

British North America Act, 1940

The federal government gains jurisdiction over Unemployment Insurance allowing the creation of a program at the national level.

British North America Act, 1943

The redistribution of seats in the Canadian House of Commons is delayed until the end of World War II.

British North America Act, 1946

The act adjusts the formula for distributing seats in the House of Commons among the provinces and territories.

British North America Act, 1949

The Canadian Constitution is amended to allow for the entry of Newfoundland as the tenth province. In 1982, with the patriation of the Canadian Constitution, this Act was renamed the Newfoundland Act.

British North America (No. 2) Act, 1949

An Act of the Parliament of the United Kingdom grants Canada limited powers to amend its own constitution. This Act is repealed with the full patriation of Canada’s Constitution, including an amending formula, in 1982.

British North America Act, 1951

Parliament had instituted Old Age Pension in 1927 which was administered and jointly funded by the provinces. This Act is an amendment to allow the federal government to administer and operate its own pension plan and pass the Old Age Security Act.

British North America Act, 1952

The Act adjusts the number of seats in the House of Commons and limits the number of seats any one province could lose due to redistribution (based on census data) to 15 percent of its previous number. With this legislation, the Yukon Territory gains its first Member of Parliament.

British North America Act, 1960

A mandatory retirement age of 75 is instituted for all superior court judges.

British North America Act, 1964

The Act expands the federal government's jurisdiction over pensions to include survivor benefits and disability benefits. (Provincial legislation in this arena was still allowed to be viable.) This Act makes the Canada Pension Plan possible.

British North America Act, 1965

The Liberal government of Lester B. Pearson introduces this Act instituting a mandatory retirement age of 75 for all appointees to the Canadian Senate.

British North America Act, 1974

This Act changes the rules for the redistribution of seats in the House of Commons, guranteeing Quebec 75 seats. The legislation further stipulates that the seat allocation for other provinces is to be based on population size relative to Quebec.

British North America Act, 1975

The number of MPs representing the Northwest Territories increases by two.

British North America Act (No. 2), 1975

The number of Senate seats increases from 102 to 104 with one seat allocated for the Yukon and one for the Northwest Territories

The Statute of Westminster, 1931

The Statute of Westminster, 1931 affected all Dominions of the British Empire, including Australia, Canada, New Zealand, Newfoundland, and South Africa. It made the following provisions: the British Parliament could no longer nullify laws in the Dominions; Dominions could make their own extra-territorial laws; and British law no longer applied to the Dominions.

Over the next 50 years, the balance of power between the provinces and the federal government changed very little. The Great Depression had demonstrated that the provinces could not cope with major economic and social crises without federal support – particularly as Canadians called for unemployment insurance and other measures to protect them from economic extremes. During the Depression the federal government had too few resources to respond to this need, but following WWII, thanks to a prosperous economy, such measures became possible.

The legislation that followed the British North America Act, 1867 addressed, in large part, federal and provincial responsibilities concerning employment insurance (the British North America Act, 1940, gave Parliament the power to make laws on unemployment insurance) and old-age pensions (the British North America Act, 1951, gave Parliament power over old-age pensions), in addition to fortifying Canada’s political system (amendments were also made to the House of Commons and to the Senate).

Patriation and Constitutional Change in the 1980s

An examination of the patriation of the Canadian Constitution

In 1968, a process began to renew the constitution and bring it into Canada's hands. Former Prime Minister Pierre Elliot Trudeau and the provincial premiers agreed, for the first time in Canadian history, to a broad constitutional renewal process that included patriation; an amending formula; changes to national institutions and the distribution of powers; and, an entrenchment of rights in the Constitution.

In 1971, at the Victoria Conference (a conference held in Victoria, B.C., on constitutional reform) an agreement was reached on reforming Canada’s constitution, but it eventually failed, due to objections from Quebec and Alberta. Efforts were again made in 1975 and 1976, but they too met with little success. The federal government's failure to achieve a renewed federalism, which many in Quebec wanted, contributed to the rise to power of the separatist Parti Québécois (PQ). A referendum on “sovereignty-association" was called by the PQ government in 1980.

The Quebec Referendum, 1980

Over the next 10 years, efforts failed to reach an agreement on the form that patriation would take. In 1976, the Parti Québécois (PQ) (a Quebec nationalist party, formed in 1968 from the Mouvement Souveraineté-Association (MSA) and the Rassemblement pour l'indépendance nationale (RIN)) was elected to govern Quebec on a platform that called for the distancing of Quebec from the rest of Canada. In 1980, the PQ government, led by the charismatic René Lévesque (who had founded the party in 1968) held a referendum seeking a mandate to negotiate such an arrangement, slated for May 20, 1980. Trudeau promised Quebecers who voted “No” in the referendum that he would personally take action to renew the Constitution. A majority (59.5 percent) in Quebec voted against the referendum; efforts to patriate the Constitution were subsequently revitalized.

Patriation

Following the 1980 referendum, the Trudeau Liberal government held a series of meetings with the provinces to discuss changes to the Constitution. The Trudeau government advocated patriating the Constitution (a constitutional procedure that would permit Canada to amend its Constitution without reference to the British Parliament) with a made-in-Canada amending formula; a statement of principles; a charter of rights; a constitutional commitment to reduce regional economical disparities (sometimes referred to as equalization); and, a strengthening of federal powers over the national economy. First Ministers’ Conference, scheduled for September 1980, was to be the forum for these discussions.

First Ministers’ Conference, 1980

At the First Ministers’ Conference, that was subsequently held, the First Ministers (provincial Premiers and the Prime Minister) failed to reach a unanimous agreement. The federal government claimed additional economic powers and the provinces presented widely different visions of Canada. Negotiations, however, failed. On October 2, 1980 the Trudeau government announced its intention to push ahead, unilaterally, in patriating the Constitution – without the agreement of the provinces – in a Joint Address (this process is used to make a formal and binding request of the Canadian monarch) to the Queen in the House of Commons. Eight of the provinces immediately objected to this action, citing it as unconstitutional.

The matter was subsequently taken to the Supreme Court. On September 28, 1981, the Court deemed unilateral patriation of the Constitution to be legal. Although not required by law, in the view of the Court Justices, significant provincial consent was required by constitutional convention (these are rules and practices regarding the operation of government, which have been developed incrementally over long periods of time and never formally codified in a written document) before the federal-provincial relationship could be altered.

The Night of the Long Knives

The First Ministers met again on November 2, 1981. Eight of the provinces (termed the ‘Gang of Eight’) presented a unified front in their refusal to support Prime Minister Trudeau in patriating the Constitution unless the Charter was removed and the amending formula changed, to allow the provinces to opt out of constitutional amendments (with full compensation). Quebec, too, was part of this contingent, agreeing to forgo its demands for an absolute veto over any constitutional amendments.
The unity of the ‘Gang of Eight’ shattered, however, when Trudeau struck a deal with former Quebec Premier René Lévesque; he promised Lévesque that he would hold separate nation-wide referendums on amending the Constitution, and on including the Charter. The other seven provinces felt betrayed by Quebec and decided to negotiate with the Trudeau government, ultimately brokering a deal in the kitchen of the Ottawa’s National Conference Center. Jean Chrétien (former Minister of Justice and Attorney General), Roy Romanow and Roy McMurtry (the attorneys general of Saskatchewan and Ontario, respectively) were all present. That evening it was decided (without Lévesque’s knowledge) that the provinces would accept Trudeau’s constitutional agreement if the Charter included a notwithstanding clause, and the provinces were able to opt out of constitutional amendments without receiving any financial compensation.

The inclusion of the Charter was subsequently regarded by Lévesque as a betrayal, as well as many Quebecers who viewed the Charter as a threat to its distinct status. Consequently, Quebecers often refer to the events of that evening as the “night of the long knives.”

Ultimately, (with the exception of Quebec), the provinces all agreed to a package of constitutional reforms – a package which included the patriation of the Constitution with an amending formula and a charter of rights; a commitment to equalization; the strengthening of provincial controls over natural resources, and the recognition and affirmation of the existing rights of Canada’s Aboriginal Peoples.

The Charter of Rights and Freedoms

Prime Minister Trudeau was adamant about the inclusion of the Canadian Charter of Rights and Freedoms in the patriation process. This Charter was intended to replace the Canadian Bill of Rights (a federal statute rather than a constitutional document), which was limited in scope and easily amendable. The Charter granted new power to the courts to protect certain political and civil rights of Canadians with respect to the policies and actions of all levels of government. The rights and freedoms to be enshrined in the Charter included: fundamental freedoms; democratic rights; mobility rights; legal rights; equality rights; language rights; and minority language education rights. The Charter also greatly expanded the scope of judicial review, with respect to the guarantee of rights and the role of judges in enforcing them.

In exchange for the inclusion of the Charterunder the Constitution Act, the provinces gained both the right to override certain portions of the Charter (all governments gained this right, but it was the provinces that had requested it) by means of the Notwithstanding Clause (Section 33) and the inclusion of an amending formula devised by the provinces. The Government of Quebec, headed by Parti Québécois Premier René Lévesque, continued to argue that Quebec’s grievances had been ignored – reflecting the view of many Quebecers, who felt the decision to patriate the Constitution had been reached without their consent. They also felt that Trudeau had reneged on his promise of a renewed federalism. Accordingly, the Lévesque government rejected the patriation package.

The Constitution Act was proclaimed law on April 17, 1982. Ruling on an appeal from Quebec, the Supreme Court ruled that Quebec had no veto in law or practice over patriation of the Constitution. Consequently, Quebec was legally bound by the Constitution Act. The National Assembly of Quebec subsequently rejected the terms for patriation and denounced the political legitimacy of the Constitution Act.

In June 1982, Quebec sought to protect itself from Charter obligations. The Parti Québécois controlled the Quebec legislature and enacted the Act Respecting the Constitution Act, 1982. This Act enabled the Quebec government to invoke the Charter’s notwithstanding clause for all past provincial laws, as well as for any law the government passed in the three years to follow (the practice stopped in 1985 with the election of the provincial Liberal Party (not affiliated with the federal Liberal Party of Canada).

Quebec’s failure to sign the Constitution Act, 1982 led to several additional attempts by the federal government to bring Quebec into Canada; both the Meech Lake (1987) and Charlottetown Accords (1992) failed to accomplish this objective.

Recent Constitutional Changes

An overview of recent amendments to the Canadian Constitution

Following the patriation of the Constitution in 1982, both comprehensive attempts to amend the Constitution failed (Meech Lake Accord, 1987 and Charlottetown Accord, 1992). However, there have been ten successful (minor) amendments made to the Constitution since that time.

Recent Amendments to the Constitution

Recent amendments to Canada’s Constitution have addressed issues ranging from the rights of Canada’s Aboriginal Peoples (1983), to those of denominational schools (Newfoundland, 1987) and to the establishment of a linguistically-based system of education (Quebec, 1997).

The following is a list of post-1982 Constitutional Amendments, most of which are limited in scope and deal with specific provinces:

Constitution Amendment Proclamation, 1983: mandated yearly Prime Ministerial meetings with Aboriginal leaders.
Constitution Act, 1985: permitted future changes to the distribution of seats for Parliament, to be accomplished by ordinary statute.
Constitution Amendment, 1987: extended education rights to the Pentecostal Church in Newfoundland (repealed by the 1998 Amendment—see below)
Constitution Amendment Proclamation, 1993: made English and French both official languages in New Brunswick.
Constitution Amendment Proclamation, 1993: allowed for a "fixed link" bridge to replace ferrying services to Prince Edward Island.
Constitutional Amendment Proclamation, 1997: allowed the Province of Newfoundland to create a secular school system to replace the church-based education system.
Constitution Amendment, 1997: permitted Quebec to replace the denominational school boards with boards organized on linguistic lines.
Constitution Amendment, 1998: allowed Newfoundland to abolish the denominational school system.
Constitution Act, 1999: provides for representation in both the House of Commons and the Senate for the Nunavut Territory.
Constitution Amendment, 2001: officially changed the name of "Province of Newfoundland" to "Province of Newfoundland and Labrador"

Recent Non-Constitutional Reform

In addition to formal constitutional amendments, non-constitutional reform has included the passing of a resolution by the House of Commons and the Senate recognizing Quebec as a distinct society within Canada. (This resolution was passed following a second referendum on sovereignty for Quebec, held on October 30, 1995. Quebecers voted against the notion of a sovereign Quebec, although only by the narrowest of margins with 50.6 percent of Quebecers voting "No" and 49.4 percent voting "Yes.") In particular, the resolution recognizes the distinct character of Quebec's unique culture, civil law tradition and French-speaking majority.

Additionally, Quebec gained a form of veto over constitutional change (which came into force on February 2, 1996) with the adoption of Bill C-110. This Bill requires the consent of Quebec, Ontario, British Columbia, the Prairies and the Atlantic region before the federal government can propose constitutional amendments to Parliament.

Later that same year (February 27, 1996), the federal government made a commitment to refrain from using its spending powers to create new shared-cost programs in areas of exclusive provincial jurisdiction, without the consent of the majority of the provinces (non-participating provinces would be compensated for any new federal programs that were designed, provided they established comparable programs).

The federal and provincial governments have also clarified their roles regarding certain sectors, such as mining, forestry, recreation, social housing, tourism and labour market training. Labour market agreements have been reached with nine provinces, including Quebec, and the two territories.

Sources & Links for Further Information

A list of Internet links for further information on the Canadian Constitution

Books Sources

Brooks, Stephen. 2004. "Canadian Democracy: An Introduction." Oxford University Press: New York, pp. 120-165.
Cairns, Alan C. 1988. "Constitution, government and society in Canada: selected essays." McClelland & Stewart Inc: Toronto, pp. 2-85.
Reesor, Bayard. 1992. "The Canadian constitution in historical perspective: with a clause-by-clause analysis of the Constitution Acts and the Canada Act." Prentice-Hall Canada: Scarborough, pp. 4-200.

Electronic Sources

“Constitution Act, 1867.” The Canadian Encyclopedia. 3 August 2006.
<http://www.thecanadianencyclopedia.com>
“Constitutional History.” Canada in the Making. 3 August 2006.
<http://www.canadiana.org/citm/themes/constitution/constitution14_e.html>
“Constitution of Canada.” Wikipedia. 3 August 2006.
<http://en.wikipedia.org/wiki/Constitution_of_Canada>
“Treaty of Paris.” Wikipedia. 3 August 2006.
<http://en.wikipedia.org/wiki/Treaty_of_Paris_(1783)>
“The Charter of Rights and Freedoms.” Wikipedia. 3 August 2006.
<http://en.wikipedia.org/wiki/Charter_of_rights_and _freedoms>
“The Constitutional File.” Government of Canada Privy Council. 3 August 2006.
<http://www.pco-bcp.gc.ca/aia/default.asp?Language=E&Page=consfile&Sub=TheHistoryofConstitution >
“The Constitutional File and the Unity File The History of Canada’s Constitutional Development.” Government of Canada Privy Council. 3 August 2006.
<http://www.pco-bcp.gc.ca/aia/default.asp?Language=E&Page=consfile&Sub=TheHistoryofConstitution>
“The Constitution of Canada: A Brief History of Amending Procedure Discussions.” Government of Canada. January 1992. 3 August 2006.
<http://dsp-psd.communication.gc.ca/Collection-R/LoPBdP/BP/bp283-e.htm>
“20 Years of the Constitution and the Charter.” CBC News. April 2002. 3 August 2006.
<http://www.cbc.ca/news/features/constitution/>

Mapleleafweb Links

“20 Years with the Charter.” Mapleleafweb. 19 April 2002. 3 August 2006. <http://www.mapleleafweb.com/features/constitution/charter/index.html>

Same-Sex Marriage in Canada

Jay Makarenko — Mon, 01 Jan 2007 00:00:00 -0700

In July 2005, Canada became the fourth country in the world, after the Netherlands, Belgium, and Spain, to legalize same-sex marriages nationwide. This new legal status for gays and lesbians has been a controversial issue in Canada, both in the public and in Parliament. This article provides a historical and legal overview of same-sex marriage in Canada. It outlines how gay and lesbian rights have evolved in Canada over time, important court cases that motivated the legalization of same-sex marriage, and key tenets of the federal legislation that officially recognized same-sex marriage.

Gay & Lesbian Rights: From Criminals to Equality

How has the legal status of homosexuals changed over the years?

The Charter, Equality & Same-Sex Marriage

Why does the traditional definition of marriage violate the Charter?

Civil Marriage Act: An Overview

How did the new federal law change the institution of marriage?

Links for Further Information

List of links for more information on this topic.

Credits: This article was initially written by Rhonda Lauret Parkinson. It has since been altered and updated by Jay Makarenko.

Gay & Lesbian Rights: From Criminals to Equality

How has the legal status of homosexuals changed over the years?

The legal status of homosexuals in Canada has evolved dramatically over the last 50 years. In the 1960s, men engaging in homosexual activities found themselves subject to criminal charges and imprisonment. In contrast, today’s gay and lesbian communities possess substantial legal benefits and protections.

The following provides a brief overview of the evolution of gay and lesbian rights.

Homosexuality and the Criminal Law

Prior to the 1970s, homosexuality was a criminal offence in Canada. Those accused of homosexual activities were charged as sex offenders and, if convicted, could be sentenced to long prison terms.

The case of Everett Klippert provides an excellent example of this. In 1965, Mr. Klippert was held and interrogated by police as part of an arson investigation. During his interrogation, Mr. Klippert admitted to having homosexual relations with several men during a two-year period. When doctors determined he was unlikely to stop engaging in these activities, Mr. Klippert was charged and convicted as a dangerous sexual offender and sentenced to an indefinite term of imprisonment. The Supreme Court of Canada dismissed Mr. Klippert’s appeal in 1967, upholding the government’s legal ability to imprison men convicted of homosexuality.

Mr. Klippert’s sentence triggered a public debate in Canada over homosexuality and whether gay men should be imprisoned for their sexual activities. In 1969, the federal Liberal government instituted sweeping reforms of Canada’s criminal law, which included decriminalizing homosexuality. In discussing the amendment, Pierre Trudeau, Justice Minister at the time, stressed the importance of individual freedom in the context of sexuality.

Trudeau stated: "It's bringing the laws of the land up to contemporary society I think. Take this thing on homosexuality. I think the view we take here is that there's no place for the state in the bedrooms of the nation. I think that what's done in private between adults doesn't concern the Criminal Code. When it becomes public this is a different matter, or when it relates to minors this is a different matter."

Mr. Klippert was later released from prison in 1971.

Gay & Lesbian Equality Rights

Following the decriminalization of homosexuality, focus shifted to issues of sexual orientation and equality. Beginning in the 1970s, several legislative reforms were instituted in an attempt to end discrimination against gay and lesbian persons. Some important examples include:

In 1977, Quebec became the first province in Canada to include “sexual orientation” in its human rights legislation. Today, all provinces and territories in Canada prohibit discrimination on the basis of sexual orientation.
In 1978, the federal government amended Canada’s Immigration Act, removing a ban on homosexuals as immigrants.
In 1982, the Canadian Charter of Rights and Freedoms was added to the Constitution. The Charter did not explicitly grant equality rights to gays and lesbians. However, in 1995 the Supreme Court of Canada ruled, in Egan v. Canada, that the Charter would be interpreted in a manner that prohibited discrimination on the basis of “sexual orientation.”
In 1992, the federal government lifted its ban on homosexuals in the military, allowing gays and lesbians to serve openly and live with their partners on military bases.
In 1999, the Supreme Court of Canada ruled that gay and lesbian couples should enjoy the same rights and benefits as common-law couples with regard to pensions, income taxes, and other such matters. The federal government recognized such rights in 2000.
In 2004, the federal government extended protection against hate propaganda to gays and lesbians, making it an offence to spread hatred against others based on their sexual orientation. Clergymen were excluded from the new offence.

Right to Same-Sex Marriage

By 2000, the legal status of gays and lesbians in Canada had changed significantly. Homosexuality had been decriminalized, and discrimination on the basis of sexual orientation had been prohibited in areas such as immigration, employment, military service, pensions, and income tax.

The next debate to arise focused on the institution of marriage and the question of whether same-sex couples should be given the right to marry. Organizations such as Equality for Gays and Lesbians (EGALE) argued that any legal recognition of same-sex unions to fall short of marriage, including ‘civil unions’ or ‘domestic registered partnerships,’ would be insufficient. Further, it was argued that in extending marriage to same-sex couples, gays and lesbians would be able to claim benefits that were immediately available to newly married heterosexual couples.

The federal government was much more hesitant in extending the right to marriage to gays and lesbians than with other equality rights. In 1999, the Reform Party of Canada (which later became the Canadian Alliance Party, and then merged into the Conservative Party of Canada) introduced a resolution in the House of Commons to reaffirm the traditional definition of marriage as “the union of one man and one woman to the exclusion of all others.” This resolution was overwhelmingly passed, with support from members of all political parties, including the governing Liberal Party. In 2000, the federal Liberal government introduced Bill C-23, which made changes to spousal and common-law benefits and obligations. This legislation included the traditional definition of marriage and continued to exclude same-sex couples from full marriage rights.

In 2003, two events altered the position of the federal Liberal government on the same-sex marriage issue:

The Ontario Court of Appeal in Halpern v. Canada ruled that the exclusion of same-sex couples from the definition of marriage violated equality rights under the Canadian Charter of Rights and Freedoms. (See the Charter, Equality and Same-Sex Marriage section of this article for more information on the Ontario Court of Appeal decision.)
In early 2003, the House of Commons Standing Committee on Justice and Human Rights began a formal study of same-sex marriage. Involving expert testimony and cross-country public hearings, the Standing Committee would ultimately recommend to the federal government that it should accept the decision of the Ontario Court of Appeal and change the definition of marriage to include same-sex couples.

Legalization of Same-sex Marriage

In June 2003, the Chrétien Liberal government announced it would not appeal the Ontario Court of Appeal ruling. Instead, the Liberal government would introduce new legislation to change the definition of marriage to include same-sex couples. According to the proposed legislation’s key tenets, marriage (for civil purposes) was to be the lawful union of two persons to the exclusion of all others, and nothing in the legislation would interfere with the freedom of officials of religious groups to refuse to perform marriages that were not in accordance with their religious beliefs.

The Liberal government referred the new legislation to the Supreme Court of Canada, asking the Court to affirm the power of the federal government to change the definition of marriage, and to assess whether the new legislation was consistent with the Charter of Rights and Freedoms.

See the Charter, Equality and Same-Sex Marriage section of this article for more information on the Supreme Court of Canada decision.

In September 2003, the Canadian Alliance introduced a motion in the House of Commons to reaffirm the traditional definition of marriage as a union between one man and one woman. Unlike the vote in 1999, however, this motion was narrowly defeated by a margin of 137-132, with Prime Minister Chrétien and many Liberals, including his successor-to-be Paul Martin, voting against the motion. More than 30 Members of Parliament did not attend the vote, the majority being Liberals who had voted for the traditional definition of marriage in 1999.

In December 2004, following the Supreme Court of Canada’s ruling in the same-sex marriage reference, the new Liberal Prime Minister, Paul Martin, announced his government would move forward on the issue. In February 2005, the government introduced Bill C-38, the Civil Marriage Act, which extended the right of marriage to same-sex couples. A vote on the proposed legislation took place on June 28, 2005, and the Act was passed by a margin of 158 to 133. The majority of Liberal, NDP, and Bloc MPs voted in favour of the legislation, while the majority of Conservative MPs voted against it. Following the vote in the House, Bill C-38 was sent to the Senate, where it passed by a vote of 47 to 21 on July 19th. The legislation received Royal Assent from the Governor General (thus becoming law) on July 20th.

The vote revealed some strong divisions within parties on the issue. No party was unanimous in voting either for or against the legislation, and there were a few instances of high-profile dissent. While the Liberal Party allowed backbenchers to vote freely on the Act, it required all members of Cabinet to support the government legislation. On the day of the vote, Liberal minister Joe Comuzzi resigned his Cabinet post in order to vote against same-sex marriage. In the NDP, Bev Desjarlais was stripped of her position in the Party’s shadow cabinet for failing to vote in favour of the Act. She was the only NDP MP to vote against same-sex marriage.

The following table provides a breakdown of how the federal parties voted in the House of Commons:

Party	For	Against	Absentees	Total
Liberals	95	32	4	131
Conservatives	3	93	2	98
Bloc	43	5	6	54
NDP	17	1	1	19
Independents	0	2	2	4

In 2007, Prime Minister Stephen Harper's new Conservative government introduced a motion to restore the traditional definition of marriage; the motion was defeated in the House of Commons by a margin of 175-123. Prime Minister Harper publicly stated that the vote was decisive and that his government would not return to the issue.

The Charter, Equality and Same-Sex Marriage

Why does the traditional definition of marriage violate the Charter?

A majority of elected politicians in the House of Commons voted in favour of legislation that changed the definition of marriage to include gays and lesbians. However, the democratic process was motivated in large part by forces outside of Parliament, specifically, the judiciary and the Canadian Charter of Rights and Freedoms. Several courts ruled that the traditional definition of marriage violated the Charter right to equality. The federal government did not oppose this decision, deciding instead to draft and pass new legislation that extended the right to marriage to gays and lesbians.

An important issue, then, is the relationship between the Charter, equality rights and the definition of marriage. What equality rights are provided for under the Charter? Why did the traditional definition of marriage violate these rights?

Full Text of the Canadian Charter of Rights and Freedoms

Traditional Definition of Marriage

Same-sex marriages were not traditionally recognized under Canadian law. The definition of marriage, based on the British common law definition, was “the lawful union of one man and one woman to the exclusion of all others.” In other words, only two people of different sexes could legally marry. In June 1999, Canada’s Parliament reaffirmed this definition when it passed the motion (mentioned earlier) defining marriage as being between a man and a woman.

The Charter and Equality

Judicial rulings on same-sex marriage have focused on equality rights under Section 15 of the Canadian Charter of Rights and Freedoms. What is Section 15?

Section 15 states:

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 ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 15 does not explicitly prohibit discrimination on the basis of sexuality (whether someone is gay or lesbian). However, the Supreme Court of Canada has held that discrimination based on sexuality is analogous to discrimination based on race, national or ethnic origin, or colour, and, as such, is prohibited under Section 15 of Canada's Charter.

Supporters of the legalization of same-sex marriage argued that the traditional definition of marriage, as the “union of one man and one woman,” violates equality rights under Section 15 of the Charter because it excludes gay and lesbian couples from the same protection and benefits under the law as heterosexual couples are afforded. The issue eventually made its way through the Canadian court system. The following overviews two important cases: the Ontario Court of Appeal decision in Halpern v. Canada and the Supreme Court of Canada decision in Reference Re: Same-Sex Marriage.

Ontario Court of Appeal: Halpern v. Canada

In Halpern v. Canada, two same-sex couples decided to be married in a religious ceremony at the Metropolitan Community Church of Toronto (MCCT), a Christian Church that conducts marriages for its homosexual members. The Ontario government, however, refused to register the marriages, arguing that the federal definition of marriage excluded same-sex marriages. The couples took the issue to court; the case was ultimately heard by the Ontario Court of Appeal (the highest provincial court in Ontario).

In its decision, the Ontario Court of Appeal concluded that the traditional definition of marriage unconstitutionally violated persons' Charter right to equality. As such, the Court declared the traditional definition of marriage to be invalid and reformulated the definition as “the voluntary union for life of two persons to the exclusion of all others.”

In making its decision, the Court gave the following reasons:

The “one man and one woman” requirement in the definition of marriage creates a formal distinction between opposite-sex and same-sex couples on the basis of sexual orientation. Furthermore, exclusion from the institution of marriage perpetuates the view that same-sex couples are not capable of forming loving and lasting relations, and that same-sex relationships are not worthy of the same respect and recognition as opposite-sex relationships. As such, it offends the dignity of persons in same-sex relationships.
The federal government has argued the exclusion of same-sex couples from marriage was necessary to encourage procreation and child-rearing. The Court disagreed, concluding that heterosexual couples would not stop having or raising children because same-sex couples were permitted to marry. Moreover, the Court noted that many heterosexual couples often do not procreate or rear children, while many same-sex couples have and raise children.

Read the Full Text of the Ontario Court of Appeal Decision in Halpern v. Canada

Supreme Court of Canada: Reference Re. Same-Sex Marriage

The Chrétien government did not appeal the decision of the Ontario Court of Appeal, instead deciding to draft a bill that would change the definition of marriage in Canada to include same-sex couples. In 2003, the federal government referred the proposed bill to the Supreme Court of Canada for constitutional review. This reference, as originally posed by the Chrétien government, asked three questions:

(1) Was the definition of marriage within the exclusive legislative authority of the federal Parliament of Canada? In other words, did the federal government have the authority to change the definition without the permission of the provinces?

(2) Was the inclusion of same-sex couples within the definition of marriage consistent with the Charter of Rights and Freedoms?

(3) Did the freedom of religion guaranteed by the Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between same-sex couples that was contrary to the religious beliefs of those officials?

In 2004, the new Liberal government, led by Paul Martin, added a fourth question to the reference:

(4) Is the traditional definition of marriage (between one man and one woman) consistent with the Charter of Rights and Freedoms?

In its ruling, later in 2004, the Supreme Court found the following:

Federal Powers: The federal government did have the exclusive authority to amend the definition of marriage. In other words, the federal government could change the legal definition of marriage without the permission of the provinces.
Same-Sex Marriage and the Charter: The Supreme Court concluded that the new definition of marriage, which included same-sex couples, did not violate the Charter. This did not mean that the Charter required the new definition (see below), but simply that in legalizing same-sex marriage the government was not violating any constitutional rights under the Charter.
Freedom of Churches: The Supreme Court also held that religious institutions could not be forced to perform same-sex marriage ceremonies that went against the beliefs espoused by their religious faith.
Traditional Definition and the Charter: The Court exercised its discretion and chose not to answer the fourth question referred to it; namely, whether the traditional definition of marriage violated the Charter. The Court held that this issue had already been addressed by provincial lower courts and accepted by the federal government.

Read the Full Text of the Supreme Court of Canada Decision

Impact of the Judicial Decisions

These judicial decisions had two important impacts on the politics of same-sex marriage in Canada.

First, the ruling by the Ontario Court of Appeal, and the decision of the federal government not to appeal that ruling, effectively broadened equality rights in Canada to include the right to same-sex marriage. While the Supreme Court of Canada did not explicitly uphold the right to same-sex marriage, neither did it assert that no right existed. In the end, the decision of the Ontario Court of Appeal has been left to stand.

Second, the ruling by the Supreme Court of Canada was important in that it eliminated the provinces from the picture. While many provinces were quick to adopt the new definition of marriage, some provinces had protested (Alberta, for example, even suggested that it might go as far as to invoke the Charter's notwithstanding clause in order to protect the traditional definition of marriage). However, with the Supreme Court of Canada's ruling that only the federal government has the authority to make laws relating to marriage, these protests became, in essence, non-consequential. The provinces have no constitutional jurisdiction over the definition of marriage and must abide by the decision of the federal government.

Civil Marriage Act: An Overview

How did the new law change the institution of marriage?

In February 2005, Paul Martin’s minority Liberal government introduced new legislation in the House of Commons pertaining to same-sex marriage. The official name of the legislation, Bill C-38, also known as the Civil Marriage Act, became law on July 20, 2005.

What are the specifics of this legislation?

New Definition of Marriage

The Civil Marriage Act extends the definition of marriage to include same-sex couples. The legal definition of marriage under the Act is as follows:

“Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”

In addition to expanding the definition of marriage, the Act also extends full legal benefits and obligations of marriage to same-sex couples; under this legislation, they receive equal treatment to that received by married heterosexual couples under Canada’s business corporation and cooperatives laws, and in regard to veterans’ benefits, divorce, and income taxes.

Purpose of the Civil Marriage Act

The Civil Marriage Act makes several statements concerning the purpose of the change in the definition of marriage:

The Act recognizes that many provincial courts have found that equality rights, under Section 15 of the Charter of Rights and Freedoms, include the right to marriage without discrimination based on sexuality. Accordingly, the Act recognizes that same-sex couples should have the same access to marriage as opposite-sex couples.
The Act states that only equal access to marriage, for civil purposes, would respect the equality rights of same-sex couples. Civil union, as an institution other than marriage, would not offer same-sex couples equal access and would violate their human dignity.

Notwithstanding Clause and the Civil Marriage Act

Interestingly, the Civil Marriage Act makes explicit reference to Section 33 of the Charter (also known as the notwithstanding clause). The Act asserts that the Parliament of Canada’s commitment to uphold the right to equality, without discrimination, precludes the use of the Charter’s notwithstanding clause to deny the right of same-sex marriage.

Freedom of Religion

Finally, the Civil Marriage Act explicitly provides for the freedom of religion for churches and religious groups. Under the Act, it is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with the religious views of their respective faiths.

Read the Full Text of the Civil Marriage Act

Links for Further Information

List of links for more information on this topic

Canadian Government Links

Legislation Links

Links to Canadian Court Decisions on Same-Sex Marriage

Advocacy Group Links

Research Links

Canada Department of Justice (2002): “ Marriage and Legal Recognition of Same-sex Unions”
Alberta Law Reform Institute (2002): “Recognition of Rights and Obligations in Same Sex Relationships” (PDF)
Law Commission of Canada: “The Legal Organization of Personal relationships”
NFO CFgroup Poll on Same-Sex Marriage (2003) (PDF)

International Links

Massachusetts Trial Court Law Libraries: “Massachusetts Law About Same-Sex Marriage”
United States Department of Justice
The President of the United States of America
Netherlands Department of Justice (English)