List of Canadian constitutional documents
The Constitution of Canada is a large number of documents that have been entrenched in the constitution by various means. Regardless of how documents became entrenched, together those documents form the supreme law of Canada; no non-constitutional law may conflict with them, and none of them may be changed without following the amending formula given in Part V of the Constitution Act, 1982.
The constitution includes legislation that was specifically written as constitutional documents, statutes that have become entrenched since their original creation, some ancient treaties and royal proclamations, unwritten procedures adopted from the British parliamentary system of government, and unwritten underlying values.
The oldest Canadian constitutional documents were enacted before Confederation, and originated from the English or British government. Those documents were received—along with many subconstitutional laws—into the law of Canada and its provinces by means of section 129 of the Constitution Act, 1867. Between Confederation in 1867 and patriation in 1982, the United Kingdom enacted some Canadian constitutional documents by means of the Colonial Laws Validity Act 1865 and the Statute of Westminster, 1931, most notably the British North America Acts. During this time, Canada also passed a small number of constitutional documents for itself. After patriation, all new constitutional documents were passed by the Parliament of Canada and the Legislatures of its provinces.
After patriation, the methods of constitutional entrenchment are:
- specific mention as a constitutional document in section 52 of the Constitution Act, 1982;
- amendments to constitutional documents using the amending formula in Part V the Constitution Act, 1982;
- in some cases, reference by an entrenched document;
- ruling by a court that a practice is part of Canada's unwritten constitution; or
- judicial interpretation of constitutional provisions.
Legislation mentioned in §52(2)
Section 52 of the Constitution Act, 1982 says "The Constitution of Canada includes the Canada Act 1982, including this Act; the Acts and orders referred to in the schedule; and any amendment to any Act or order referred to in paragraph or." The schedule, in turn, lists the following documents. Most were British North America Acts and were renamed as Constitution Acts in 1982. Others include the Parliament of Canada Act, 1875, the Statute of Westminster, 1931, and acts that created new provinces or changed provincial borders.All of these acts were originally enshrined by the Colonial Laws Validity Act 1865 in the case of acts by the United Kingdom Parliament or enshrined by the British North America Act, 1949 or the British North America Act, 1871 in the case of acts by the Canadian Parliament.
In addition to the acts listed here, six other acts were listed as constitutional in §52 but were repealed at the same time.
| Name | Full text | Purpose | Old name |
| Constitution Act, 1867 , reprinted in | Entails the original creation of a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. | British North America Act, 1867 | |
| Manitoba Act, 1870 , reprinted in | Created the province of Manitoba and continued in force An Act for the Temporary Government of Rupert's Land and the North-Western Territories when united with Canada. | An Act to amend and continue the Act 32-33 Victoria, chapter 3; and to establish and provide for the Government of the Province of Manitoba | |
| Rupert's Land and North-Western Territory Order , reprinted in | Royal Order declaring that Rupert's Land become a part of Canada, effective July 15, 1870. Relieved Hudson's Bay Company of any unsettled Aboriginal claims, effectively making it the responsibility of the Canadian government. | Order of Her Majesty in Council admitting Rupert's Land and the North-Western Territory into the Union | |
| British Columbia Terms of Union , reprinted in | Admitted the colony of British Columbia as a province into the Dominion of Canada. | Order of Her Majesty in Council admitting British Columbia into the Union | |
| Constitution Act, 1871 , reprinted in | Gave Canada the power to establish new provinces and territories and change provincial boundaries with the affected province's consent. The Act recognized the creation of the province of Manitoba and the incorporation of Rupert's Land and the North-Western Territory into Canada. | British North America Act, 1871 | |
| Prince Edward Island Terms of Union , reprinted in | Admitted the colony of Prince Edward Island as a province into the Dominion of Canada. | Order of Her Majesty in Council admitting Prince Edward Island into the Union | |
| Parliament of Canada Act, 1875 38 & 39 Vict, c 38, reprinted in | Clarified the power of the Canadian Parliament to legislate over, "privileges, immunities, and powers of," its members. | Parliament of Canada Act, 1875 | |
| Adjacent Territories Order 31 July 1880, reprinted in | Admitted all remaining territories of British North America surrounding Canada into Canada. | Order of Her Majesty in Council admitting all British Territories possessions in North America and Islands adjacent thereto into the Union | |
| Constitution Act, 1886 , reprinted in | Gave parliament the authority to allow the territories of Canada to have representation in the Canadian Senate and Canadian House of Commons. | British North America Act, 1886 | |
| Canada Act, 1889 ,reprinted in | Extended the boundaries of Ontario. | Canada Act, 1889 | |
| Alberta Act ,reprinted in | Created the province of Alberta out of part of the North-Western Territory, established the province's government, and created a system of subsidies to be provided by the federal government to the province. | The Alberta Act, 1905 | |
| Saskatchewan Act ,reprinted in | Created the province of Saskatchewan out of part of the North-Western Territory, established the province's government, and created a system of subsidies to be provided by the federal government to the province. | The Saskatchewan Act, 1905 | |
| Constitution Act, 1907 , reprinted in | Regulated transfer payments by the federal government to smaller provinces to support their legislatures and governments. | British North America Act, 1907 | |
| Constitution Act, 1915 , reprinted in | Expanded the Canadian Senate by giving Western Canadian provinces 24 Senators, the same number guaranteed to Ontario, Quebec and the Maritime provinces. The Act also guaranteed Newfoundland six Senators should the British colony join Confederation. | British North America Act, 1915 | |
| Constitution Act, 1930 20 & 21 Geo V, c 26, reprinted in | Gave the newer provinces of British Columbia, Alberta, Manitoba and Saskatchewan rights over certain natural resources found in federally controlled crown lands. | British North America Act, 1930 | |
| Statute of Westminster, 1931 , reprinted in | Established legislative equality for the self-governing dominions of the British Empire with the United Kingdom and gave Canada effective legislative independence on most matters. | Statute of Westminster, 1931 | |
| Constitution Act, 1940 , reprinted in | Gave the federal government the jurisdiction over Unemployment Insurance thus allowing such a program to be created on a national level. | British North America Act, 1940 | |
| Newfoundland Act , reprinted in | Confirmed and gave effect to the Terms of Union agreed to between the then-separate Dominions of Canada and Newfoundland on March 23, 1949. | British North America Act, 1949 | |
| Constitution Act, 1960 , reprinted in | Instituted a mandatory retirement age of 75 for all superior court judges. | British North America Act, 1960 | |
| Constitution Act, 1964 1964, c 73, reprinted in | Expanded the federal government's jurisdiction over pensions to include survivor benefits and disability benefits while continuing to allow provincial legislation. This amendment to the BNA Act made the Canada Pension Plan possible. | British North America Act, 1964 | |
| Constitution Act, 1965 ,reprinted in | Instituted a mandatory retirement age of 75 for all persons appointed to the Canadian Senate. | British North America Act, 1965 | |
| Constitution Act, 1974 ,reprinted in | Changed the rules for the redistribution of seats in the Canadian House of Commons so that Quebec would have 75 seats while other provinces seat allocation would be determined based on the size of their population in comparison to Quebec's. Provinces continued to be guaranteed to have at least as many MPs as Senators. | Representation Act, 1974; changed to British North America Act, 1974 in 1977 | |
| REPLACED Constitution Act, 1975 ,reprinted in | Increased the number of MPs representing the Northwest Territories into two. Replaced by section 46 of Constitution Act, 1999 . | Northwest Territories Representation Act; changed to British North America Act, 1975 in 1977 | |
| Constitution Act, 1975 , reprinted in | Increased the number of Senate seats to 104 from 102 and allocated one seat for the Yukon and one for the Northwest Territories. | British North America Act, 1975 | |
| Canada Act 1982 , reprinted in | Decreed that no future acts of the United Kingdom Parliament would extend to Canada, thereby patriating the constitution. Includes a French language version that has equal legal weight as Schedule A. Includes the Constitution Act, 1982 as Schedule B. | Canada Act 1982 | |
| Constitution Act, 1982 , reprinted in | Made several amendments to the British North America Act, 1867. Includes the Charter of Rights and Freedoms as Part I. Recognized Aboriginal rights. Amended the equalization formula. Created an amending formula for the Constitution. Declared the above list of documents to be part of the Constitution. | Constitution Act, 1982 |
Amendments
Part V of the Constitution Act, 1982 describes the process required for amending any constitutional document from then on. The general process requires the agreement of the federal government plus seven provinces with at least 50% of the population, but some amendments require unanimity of the provinces, and some can be done unilaterally by the federal government or bilaterally by the federal government and a provincial government. As of 2013, eleven amendments have been made under the 1982 amending formula, one of which was later repealed.| Name | Full text | Purpose |
| Constitution Amendment Proclamation, 1983 SI/84-102, C Gaz II, 2984 | Strengthened Aboriginal rights in the Constitution. | |
| REPLACED Constitution Act, 1985 SC 1986, c 8, Part I | Modified the formula for apportioning seats in the House of Commons. Part of Representation Act, 1985. Replaced by Fair Representation Act, SC 2011, c 26. | |
| REPLACED Constitution Amendment, 1987 SI/88-11, C Gaz II, 887 | Extended education rights to the Pentecostal Church in Newfoundland. Replaced by Constitution Amendment, 1998. | |
| Constitution Amendment, 1993 SI/93-54, C Gaz II, 1588 | Added Section 16.1 to the Canadian Charter of Rights and Freedoms, which made the English and French linguistic communities in New Brunswick equal, with the right to distinct cultural and educational institutions. | |
| Constitution Amendment, 1993 SI/94-45, C Gaz II, 2021 | Allowed for a "fixed link" bridge to replace ferrying services to Prince Edward Island. | |
| Constitution Amendment, 1997 SI/97-55, C Gaz II, Extra No 4 | Allowed the Province of Newfoundland to create a secular school system to replace the church-based education system. Use was also made, for the first time, of §47 of the Constitution Act, 1982, which permits the House of Commons to bypass the Senate by re-enacting a draft amendment which the Senate has not adopted. | |
| Constitution Amendment, 1997 SI/97-141, C Gaz II, 308 | Permitted the Province of Quebec to replace the denominational school boards with ones organized on linguistic lines. The preamble to the resolution of the Quebec National Assembly adopting the amendment makes no reference to which amending formula is being used, and includes the following statement: "Whereas such amendment in no way constitutes recognition by the National Assembly of the Constitution Act, 1982, which was adopted without its consent." | |
| Constitution Amendment, 1998 SI/98-25, C Gaz II, Extra No 1 | Ended denominational quotas for Newfoundland religion classes. | |
| Constitution Act, 1999 SC 1998, c 15, Part II | Granted the Territory of Nunavut representation in the Senate of Canada. The constitutional amendment was contained in sections 43 to 47 of a bill titled "An Act to amend the Nunavut Act and the Constitution Act, 1867" At the time of the Act's adoption, Leader of the Opposition Preston Manning argued that both this Act and the Nunavut Act of 1993 ought to have been adopted using a more inclusive amendment formula, and that the failure to use the appropriate formula could result in future constitutional difficulties. | |
| Constitution Amendment, 2001 SI/2001-117, C Gaz II, Extra No 6 | Changed the name of the "Province of Newfoundland" to the "Province of Newfoundland and Labrador". | |
| Fair Representation Act sections 2, 14, 15, and 17 to 20 SC 2011, c 26, ss 2, 14, 15, 17–20 | Modified the formula for apportioning seats in the House of Commons. Only sections 2, 14, 15, and 17–20 are entrenched in the Constitution, but unlike other amendments, this act did not give a separate title for citing just those sections. |
Documents entrenched by reference
A document can become entrenched in the Constitution if it is mentioned by a document that is already entrenched. There is no conclusive list of documents, or parts of documents, that are entrenched in this way, so courts may expand or restrict this list in the future.One notable example are agreements with the Aboriginal people of Canada. Section 35 of the Constitution Act, 1982 says that "the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed", while section 25 recognizes that rights in the Charter will not abrogate or derogate from existing or future aboriginal rights. By referencing these agreements in a constitution act, these agreements are, themselves, given constitution-level authority. These rights include:
- the Proclamation of 1763, and
- existing or future land claim agreements.
Some documents became entrenched in the constitution in 1982 because the amending formula in Part V of the Constitution Act, 1982, says that their subject matter can only be amended using the amending formula. In some cases, only part of the document is affected by this. Not all relevant documents have been tested in court to see whether they have truly become Constitutionally entrenched, while others have been deemed by the Supreme Court to be part of Canada's constitution. Two notable examples are the power to make changes to the office of the Governor General of Canada and the Supreme Court of Canada. Although the documents creating those two institutions are not mentioned in §52 as constitutional documents, they may be partially entrenched by being included in the amending formula. Acts governing these bodies are:
- parts of the Supreme Court Act and
- parts of the Letters Patent, 1947.
- parts of the English Bill of Rights, 1689 relating to the monarchy and
- parts of the Act of Settlement, 1701 relating to the monarchy.
Unwritten constitutional sources
Some constitutional rules in Canada cannot be found in any of the above documents, and have been ruled to be implicitly part of the Canadian constitution by the courts. Many of these rules are old British conventions that were incorporated into Canadian law by the preamble of the Constitution Act, 1867, which says that the Constitution should be "similar in Principle to that of the United Kingdom", much of which itself is unwritten. There are three general sources of unwritten constitutional rules: conventions, royal prerogative, and unwritten principles.The first type of unwritten source is constitutional conventions. This includes the role of the Prime Minister of Canada, which was not mentioned in the Constitution until 1982, and even then only in passing. It also includes the fact that the governor general in most circumstances is required to grant Royal Assent to bills adopted by both houses of parliament, and the requirement that the prime minister either resign or request a dissolution and general election upon losing a vote of confidence in the House of Commons. Many of unwritten rules based on the preamble concern the procedure for how the Parliament of Canada and the Assemblies of its provinces are run. For example, in the case New Brunswick Broadcasting Co. v. Nova Scotia , the Supreme Court of Canada ruled that parliamentary privilege is a part of the unwritten convention in the Constitution of Canada, which means that Parliament may use parliamentary privilege to take certain actions even though they violate another part of the constitution. Most of these procedures have never been addressed by the Supreme Court, so it is not clear which ones form part of the constitution.
The second type of unwritten source is the royal prerogative: reserve powers of the Canadian Crown, being remnants of the powers once held by the British Crown, reduced over time by the parliamentary system. Primarily, these are the Orders in Council, which give the government the authority to declare war, conclude treaties, issue passports, make appointments, make regulations, incorporate, and receive lands that escheat to the Crown.
The third type, unwritten principles, are values that are incorporated into the Canadian constitution by the preamble of the Constitution Act, 1867. Unlike conventions, they are legally binding. In Reference re Secession of Quebec, the court ruled that there are at least four fundamental tenets that form part of the constitutional framework of Canada: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Other principles include responsible government, representation by population, judicial independence, parliamentary supremacy, and an implied bill of rights. In one case, the Provincial Judges Reference, it was found a law can be held invalid for contradicting unwritten principles, in this case judicial independence.
Judicial interpretations
Interpretation of the Canadian Constitution has been significantly affected by the decisions of courts, which have the power to determine the meaning of phrases and, in some cases, even read into it rules that are implied but not directly stated. Canada's Constitution is not limited to the interpretation that would have been used by the original drafters, unlike countries that use originalism to interpret their constitutions. The power of the courts to update the meaning of the Constitution to fit with changing times was first established in the Persons Case, which decided that the word "person" in the Constitution included women. The Persons Case referred to this principle as the "living tree doctrine".In spite of the living tree doctrine, for several decades Canadian courts mostly limited themselves to interpreting the Constitution for issues of jurisdiction. For example, courts determined that airports were within the power of the federal government even though the original drafters of the Constitution could not have conceived of an airport. After the introduction of the Constitution Act, 1982 and the Charter of Rights and Freedoms, Canadian courts became much more active in interpretation of Constitutional questions. One notable example is in the case of gay rights and section 15 of the Charter. Section 15 lists grounds against which people may not be discriminated by the government, and includes race, religion, sex, and others, but it does not limit itself to the listed grounds. Consequently, numerous provincial superior court cases, beginning with Halpern v. Canada in Ontario, ruled that sexual orientation was an unwritten protected ground under section 15.
Repealed constitutional documents
Repealed before 1982
There were a number of documents that are generally seen as constitutional but were repealed before the Canada Act came into effect. The Revised Statute of Canada 1970 contains a list of constitutional documents, which was drafted by the government although was not an official list like the schedule of the Constitution Act 1982 would be. That list contained the pre-1970 documents listed in the schedule of the Constitution Act 1982, plus the Royal Proclamation 1763 and the following documents. All of the following documents were either redundant with a later constitutional document, were repealed, or were spent after they served their one purpose.| Name | Full text | Purpose |
| Quebec Act, 1774 14 Geo III, c 83, reprinted in RSC 1970, App II, No 2 | ||
| Constitutional Act of 1791 31 Geo III, c 31, reprinted in RSC 1970, App II, No 3 | ||
| Act of Union 1840 3 & 4 Vict, c 35, reprinted in RSC 1970, App II, No 4 | ||
| Rupert's Land Act 1868 31 & 32 Vict, c 105, reprinted in RSC 1970, App II, No 6 | An Act for enabling Her Majesty to accept a Surrender upon Terms of the Lands, Privileges, and Rights of "The Governor and Company of Adventurers of England trading into Hudson's Bay," and for admitting the same into the Dominion of Canada. The land were admitted into Canada, to the purpose of the act is spent. | |
| Temporary Government of Rupert's Land Act, 1869 SC 1869, c 3 | Fully titled "An Act for the temporary Government of Rupert's Land and the North-Western Territory when united with Canada". Originally set to expire at the end of the next session of Parliament, but extended by the Manitoba Act until the end of the session of Parliament next succeeding 1 January 1871. It thus expired at the end of the 4th session of the 1st Canadian Parliament on 14 April 1871. | |
| Statute Law Revision Act, 1893 56 & 57 Vict, c 14, reprinted in RSC 1970, App II, No 16 | Removed spent sections of the Constitution Act, 1867 | |
| Yukon Territory Act, 1898 SC 1898, c 6 | ||
| British North America Act, 1916 6 & 7 Geo V, c 19, reprinted in RSC 1970, App II, No 23 | Extended the term of the 12th Parliament of Canada. Repealed by Statute Law Revision Act, 1927. | |
| Statute Law Revision Act, 1927 17 & 18 Geo V, c 42, reprinted in RSC 1970, App II, No 24 | Removed section 1 from the British North America Act, 1915 and repealed British North America Act, 1916. | |
| Statute Law Revision Act, 1950 14 Geo VI, c 6, reprinted in RSC 1970, App II, No 32 | Removed the redundant section 118 of the Constitution Act, 1867. | |
| Miscellaneous Statute Law Revision Act, 1977 1977, c 28 | Renamed constitutional documents that were, again renamed by the Constitution Act, 1982. |
Repealed in 1982 by §52(2)
There were six acts named as constitutional in §52 of the Constitution Act, 1982, but were repealed at the same time:| Name | Full text | Purpose |
| Canadian Speaker Act, 1895 59 Vict, c 3, reprinted in RSC 1970, App II, No 17 | "An Act for removing Doubts as to the Validity of an Act passed by the Parliament of the Dominion of Canada respecting the Deputy-Speaker of the Senate" | |
| British North America Act, 1943 6 & 7 Geo VI, c 30, reprinted in RSC 1970, App II, No 28 | "An Act to provide for the readjustment of the representation of the provinces in the House of Commons of Canada consequent on the decennial census taken in the year one thousand nine hundred and forty-one" | |
| British North America Act, 1946 9 & 10 Geo VI, c 63, reprinted in RSC 1970, App II, No 29 | "An Act to provide for the readjustment of representation in the House of Commons of Canada on the basis of the population of Canada" | |
| British North America Act, 1949 13 Geo VI, c 81, reprinted in RSC 1970, App II, No 31 | "An Act to amend the British North America Act, 1867, as respects the amendment of the Constitution of Canada" | |
| British North America Act, 1951 14 & 15 Geo VI, c 32, reprinted in RSC 1970, App II, No 33 | "An Act to amend the British North America Act, 1867" | |
| British North America Act, 1952 SC 1952, c 15 | "An Act to amend the British North America Acts, 1867 to 1951, with respect to the Readjustmunt of Representation in the House of Commons" |
Repealed after 1982
Three constitutional documents have been replaced using the 1982 amending formula:| Name | Full text | Purpose |
| Constitution Amendment, 1987 SI/88-11, C Gaz II, 887 | Extended education rights to the Pentecostal Church in Newfoundland. Replaced by Constitution Amendment, 1998. | |
| Constitution Act, 1975 SC 1974-75-76, c 28, part I | Increased the number of MPs representing the Northwest Territories into two. Replaced by section 46 of Constitution Act, 1999 . Originally titled British North America Act, 1975. | |
| Constitution Act, 1985 SC 1986, c 8, part I | Modified the formula for apportioning seats in the House of Commons. Part of Representation Act, 1985. Replaced by Fair Representation Act, SC 2011, c 26. |