Constitution of Canada - History of The Constitution

History of The Constitution

The first semblance of a constitution for Canada was the Royal Proclamation of 1763. The act renamed the northeasterly portion of the former French province of New France as Province of Quebec, roughly coextensive with the lower third of contemporary Quebec. The proclamation, which established an appointed colonial government, was the de facto constitution of Quebec until 1774, when the British parliament passed the Quebec Act, which expanded the province's boundaries to the Ohio and Mississippi Rivers, which was one of the grievances listed in the United States Declaration of Independence. Significantly, the Quebec Act also replaced the French criminal law presumption of guilty until proven innocent with the English criminal law presumption of innocent until proven guilty; but the French code or civil law system was retained for non-criminal matters.

The Treaty of Paris of 1783 ended the American War of Independence and sent a wave of British loyalist refugees northward to Quebec and Nova Scotia. In 1784, the two provinces were divided; Nova Scotia was split into Nova Scotia, Cape Breton Island (rejoined to Nova Scotia in 1820), Prince Edward Island, and New Brunswick, while Quebec was split into Lower Canada (southern Quebec) and Upper Canada (southern through lower northern Ontario). The winter of 1837–38 saw rebellion in both of the Canadas, with the result they were rejoined as the Province of Canada in 1841. This was reversed by the British North America Act in 1867 which established the Dominion of Canada.

Initially, on 1 July 1867, there were four provinces in confederation as "One dominion under the name of Canada": Canada West (former Upper Canada, now Ontario), Canada East (former Lower Canada, now Quebec), Nova Scotia, and New Brunswick. Title to the Northwest Territories was transferred by the Hudson’s Bay Company in 1870 and the province of Manitoba (the first to be established by the Parliament of Canada) was in the same year the first created out of it. British Columbia joined confederation in 1871, followed by Prince Edward Island in 1873. The Yukon Territory was created by Ottawa in 1898, followed by Alberta and Saskatchewan in 1905. The Dominion of Newfoundland, Britain's oldest colony in the Americas, joined Canada as a province in 1949. Nunavut Territory was created in 1999.

An Imperial Conference in 1926 that included the leaders of all Dominions and representatives from India (which then included Burma, Bangladesh, and Pakistan), led to the eventual creation of the Statute of Westminster in 1931. The statute, an essential transitory step from the British Empire to the Commonwealth of Nations, provided that all existing Dominions became fully independent of the United Kingdom (upon its ratification by the federal legislature for Canada) and all new Dominions would be fully independent upon the grant of Dominion status. Newfoundland never ratified the statute, so it was still subject to imperial authority when its entire system of government and economy collapsed in the mid-1930s. Canada did ratify the statute, but had requested an exception because the Canadian federal and provincial governments could not agree on an amending formula for the Canadian constitution. It would be another 50 years before this was achieved. In the interim, the British parliament periodically passed enabling acts with respect to amendments to Canada's constitution; this was never anything but a rubber stamp.

The patriation of the Canadian constitution was achieved in 1982 when the British and Canadian parliaments passed parallel acts: the Canada Act, 1982 ( 1982, c.11), in London, and the Constitution Act, 1982, in Ottawa. Thereafter, the United Kingdom was formally absolved of any remaining responsibility for, or jurisdiction over, Canada and Canada became responsible for her own destiny. In a formal ceremony on Parliament Hill in Ottawa, Queen Elizabeth II signed both acts into law on 17 April 1982. The Canada Act/Constitution Act included the Canadian Charter of Rights and Freedoms. Prior to the charter, there were various statutes which protected an assortment of civil rights and obligations, but nothing was enshrined in the constitution until 1982. The charter has thus placed a strong focus upon individual and collective rights of the people of Canada.

Enactment of the Charter of Rights and Freedoms has also fundamentally changed much of Canadian constitutional law. The Magna Carta, which has constitutional status in Canada, was occasionally called into service in legal argument. Since 1982, however, the arguments have been easier to make, because lawyers have been able to cite the relevant sections of the constitution rather than rely upon legal abstraction. The act also codified many previously oral constitutional conventions and has made amendment of the constitution significantly more difficult. Previously, the Canadian federal constitution could be amended by solitary act of the Canadian or British parliaments, by formal or informal agreement between the federal and provincial governments, or even simply by adoption as ordinary custom of an oral convention or unwritten tradition that was perceived to be the best way to do something. Since the act, amendments must now conform to certain specified provisions in the written portion of the Canadian constitution.