Canadian Constitutional Law

Canadian Constitutional Law.

Canada's law derives not only from a set of documents known as Constitution Acts, but also a set of unwritten laws and conventions. This comprises all of the acts passed since 1867. As a result, all constitutional documents during that time period have the force of law.

Canadian Constitutional Law - The British North America Act, 1867

The British North America Act, 1867 (BNA Act, 1867) was passed by the British Parliament in 1867. It is the law that created the Canadian Confederation. Many other Acts called British North America Act were later passed, amending the 1867 Act, or adding to it.

A federation usually consists of at least two main levels of government - local states or provinces, and a federal government. Canada is no different. However, these levels can't share the same powers, as that would lead to direct competition and chaos.

The BNA Act was passed to set the legal ground rules for Canada, and divvy up the powers between the provinces and the federal government.

Section 91 of the BNA Act lists the powers the federal Parliament can exercise. Section 92 lists the powers of the Provincial Legislatures. Unless the parties agree otherwise, the federal government must not make laws dealing with matters of provincial jurisdiction, and vice versa. If one party does pass a law that intrudes on the jurisdiction of the other, the courts will strike it down.

Some of the key areas of federal and provincial responsibility are:


Canadian Constitutional Law - Federal

  • The Public Debt and Property.
  • The Regulation of Trade and Commerce.
  • The Raising of Money by any Mode or System of Taxation.
  • Postal Service.
  • Militia, Military and Naval Service, and Defense.
  • Navigation and Shipping.
  • Currency and Coinage.
  • Banking, Incorporation of Banks, and the Issue of Paper Money.
  • Indians, and Lands reserved for the Indians.
  • Naturalization and Aliens.
  • Marriage and Divorce.
  • The Criminal Law.


Canadian Constitutional Law - Provincial

  • Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.
  • The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
  • The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities.
  • Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
  • Local Works and Undertakings.
  • The Solemnization of Marriage in the Province.
  • Property and Civil Rights within the Province.
    The Administration of Justice in the Province.
  • Generally all Matters of a merely local or private Nature in the Province.

You may notice that religion isn't mentioned anywhere.

In 1982, the power to amend Canada's Constitution is repatriated - brought home to Canada from Britain - and the new Act is called the Constitution Act, 1982.

The BNA Act is not repealed, just re-named. It becomes part of the new Constitution as the Constitution Act, 1867.

Canadian Constitutional Law - Canada Expands to Nationhood

After the American Revolution two new provinces were created; Ontario and New Brunswick, to accommodate the United Empire Loyalists who were moving out of the United States.

In 1867 four provinces, Quebec, Ontario, New Brunswick and Nova Scotia joined to form Canada. Other events followed quickly:
  • 1868 - Rupert's Land was purchased and added to Canada;
  • 1870 - Manitoba was carved out of a portion Rupert's Land;
  • 1871 - There was union with British Columbia on the promise to expedite the completion of the cross Canada railway;
  • 1873 - Prince Edward Island joined confederation;
  • 1880 - Manitoba acquired more territory from Northwest Territories;
  • 1886 - Islands and territories adjacent to Rupert's Land were added;
  • 1898 - Yukon Territory formed out of Northwest Territories;
  • 1905 - Alberta and Saskatchewan became provinces;
  • 1912 - Manitoba, Ontario and Quebec acquired territory from Northwest Territories to form their present boundaries;
  • 1949 - Newfoundland, which includes Labrador, joined confederation;
  • 1999 - Nunavut was formed out of the eastern part of Northwest Territories.

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