Constitution Act, 1982

The Constitution Act, 1982 (Schedule B of the Parliament of the United Kingdom's Canada Act 1982) is a part of the Constitution of Canada. Section 60 states that the Act may be called the Constitution Act, 1982, and that the Constitution Acts can be collectively called the Constitution Acts, 1867 to 1982. The act was introduced as part of Canada's process of patriating the constitution, introducing several amendments[1] to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867.

This process was necessary because, after the Statute of Westminster, 1931, Canada decided to allow the British Parliament to temporarily retain the power to amend Canada's constitution, on request from the Parliament of Canada. In 1981, the Parliament of Canada requested that the Parliament of the United Kingdom remove that authority from the UK. The passing of the UK's Canada Act 1982 in March 1982 confirmed the Patriation of the Constitution. This UK Act replaced the British North America Act, transferring to Canada the power of amending its own Constitution.[2]

On April 17, 1982, Queen Elizabeth II and Prime Minister Pierre Elliot Trudeau signed Canada's Proclamation of the Constitution Act, 1982.[3][4][5][6] The proclamation confirmed that Canada had formally assumed authority over its constitution, the final step to full sovereignty.[7][8][9] The Canadian Charter of Rights and Freedoms forms the first thirty-five sections (counting Section 16.1 and not counting Section 35) of the Constitution Act, 1982.

As of 2018, the government of Quebec has never formally approved of the enactment of the act, though the Supreme Court concluded that Quebec's formal consent was never necessary.[10] Nonetheless, it has remained a persistent political issue in Quebec. The Meech Lake and Charlottetown Accords were designed to secure approval from Quebec, but both efforts failed to do so.

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is a bill of rights. The Charter is intended to protect certain political and civil rights of people in Canada from the policies and actions of all levels of government. It exists to unify Canadians around a set of principles that embody those rights.[11][12] The Charter was preceded by the Canadian Bill of Rights, which was introduced by the government of John Diefenbaker in 1960. However, the Bill of Rights was only a federal statute, rather than a constitutional document. Therefore, it was limited in scope and was easily amendable. This motivated some within government to improve rights protections in Canada. The movement for human rights and freedoms that emerged after World War II also wanted to entrench the principles enunciated in the Universal Declaration of Human Rights.[13] Hence, the government of Prime Minister Pierre Trudeau enacted the Charter in 1982.

One of the most notable effects of the adoption of the Charter was to greatly expand the range of judicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Canadian Bill of Rights. The courts, when confronted with violations of Charter rights, have struck down unconstitutional statutes or parts of statutes, as they did when Canadian case law was primarily concerned with resolving issues of federalism. However, section 24 of the Charter granted new powers to the courts to enforce more creative remedies and to exclude more evidence in trials. These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada's mother country the United Kingdom, was based upon Parliamentary supremacy.[14]

Section 59 limits the application of section 23 of the Charter in Quebec. Paragraph 23(1)(a) of the Charter, which guarantees the minority language education rights of Canadian citizens "whose first language learned and still understood is that of the English or French minority linguistic minority population of the province in which they reside" will not be in force in Quebec until the Quebec government or legislature chooses to ratify it.[15]