1867 was a long time ago – what has happened since then?

A History of the Canada Act, 1982

On December 11, 1931, nearly 65 years after the Constitution Act, 1867 was passed, the British government passed the Statute of Westminster granting some of the former British colonies freedom from Britain, except in those areas where they wished to remain subordinate. [1]

This meant that Canada now had its own legislative independence. With the passing of this piece of legislation, Canada was also one step closer to minimizing its reliance on British legal formalities.

The next step would occur in 1949 with the abolition of all appeals to the Privy Council (Britain’s version of the Supreme Court). [2]

After the Statute of Westminster was passed, Canadian court cases were no longer appealed up to the British Privy Council as a final decision maker and there was very little left of the Canadian legal system for Britain to play a role in, except for Constitutional amendments.

Amending the Canadian Constitution

Along with the passing of the Statute of Westminster, the Canadian government had the option to patriate the Constitution – this would mean bringing the Constitution fully under Canadian control. However, it actually took another 50 years to do so. During these 50 years, Canadian lawmakers debated what the constitutional amending formula would look like – the formula that would allow the Constitution to be changed without Britain’s help. Could the federal Parliament amend the constitution alone? Would they need the consent of all provinces? Or just a majority of the provinces?

It was not until 1982, after years of debate and a Supreme Court of Canada Reference Decision, that the Canadian governments (both provincial and federal) agreed on the 7/50 amending formula. It was only then that they could bring the constitution back to Canada.

The constitutional amending procedure sets out how the Constitution can be changed. Today, the majority of the constitution can be changed upon approval from the Senate, the House of Commons, and the legislatures of at least two-thirds of the provinces (or 7 provinces) if these 7 provinces contain at least 50% of the population of all of the provinces – this is called the 7/50 rule. [3] For example, if Canada was to add a clause specifically about the environment to the Canadian Constitution, it would most likely have to be done using this formula.

The document that set out the constitutional amending formula and brought the Constitution fully under Canadian control was called the Constitution Act, 1982. [4] It was this document that, “enshrined the Charter of Rights and Freedoms in the Constitution, and completed the unfinished business of Canadian independence — allowing Canadians to amend their own Constitution without requiring approval from Britain.”[5]

This piece of legislation also abolished the power of the Westminster Parliament (Britain) to legislate for Canada. [6]

The Canadian Charter of Rights and Freedoms

Beyond providing a method for amending the Constitution, the Constitution Act, 1982 also introduced the Canadian Charter of Rights and Freedoms (the “Charter”), provided constitutional guarantees for Indigenous rights, and declared that the constitution was the supreme law of the land. [7]

The Charter is particularly important because this is the section of the Constitution which prevents the federal, provincial, and territorial governments from infringing upon individual Canadian rights and freedoms. To balance this restriction on government action, the Charter includes a number of balancing provisions.

Section 1 states that the Charter “guarantees the rights and freedoms set out in it subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This provides the government with an option to justify a Charter limit as reasonable under section 1. Another option is the inclusion of what is known as the notwithstanding clause – which allows government to exempt laws from certain Charter provisions, specifically sections 2 and 7 through 15, although only in exceptional circumstances.

<< What happens if there is a disagreement about the division of powers?

Was protection of the environment added to the Constitution in 1982? >>

[1] Statute of Westminster, 1931 (UK), 22 & 23 Geo V, c 4.

[2] Supreme Court of Canada, “Creation and Beginnings of the Court” (15 February 2018) online: https://www.scc-csc.ca/court-cour/creation-eng.aspx.

[3] Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11, s 38.

[4] Constitution Act, 1982.

[5] Stephen Azzi, “Constitution Act, 1982” (27 January 2016) The Canadian Encyclopedia online: http://www.thecanadianencyclopedia.ca/en/article/constitution-act-1982/.

[6] Patrick J. Monahan & Byron Shaw, Constitutional Law, 3d ed (Toronto: Irwin Law, 2013) at 5.

[7] Patrick J. Monahan & Byron Shaw, Constitutional Law at 6.




The Canadian Constitution And Environmental Law

Lesson Plan: Fundamentals of Environmental Law
Lesson Plan: Canadian Charter of Rights and Freedoms
Lesson Plan: Tragedy of the Commons
Lesson Plan: Climate Litigation

Curriculum Connections


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