Конституция Канады: история и основы

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The Constitution of Canada is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non citizens in Canada. Its contents are an amalgamation of various codified acts, treaties between the Crown and Indigenous Peoples (both historical and modern), uncodified traditions and conventions. Canada is one of the oldest constitutional monarchies in the world. The Canadian constitution includes core written documents and provisions that are constitutionally entrenched, take precedence over all other laws and place substantive limits on government action; these include the Constitution Act, 1867 (formerly the British North America Act, 1867) and the Canadian Charter of Rights and Freedoms. The Constitution Act, 1867 provides for a constitution "similar in principle" to the largely unwritten constitution of the United Kingdom, recognizes Canada as a constitutional monarchy and federal state, and outlines the legal foundations of Canadian federalism. The Constitution of Canada includes written and unwritten components. The Supreme Court of Canada has held that this list is not exhaustive and that the Constitution of Canada includes a number of pre confederation acts and unwritten components as well. The Canadian constitution also includes the fundamental principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. The act renamed the northeasterly portion of the former French province of New France as Province of Quebec, roughly coextensive with the southern third of contemporary Quebec. The proclamation, which established an appointed colonial government, was the 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 (one of the grievances listed in the United States Declaration of Independence). Significantly, the Quebec Act also replaced French criminal law with the English common law system; but the French 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 Canadas, contributing to their re union as the Province of Canada in 1841. The British North America Act, 1867 established the Dominion of Canada as a federation of provinces. Initially, on 1 July 1867, four provinces entered into 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. Although listed, Newfoundland never ratified the statute so 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 with a requested exception—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 constitutional amendments when requested by the government of Canada. This was never anything but a rubber stamp. The patriation of the Canadian constitution was achieved in 1982 when the British parliament, with the request and assent of the Canadian parliament, passed the Canada Act 1982, which included in its schedules the Constitution Act, 1982. The United Kingdom thus renounced any remaining responsibility for, or jurisdiction over, Canada. In a formal ceremony on Parliament Hill in Ottawa, Queen Elizabeth II proclaimed the Constitution Act, 1982 into law on 17 April 1982. The Constitution Act, 1982, includes the Canadian Charter of Rights and Freedoms. Before the Charter, various statutes 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. The enactment of the Charter of Rights and Freedoms has fundamentally changed much of Canadian constitutional law. The act also codified many previously oral constitutional conventions and made amendment of the constitution in general significantly more difficult. Previously, the Canadian constitution could be formally amended by an act of the British parliament, or by informal agreement between the federal and provincial governments, or even simply by adoption as the custom of an oral convention or performance that shows precedential but unwritten tradition. Since the act, textual amendments must now conform to certain specified provisions in the written portion of the Canadian constitution.

This was an Act of the British parliament, originally called the British North America Act, 1867. It outlined Canada's system of government, which combines Britain's Westminster model of parliamentary government with the division of sovereignty (federalism). Although it is the first of 20 British North America Acts, it is the most famous as the primary document of Canadian Confederation. With the patriation of the Constitution in 1982, this Act was renamed Constitution Act, 1867. In recent years, the 1867 document has mainly served as the basis on which the division of powers between the provinces and the federal government is analyzed.

Endorsed by all provincial governments except that of Quebec, this was the formal Act of Parliament that effected Canada's full legislative independence from the United Kingdom. Part V of this act established an amending formula for the Canadian constitution, the lack of which (due to more than 50 years of disagreement between the federal and provincial governments) meant Canada's constitutional amendments still required enactment by the British parliament after Statute of Westminster in 1931. The Constitution Act, 1982 was enacted as a schedule to the Canada Act 1982, a British Act of Parliament which was introduced at the request of a joint address to Queen Elizabeth II by the Senate and House of Commons of Canada. The version of the Canada Act 1982 which is in force in Britain is in English only, but the version of the act in force in Canada is bilingual, English and French. In addition to enacting the Constitution Act, 1982, the Canada Act 1982 provides that no further British acts of Parliament will apply to Canada as part of its law, finalizing Canada's legislative independence.

As noted above, this is Part I of the Constitution Act, 1982. The Charter is the constitutional guarantee of the civil rights and liberties of every citizen in Canada, such as freedom of expression, of religion, and of mobility. Part II addresses the rights of Aboriginal peoples in Canada. Canada's constitution is composed of several individual statutes. There are three general methods by which a statute becomes entrenched in the Constitution:
Specific mention as a constitutional document in section 52(2) of the Constitution Act, 1982 (e. g., the Constitution Act, 1867). Constitutional entrenchment of an otherwise statutory English, British, or Canadian document because its (still in force) subject matter provisions are explicitly assigned to one of the methods of the amending formula (per the Constitution Act, 1982)—e. g., provisions with regard to the monarchy in the English Bill of Rights 1689 or the Act of Settlement 1701. English and British statutes are part of Canadian law because of the Colonial Laws Validity Act 1865; section 129 of the Constitution Act, 1867; and the Statute of Westminster 1931. If still at least partially unrepealed those laws then became entrenched when the amending formula was made part of the constitution. Reference by an entrenched document—e. g., the Preamble of the Constitution Act, 1867's entrenchment of written and unwritten principles from the constitution of the United Kingdom or the Constitution Act, 1982's reference to the Proclamation of 1763. Crucially, this includes Aboriginal rights and Crown treaties with particular First Nations (e. g., historic "numbered" treaties; modern land claims agreements).

Unlike in most federations, Canadian provinces do not have written provincial constitutions. Provincial constitutions are instead a combination of uncodified constitution, provisions of the Constitution of Canada, and provincial statutes. Overall structures of provincial governments (like the legislature and cabinet) are described in parts of the Constitution of Canada. Governmental structure of the original four provinces are described in Part V of the Constitution Act, 1867. The three colonies that joined Canada after Confederation had existing UK legislation which described their governmental structure, and this was affirmed in each colony's Terms of Union, which now form part of Canada's Constitution. The remaining three provinces were created by federal statute. Their constitutional structures are described in those statutes, which now form part of Canada's Constitution. All provinces have enacted legislation that establishes other rules for the structure of government. For example, every province (and territory) has an act governing elections to the legislature, and another governing procedure in the legislature. Two provinces have explicitly listed such acts as being part of their provincial constitution; see Constitution of Quebec and Constitution Act (British Columbia). However, these acts do not, generally, supersede other legislation and do not require special procedures to amend, and so they function as regular statutes rather than constitutional statutes. A small number of non constitutional provincial laws do supersede all other provincial legislation, as a constitution would. This is referred to as quasi constitutionality. Quasi constitutionality is often applied to human rights laws, allowing those laws to act as a de facto constitutional charter of rights. For example, laws preventing discrimination in employment, housing, and services have clauses making them quasi constitutional in ten of thirteen jurisdictions.

Section 45 of the Constitution Act, 1982 allows each province to amend its own constitution. This applies, for example, to provincial statute laws like Constitution of Quebec and Constitution Act (British Columbia). However, if the desired change would require an amendment to any documents that form part of the Constitution of Canada, it would require the consent of the Senate and House of Commons under section 43. This was done, for example, by the Constitution Amendment, 1998, when Newfoundland asked the federal government to amend the Terms of Union of Newfoundland to allow it to end denominational quotas for religion classes. A small number of statutes within provincial constitutions cannot be amended by a simple majority of the legislative assembly, despite section 45. For example, section 7 of the Constitution of Alberta Amendment Act, 1990 requires plebiscites of Métis settlement members before that Act can be amended. Courts have not yet ruled about whether this kind of language really would bind future legislatures, but it might do so if the higher bar was met when creating the law.

In 1983, Peter Greyson, an art student, entered Ottawa's National Archives (known today as Library and Archives Canada) and poured red paint mixed with glue over a copy of the proclamation of the 1982 constitutional amendment. He said he was displeased with the federal government's decision to allow United States missile testing in Canada and had wanted to "graphically illustrate to Canadians" how wrong he believed the government to be. Greyson was charged with public mischief and sentenced to 89 days in jail, 100 hours of community work, and two years of probation. A grapefruit sized stain remains on the original document; restoration specialists opted to leave most of the paint intact, fearing that removal attempts would only cause further damage.