Provincial constitutions of Canada
Each of the provinces of Canada is governed by a body of supreme laws called a constitution. Deriving from British constitutional theory and practice, they are not contained within a single document for each province but are instead made up of a body of different written laws and unwritten conventions. These derive from English common law, British statute law, Canadian federal statutes, the federal constitution, court decisions, treaties, and provincial statutes.[1][2]
Territories, unlike provinces, do not have constitutions sensu stricto, but are created by statutes of the federal parliament which can be amended at any time by a simple majority vote in parliament. Nevertheless, they broadly follow the Westminster-style of government like the provinces, with the important distinction that in the Northwest Territories and Nunavut there are no political parties and the legislatures operate by consensus. Local governments in Canada have no constitutional authority and derive their powers and institutions from provincial statutes. Likewise, Indian bands and other Indigenous governments are created by Indian Act or another piece of federal or provincial legislation, but there have been many movements to enshrine their existence constitutionally either within Canada's constitution (e.g. via the proposed amendments of 1992) or via modern-day treaties.
Colonial constitutions
The constitutional histories of the Eastern provinces are each longer than that of Canada itself, as each of them existed as separate British colonies, and before that as French colonies, prior to the union that joined them in 1867. For most of their histories as French colonies and initially as British colonies, the provinces were governed by absolutist governors appointed by the imperial center. A level of popular representation was added to their systems with the creation of colonial legislatures, beginning with the Nova Scotia House of Assembly in 1758. These early legislatures were consultative only, and the governor still appointed the ministers. The granting of responsible government, with ministers who could be replaced by the legislature and were usually members of the legislature, did not happen for another century, starting with Nova Scotia in 1848.
Implications of federal constitution for provinces
1867 settlement
The British law which created the Canadian federation contains three important sections that shape the institutions and powers of the provinces. First, the preamble states that the union was to be governed "with a Constitution similar in Principle to that of the United Kingdom". Second, Part V (sections 58 to 90) confirms that the pre-Confederation constitutions of Nova Scotia and New Brunswick should continue, and that the new provinces of Ontario and Quebec should be similar (they had lost their separate existences as "Upper" and "Lower Canada" in 1840 and became the Province of Canada). Third, Part VI entitled "Distribution of Legislative Powers" contains the sections which list the areas of exclusive jurisdiction for the federal (91) and provincial (92 and 93) governments, as well as areas of concurrent powers (95). It also allows the provinces to voluntarily harmonize their laws by delegating their powers to the federal parliament if they choose (94).
1982 amendments
The 1982 package of amendments constrained the powers of the provincial legislatures by subjecting them to more instances of judicial review on the grounds of violations of the new Canadian Charter of Rights and Freedoms or the recognition of Aboriginal rights in Section 35. However, provinces gained the power to make amendments to the national constitution as well as their own constitutions via one of five different amending formulae, notably via Section 45. They also gained a clarification and strengthening of their powers over natural resources by the insertion of Section 92A into the 1867 division of powers.
Changes since 1982
Since provinces have the right to amend their own internal composition at will, they do not need to explicitly invoke the powers under Section 45. Nevertheless, this was done on two occasions prior to the 2020s. In 1986 Nova Scotia did so when amending the House of Assembly Act and Alberta did in 1990 to enshrine the Metis settlements as constitutionally protected.[1] Starting in 2021 with Quebec's Bill 96 and again in 2022 with the Saskatchewan First Act, provinces invoked Section 45 in a novel way to assert the legal power for a province to change the text of a federal statute. Both laws assert that new text must be read into the Constitution Act, 1867. Quebec's Bill 96 inserts two clauses into Section 90 of the Constitution Act, 1867 stating that "Quebeckers form a nation" and that "French is the only official language of Quebec and the common language of the Quebec nation".[3] While the Saskatchewan First Act would add text to both the Saskatchewan Act and the Constitution Act, 1867.[3]
References
- ↑ 1.0 1.1 Cr, Erin; May 28, all Originally published on Policy Options; 2021. "What is a provincial constitution and how do we amend it?". Policy Options. Retrieved 2022-11-07.
- ↑ Doblanko, Tesia (August 4, 2022). "Provincial Constitutions: What Are They and How Do We Amend Them?". Centre for Constitutional Studies. Retrieved November 8, 2022.
- ↑ 3.0 3.1 Bowden, J.W.J. "The Section 45 Constitutional Amendment Becomes a Vehicle for Provincial Autonomism". Parliamentum.
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