Constitution Act, 1982

Introduction

The Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (UK), 1982, c. 11, represents the single most significant transformation of Canada’s constitutional architecture since Confederation. It achieved the patriation of the Canadian Constitution — the repatriation of full amending authority from the Parliament of the United Kingdom to Canada — and simultaneously entrenched the Canadian Charter of Rights and Freedoms, recognized Aboriginal and treaty rights, codified a domestic amending formula, and declared the Constitution to be the supreme law of Canada. Proclaimed in force by Queen Elizabeth II on April 17, 1982, it fundamentally altered the relationship between the state and the individual, and between the federal and provincial orders of government.

Patriation and the Patriation Reference

The process leading to the Constitution Act, 1982 was intensely political and legally contested. Prime Minister Pierre Trudeau’s government sought to patriate the Constitution with an entrenched Charter and an amending formula over the objection of several provinces. The reference questions posed to the Supreme Court of Canada produced the landmark Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753 (the Patriation Reference). The Court held that while a federal unilateral request to Westminster was strictly legal, it violated a constitutional convention requiring substantial provincial consent. The judgment is famous for distinguishing between the law of the Constitution (enforceable by courts) and constitutional conventions (politically binding but not legally enforceable). The Court found that by convention, the consent of a substantial number of provinces was required, though it declined to specify an exact number.

The November 1981 First Ministers’ Conference produced a political accord — the November Accord — in which nine provinces (all except Quebec) agreed to patriation with a modified Charter and amending formula. This “Kitchen Accord” remains contentious: Quebec’s exclusion led to a persistent constitutional grievance and Quebec’s refusal to formally assent to the Constitution Act, 1982. (In 2023, the Quebec National Assembly voted symbolically to reject the 1982 Accord, though this has no legal effect on the Constitution’s operation in Quebec.)

Part I: The Canadian Charter of Rights and Freedoms

Sections 1 to 34 of the Constitution Act, 1982 constitute the Canadian Charter of Rights and Freedoms, the primary constitutional rights instrument in Canada. The Charter protects fundamental freedoms (s. 2: conscience, expression, peaceful assembly, association), democratic rights (ss. 3–5: voting, candidacy, annual sittings), mobility rights (s. 6: entry, remain, move between provinces), legal rights (ss. 7–14: life, liberty, security of the person; protection against unreasonable search and seizure; rights on arrest and detention; fair trial rights; protection against self-incrimination; protection against cruel and unusual punishment), equality rights (s. 15: equality before and under the law, equal protection and benefit without discrimination), official languages of Canada (ss. 16–22), minority language education rights (s. 23), and remedies (s. 24: court-ordered remedies and exclusion of unconstitutionally obtained evidence). Section 1 permits only such “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” generating the Oakes test for justification. Section 33, the notwithstanding clause, permits Parliament or a legislature to declare that an Act operates notwithstanding certain Charter provisions for a renewable five-year period.

Part II: Rights of the Aboriginal Peoples of Canada

Section 35(1) provides that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Section 35(2) defines the Aboriginal peoples of Canada as including the Indian, Inuit, and Métis peoples. Section 35(3) clarifies that “treaty rights” includes rights existing by way of land claims agreements or that may be so acquired. Unlike Charter rights, s. 35 rights are not subject to s. 1’s reasonable limits analysis; however, the Supreme Court in R v. Sparrow, [1990] 1 SCR 1075 held that such rights may be infringed where the infringement is for a valid legislative purpose and is consistent with the Crown’s fiduciary duty to Indigenous peoples. Section 35 has generated an extensive body of jurisprudence governing Aboriginal title, the duty to consult and accommodate, and the interpretation of historic and modern treaties.

Part III: Equalization and Regional Disparities

Section 36(1) commits Parliament and the provincial legislatures to the principle of equalization — promoting equal opportunities for the well-being of Canadians, furthering economic development to reduce disparities, and providing essential public services of reasonable quality to all Canadians. Section 36(2) specifically commits Parliament and the government of Canada to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation. While s. 36 is not directly enforceable by courts, it provides constitutional foundation for the federal equalization program and normative guidance for fiscal federalism.

Part IV and IV.1: Constitutional Conferences

Sections 37 and 37.1 mandated constitutional conferences on Aboriginal and constitutional matters. These conferences, held between 1983 and 1987, sought to elaborate s. 35 rights but ultimately failed to produce agreement on a definition of Aboriginal self-government.

Part V: The Amending Formula

Sections 38 to 49 codify Canada’s domestic amending formula, ending the need for recourse to the UK Parliament. The general formula (s. 38, the “7/50” rule) requires resolutions of the Senate and House of Commons and of the legislative assemblies of at least two-thirds of the provinces representing at least 50% of the population of all provinces. The unanimous consent procedure (s. 41) applies to amendments concerning the monarchy, the right of a province to a specified number of MPs, the use of English or French (subject to s. 43), the Supreme Court of Canada, and the amending formula itself. Bilateral amendments (s. 43) permit amendments affecting one or more but not all provinces. Certain matters may be amended by the federal Parliament alone (s. 44) or provincial legislatures alone (s. 45).

Part VI and the Supremacy Clause

Section 52(1) declares the Constitution of Canada to be “the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This provision establishes the basis for constitutional judicial review and empowers courts to strike down legislation that violates the Constitution. Section 52(2) defines the Constitution of Canada as including the Constitution Act, 1982; the Constitution Act, 1867 and its amendments; and the various other Acts and orders referred to in the schedule.

Significance and Continuing Controversy

The Constitution Act, 1982 fundamentally transformed Canadian constitutionalism. The Charter empowered courts to review legislation for rights compliance, producing a dramatic expansion of judicial power and a corresponding cultural shift toward rights-based discourse. The amending formula enabled domestic constitutional change, though it has proven difficult to use for major reforms (the Meech Lake and Charlottetown Accords both failed). Quebec’s non-adherence to the 1982 settlement remains a politically salient grievance, though the Act applies to Quebec as a matter of law. The Constitution Act, 1982 continues to generate the most significant volume of Canadian constitutional litigation.