Glossary of Canadian Constitutional Law Terms

A

Amending Formula — The procedure for amending the Constitution of Canada, codified in ss. 38–49 of the Constitution Act, 1982. Canada employs five amending formulas: the general formula (s. 38 — the 7/50 formula: resolutions of the Senate and House of Commons and of the legislative assemblies of at least seven provinces representing at least 50% of the population); the unanimity formula (s. 41 — requires consent of all provinces for amendments concerning the monarchy, the amending formula itself, the composition of the Supreme Court, and certain language rights); the bilateral formula (s. 43 — amendments affecting some but not all provinces); the unilateral federal formula (s. 44 — Parliament may amend provisions relating to the executive government, the Senate, and the House of Commons); and the unilateral provincial formula (s. 45 — provincial legislatures may amend their own constitutions).

Ancillary Powers Doctrine — A principle of constitutional interpretation whereby a law that is primarily valid under one head of power may validly affect matters falling outside that head of power if the incidental intrusion is rationally connected to the valid core. The doctrine was articulated in General Motors of Canada Ltd. v. City National Leasing (1989), where the SCC held that the federal Combines Investigation Act’s civil right of action was a valid exercise of the trade and commerce power, even though it touched on provincial property and civil rights.

C

Charter of Rights and Freedoms — Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (UK), 1982, c 11. The Charter entrenches fundamental freedoms (s. 2), democratic rights (ss. 3–5), mobility rights (s. 6), legal rights (ss. 7–14), equality rights (s. 15), official language rights (ss. 16–22), and minority language education rights (s. 23). Section 1 guarantees the rights subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” — the Oakes test (R v. Oakes (1986)). Section 24(1) empowers courts to grant remedies for Charter breaches; s. 24(2) governs the exclusion of evidence.

Constitution Act, 1867 — Originally enacted as the British North America Act, 1867 (UK), 30 & 31 Vict, c 3, the imperial statute that created the Dominion of Canada by uniting the provinces of Canada (Ontario and Quebec), Nova Scotia, and New Brunswick. It establishes the federal structure of Canada, distributing legislative authority between Parliament (s. 91) and the provincial legislatures (s. 92), creating the federal Parliament (ss. 17–52) and the executive, and providing for the judiciary (s. 96–101). Renamed the Constitution Act, 1867 by the Constitution Act, 1982, s. 53(1).

Constitution Act, 1982 — The foundational document of Canada’s modern constitutional order, enacted as Schedule B to the Canada Act 1982 (UK). It patriated the Canadian constitution (ending the UK Parliament’s authority over Canada), entrenched the Charter of Rights and Freedoms, recognized and affirmed existing Aboriginal and treaty rights (s. 35), and established the amending formula. The non obstante the preamble, the Act provides that the Constitution of Canada includes the Constitution Act, 1867, the Constitution Act, 1982, and all statutes and orders listed in the schedule.

Criminal Law Power — Section 91(27) of the Constitution Act, 1867 confers on the federal Parliament exclusive authority over “The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.” This power is the foundation of the federal Criminal Code and all federal criminal offences. In Reference re Firearms Act (Can.) (2000), the SCC confirmed that the criminal law power extends to prohibitions backed by penal sanctions directed at a legitimate public purpose.

D

Division of Powers — The distribution of legislative authority between the federal Parliament and the provincial legislatures, primarily set out in ss. 91 and 92 of the Constitution Act, 1867. Section 91 lists federal powers (including trade and commerce, criminal law, navigation and shipping, banking, copyright, and the residual power over peace, order, and good government). Section 92 lists provincial powers (including direct taxation within the province, property and civil rights, local works and undertakings, and matters of a local or private nature). The division is exclusive — each level of government may legislate only within its assigned sphere, though the double aspect doctrine permits both to legislate on different aspects of the same subject matter.

Double Aspect — A doctrine recognizing that a single subject matter may have both federal and provincial aspects, permitting both levels of government to legislate on the same physical subject from different constitutional perspectives. In Hodge v. The Queen (1883), the Privy Council held that “subjects which in one aspect and for one purpose fall within s. 92, may in another aspect and for another purpose fall within s. 91.” The double aspect doctrine is closely related to the pith and substance doctrine and operates to limit the exclusivity of the division of powers in practice.

I

Interjurisdictional Immunity — A constitutional doctrine that protects the core of a federal undertaking from the application of provincial laws, even if those laws are otherwise valid under the division of powers. Where a provincial law would impair the essential character or core of a federal matter — such as a federal undertaking (a bank, an airline, a railway), a federal work, or a federal power — the provincial law is read down to be inapplicable. The SCC narrowed the doctrine in Canadian Western Bank v. Alberta (2007) and Quebec (AG) v. Lacombe (2010), stating that it should be applied with restraint and only where prior authority has established a protected core.

L

Living Tree Doctrine — The principle that the Canadian Constitution must be interpreted in a broad and progressive manner, as “a living tree capable of growth and expansion within its natural limits.” Originating in the Privy Council’s decision in Edwards v. Canada (AG) (1930) (the Persons Case), which held that women were “persons” eligible for appointment to the Senate, the doctrine has been applied consistently by the SCC to ensure constitutional interpretation evolves with changing social values. In Reference re Same-Sex Marriage (2004), the Court invoked the living tree doctrine to uphold the federal Civil Marriage Act.

N

Notwithstanding Clause — Section 33 of the Charter of Rights and Freedoms, which permits Parliament or a provincial legislature to expressly declare that an Act or provision operates notwithstanding certain Charter rights (s. 2 — fundamental freedoms; ss. 7–14 — legal rights; s. 15 — equality rights). A declaration under s. 33 has a maximum duration of five years and may be re-enacted. The notwithstanding clause was a compromise essential to the 1981 constitutional accord. It has been invoked most notably by Quebec following the Ford v. Quebec (AG) (1988) decision on commercial signage, and by Alberta, Saskatchewan, and Ontario in various contexts.

P

Paramountcy — The constitutional principle that where valid federal and provincial laws conflict, the federal law prevails and the provincial law is rendered inoperative to the extent of the conflict. The doctrine is grounded in s. 52(1) of the Constitution Act, 1982 (the supremacy clause) and the nature of federalism. Conflict arises where compliance with both laws is impossible, or where the provincial law frustrates the purpose of the federal law. In Rothmans, Benson & Hedges Inc. v. Saskatchewan (2005), the SCC clarified that the purpose-frustration branch of paramountcy requires a showing that the provincial law “frustrates the purpose” of the federal enactment.

Peace, Order, and Good Government (POGG) — The federal residual power under the opening words of s. 91 of the Constitution Act, 1867, authorizing Parliament to legislate for “the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.” The POGG power has three branches: the gap branch (filling lacunae in the division of powers), the national concern branch (matters of national importance transcending provincial boundaries — applied in R v. Crown Zellerbach Canada Ltd. (1988) to marine pollution), and the emergency branch (temporary legislation during crisis — Reference re Anti-Inflation Act (1976)). The national concern branch requires that a matter possess “singleness, distinctiveness, and indivisibility” such that it would be impaired if not addressed nationally.

Pith and Substance Doctrine — The primary analytical tool for determining whether a law falls within the jurisdiction of the enacting legislature. The court examines the purpose (the legislative objective, determined from the law’s text, context, and parliamentary history) and the effect (how the law operates in practice) of the challenged enactment. If the pith and substance of the law falls within a head of power assigned to the enacting legislature, the law is intra vires even if it has incidental effects on matters outside that legislature’s jurisdiction. See Reference re Firearms Act (Can.) (2000) and R. v. Morgentaler (1993).

Property and Civil Rights — Section 92(13) of the Constitution Act, 1867, assigning to provincial legislatures exclusive authority over “Property and Civil Rights in the Province.” This is the broadest provincial head of power, encompassing the regulation of contracts, torts, property ownership, secured transactions, labour relations (subject to the federal power over interprovincial undertakings), consumer protection, and most commercial activity. Its breadth has been the subject of extensive judicial interpretation, particularly in delimiting the boundary between federal trade and commerce power and provincial authority over civil rights.

R

Reference Question — A procedure permitting the federal or a provincial government to refer a question of law or fact to a court of appeal or the Supreme Court of Canada for an advisory opinion. Governed by s. 53 of the Supreme Court Act (federal references) and provincial Constitutional Questions Acts, reference questions allow governments to obtain judicial guidance on constitutional validity, statutory interpretation, or factual matters before legislation is enacted or before litigation arises. The SCC’s reference opinions, though technically advisory, are treated as authoritative. Notable references include the Reference re Secession of Quebec (1998), the Reference re Same-Sex Marriage (2004), and the Reference re Senate Reform (2014).

U

Unwritten Constitutional Principles — Fundamental principles that, though not explicitly codified, form part of the Constitution of Canada and may be used to inform constitutional interpretation and, in rare cases, to invalidate legislation or executive action. In the Reference re Secession of Quebec (1998), the SCC identified four principles: federalism (the division of powers between federal and provincial governments); democracy (government by the will of the people); constitutionalism and the rule of law (the supremacy of the constitution and the requirement that government action be legally authorized); and protection of minorities (the commitment to protecting minority groups within the federation). In Reference re Manitoba Language Rights (1985), the Court held that the rule of law required Manitoba’s unilingual laws to be temporarily valid despite their constitutional infirmity. Unwritten principles have been applied sparingly but with significant effect in cases concerning the appointment of judges (Reference re Remuneration of Judges of the Provincial Court (PEI) (1997)) and the principle of judicial independence.