Constitution Act, 1982
Born out of a desire on the part of the Trudeau government to patriate the Constitution of Canada from the United Kingdom, the Constitution Act, 1982 came into force on 17 April 1982. The Act forms a part of the Constitution of Canada and is itself comprised of 7 parts.
Constitution Act, 1982
Born out of a desire on the part of the Trudeau government to patriate the Constitution of Canada from the United Kingdom, the Constitution Act, 1982 came into force on 17 April 1982. The Act forms a part of the Constitution of Canada and is itself comprised of 7 parts. The first part is the Canadian Charter of Rights and Freedoms (the "Charter"). The Charter declares that Canadians have the following fundamental freedoms:
i) freedom of conscience and religion;
ii) freedom of thought, belief, opinion and expression;
iii) freedom of peaceful assembly, and;
iv) freedom of association.
The Charter also sets out several other rights:
i) each citizen has the right to vote;
ii) each citizen has the right to enter, remain in and leave Canada;
iii) everyone has the right to life, liberty and the security of the person and the right not to be deprived of those rights except in accordance with the principles of fundamental justice;
iv) everyone has the right to be secure against unreasonable search and seizure;
v) everyone has the right not to be arbitrarily detained;
vi) everyone, on arrest or detention, has the right to a lawyer and to be informed of the reasons for the detention;
vii) everyone has the right to be presumed innocent until proven guilty and to have a trial within a reasonable period of time, and;
viii) everyone has the right not to be subjected to any cruel and unusual punishment.
Under section 15 of the Charter, each individual is equal before and under the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The equality rights have been extended to categories of people not specifically named in section 15, such as non-citizens and common-law spouses. In some court decisions in various provinces homosexuality has been approved as a so-called analogous ground upon which to base equality rights and, in the near future, homosexuality may be entrenched nationwide as an analogous ground entitled to protection under section 15.
Under the Charter, English and French have equal status legally in Canada, and French or English regional linguistic minorities have the right to education in their mother language.
Section 33, the "notwithstanding clause," allows the Parliament of Canada and the provincial legislatures the option of declaring that a statute that has been found to be in violation of the Charter shall continue to operate notwithstanding sections 2 to 7 and 15 of the Charter.
Part 2 of the Act deals with the rights of aboriginal peoples, and recognizes and affirms existing treaties.
Part 5 of the Act creates a formula for the amendment of the Constitution of Canada, which is as follows:
i) resolutions of the House of Commons and the Senate, plus
ii) resolutions of the provincial legislatures of at least two-thirds of the provinces and which contain 50% of the population of all the provinces
are required to amend the Constitution of Canada.
P.W. Hogg, Constitutional Law in Canada, 4th ed. (1997); Patrick J. Monahan, Constitutional Law, 3d ed. (2006); The Hon. Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms, 4th ed. (2009); Hamish Stewart, Fundamental Justice (2012).