Are you wanting to learn about Constitutional law in Canada? They’re said to be “living” documents that make up the supreme law of the land, but understanding the Constitutions of both Canada and the United States is far from easy and there’s certainly no short explanation or simple answer to the question: what is Constitutional law?

The idea that Constitutions are “living” documents means they evolve and change over time, shaped by court rulings and hard-to-pass amendments while forming the foundation of the rule of law and public policy. While there are some sharp contrasts between the Constitutions of Canada as a Constitutional monarchy and the United States as a Constitutional federal republic, both spell out the bedrock of their respective democracies.

Rights and Freedoms of Citizens

From detailing the rights and freedoms of citizens to the separation of powers between the federal government and those of states and provinces and territories, Constitutional law encompasses the relationship between governments and citizens and public institutions.

They constrain governments from enacting laws that violate the core principles of the document, ensuring that citizens’ rights are not unlawfully trampled upon by a government gone rogue and running roughshod over Constitutional guarantees.

From freedom of speech, and freedom of religion, to freedom from unreasonable searches and seizures by police, Constitutional guarantees of the rights of citizens provide a means of resisting government overreach through court challenges and litigation. Indeed, many governments have tried passing legislation that is non-compliant with the Constitution only to get sent back to the drawing board by the courts.

In that sense, Constitutional law and Constitutions as authoritative documents themselves can be seen as both guiding lights and road maps through which governments and citizens navigate life in democratic societies.

Constitutional law in Canada

With its roots in British parliamentary traditions, Constitutional law in Canada is made up of much more than a single document. Instead, the Canadian Constitution Acts of 1867 and 1982 form the basis for a Nexus-like web of statutes, legislation, and unwritten conventions as well as common law developments through the country’s courts and provincial legislatures.

But before 1949, it was the British Judicial Committee of the Privy Council that served as Canada’s final court of appeal, until that duty was handed over to the Supreme Court of Canada. The decoupling of Canada’s judicial authority from the United Kingdom at that time was consistent with the country’s post-war growth and rebirth as a young and independent nation, rather than a dependent British colony.

Indeed, Canada’s Prime Minister in 1939 waited a week after Britain declared war on Germany after its invasion of Poland as an act of independence from its former colonial masters.

Executive and legislative branches

Upon confederation in 1867, establishing Canada as a Constitutional monarchy effectively freed the nation from rule by the British Crown, though the Queen still reigns as the country’s monarch with effectively no legislative power. As a parliamentary democracy, even with a Queen sitting on a far-off throne as a symbolic head of state, the power to make laws and public policy stands with Canada’s parliament.

The prime minister, on the other hand, is the country’s head of government where the power of the country’s executive and legislative branches falls on the prime minister and their respective cabinet. In the country’s bicameral legislative system, bills passed by Canada’s elected parliament are subject to an appointed Senate’s “sober second thought.”

The Canadian Senate’s utility as an appointed body full of political operatives and party insiders, for many years, has been the subject of intense criticism as an unelected group of patronage appointees wielding the power to alter the laws of the land.

The partisan nepotism that underlies senate appointments in Canada has also led to calls for senatorial elections, though changing the system so radically would require a Constitutional amendment requiring near-consensus of the provinces, a nearly impossible standard baked into the Canadian Constitution.

Canada’s elected Senate and Constitutional law

But even senators themselves have recognized the problem with Canada’s elected Senate as a body that lacks “political legitimacy” since it’s an appointed and unelected body. In February 1982, for example, Senator Duff Roblin made “The Case for an Elected Senate.” In that speech delivered on the Senate floor, Roblin referred to Canada’s Senate as, ideally, a “balance wheel of Confederation” when in reality, at least at the time, it was perceived as acting more like a “fifth wheel to the Constitution.”

By this, Roblin referred to the fact that appointed members of the Senate, being given the power to shape and make laws and legislation, is an idea “repugnant to modern perceptions of representative and parliamentary government.”

Even 40 years ago, Roblin recognized the problem with giving the second chamber “legislative authority without democratic responsibility.” So even though in theory the Senate has the authority to shape Canadian law, it doesn’t use that power in recognition of its own lack of “political legitimacy.”

Senators in Canada

While appointed Senators in Canada are tasked with representing and protecting various and disparate regional interests in a sparsely populated country like Canada, they don’t act as a challenge to the House of Commons “even when legitimate regional interests may be at risk.” The simple solution, Roblin stated, was to have senatorial elections.

Forty years later, that “simple” solution has yet to materialize even after multiple attempts. The failure to achieve Senate reform is, in part, because changing the Senate from an appointed to an elected body requires a level of political cooperation in Canada that’s nearly impossible to achieve.

To alter the “method of selecting Senators,” according to the Canadian Constitution, requires the agreement of at least seven provinces with half the country’s population, along with the Senate itself and the House of Commons.

As you can see, Constitutional law in Canada is more complex than most Canadians think.

Legislation passed by parliament

However, any piece of legislation passed by parliament still requires the Queen’s permission, or royal assent, which cannot be refused as a matter of convention. The Queen’s representatives in Canada, the governor-general at the federal level and lieutenant governors at the provincial level can technically deny permission or royal assent to a law passed by Canada’s parliament or a provincial legislature. But although it would be “legal” to do so, refusal of royal assent to a bill would go against the Canadian Constitutional convention.

As well, the governor-general used to have the power to delay giving assent to pass a bill or even disallow a federal bill’s passage, but that power was stripped from the governor-general back in 1930. Provincially, however, the power to disallow or reserve royal assent remained afterwards though it was rarely ever exercised, leading to one chief justice of the Supreme Court of Canada to refer to the power as “dormant if not dead.”

Court cases and the Charter of Rights and Freedoms

Canada’s Charter of Rights and Freedoms forms the basis for a host of major legal battles that have shaped Canadian public policy since confederation. Cases involving Constitutional questions can reverberate throughout the country for decades.

After the adoption of the Constitution and the Charter in 1982 under Pierre Trudeau, Canada’s courts soon found themselves inundated with cases raising fundamental questions of Canadian law under the new Constitutional regime.

The Supreme Court of Canada has been tasked with interpreting the Constitution and the Charter on a host of controversies that have ended up in the country’s highest court. Charter cases in the past have dealt with everything from search warrants to abortion, to French language rights and freedom of expression and speech for public advertisers, for example.

Reasonable and probable grounds

In Hunter et al. v. Southam Inc., the Supreme Court of Canada in 1984 found that police needed “reasonable and probable grounds” to conduct a search after investigators descended upon the offices of the Edmonton Journal and demanded access to every record the paper had without explanation. This ruling cemented Canadians’ rights against unreasonable search and seizure by law enforcement.

In Singh v. The Minister of Employment and Immigration, the court found that Singh and others had been denied “procedural fairness” in having their refugee claims rejected. The unfairness that ended up denying Singh’s fundamental rights involved the failure to inform the refugee claimants of the case against granting them protected status as refugees.

Constitutional law in Canada

In R v. Big M Drug Mart, a Calgary drug store was charged with violating the Lord’s Day Act for not closing on Sundays as required by the law at the time. The Supreme Court in 1985 found that the law unjustifiably imposed a Christian tradition of viewing Sundays as a day of rest on society as a whole. Religious freedom as guaranteed by the Charter means that governments can’t pass laws that force citizens to abide by one specific religion’s traditions.

In R v. Oakes, a man had been charged in Ontario with drug trafficking under the Narcotics Control Act. The Supreme Court, however, found that the act violated an accused person’s right to the presumption of innocence.

The act operated under the assumption that people caught with drugs were dealers, forcing them to prove their innocence after being charged with drug trafficking. This violated the right to be presumed innocent because it meant that prosecutors didn’t have to prove the accused’s guilt beyond a reasonable doubt, wrongfully flipping the script and putting the onus on a criminal defendant.

Canada’s criminal prohibition against abortions

In 1988, the case of R. v. Morgantaler sent shockwaves across the country when the Supreme Court of Canada axed the country’s criminal prohibition against abortions. While the Criminal Code of Canada didn’t outrightly outlaw abortions, it required women to get a certificate from a hospital to obtain one.

The Supreme Court, however, found that the requirement violated the Charter’s guarantee of “security of the person” for forcing women to carry a fetus to term despite the potential harm to their health.

A year later, the case of Andrews v. the Law Society of British Columbia involved a non-citizen of Canada making a bid to become a lawyer. The Supreme Court found that citizenship requirements were unjustified by treating Canadian citizens differently from non-citizens, leading to a crucial finding of the meaning of equality and equal treatment under the law as guaranteed by the Charter and Constitution.

Charter and Constitution

Several Charter cases have also shaped the country’s laws regarding freedom of expression and freedom of speech, testing a provision subjecting such freedoms to so-called “reasonable limits.”

In Irwin Toy Ltd. v. Quebec (Attorney General), the Supreme Court of Canada found that limiting a toy company’s advertising to children under the age of 13 was reasonably justified under the province’s consumer protection legislation. Despite finding that the company’s freedom of expression had been stifled, it was still allowed to market its products to parents rather than young, impressionable kids.

But in 1990, the Supreme Court again put reasonable limits on freedom of expression to the test in a case against an Alberta teacher named James Keegstra. In R. v. Keegstra, the court found that the teacher had violated hate speech laws by espousing hateful, antisemitic ideas to his students, including denying the Holocaust.

While the court found that Charter protections did extend to all forms of speech, the limits placed upon so-called hate speech directed at an “identifiable group” was a reasonable limit in a democratic society designed and built upon the ideals of multicultural equality and respect.

Legalizing same-sex marriage in Canada

In the late 1990s and early 2000s, the Supreme Court of Canada decided on several cases involving LGBTQ2 rights in the country. In 1998, the court affirmed that discrimination based on sexual orientation was indeed prohibited by the Charter in the case of Vriend v. Alberta, involving a librarian who was fired after being outed as gay.

A year later, the case of M v. H established the rights of same-sex partners under the family law legislation after the court found unequal treatment under the law for same-sex couples, paving the way for legalized same-sex marriage years later. It was in 2004 that the Canadian government sent a reference to the court to ensure that legislation legalizing same-sex marriage was Constitutional and charter compliant.

In 2000, the court found that a Vancouver bookstore that catered to the gay and lesbian community had been wrongfully found to have been importing “obscene” materials from the United States. In Little Sisters Book and Art Emporium v. Canada (Minister of Justice), the court found that customs officials had been applying a “discriminatory standard” which violated equality rights by treating the bookstores’ imported materials differently than other imports due to the subject matter and targeted audience.

Constitutional law in Canada

In the last two decades, meanwhile, other Charter-related court cases have dealt with everything from the rights of workers to collective bargaining and going on strike, to the rights of sex workers and drug users, as well as the legalization of medical assistance for dying.

Recently, however, notable and unsuccessful Constitutional challenges include a bid by a Vancouver doctor and private clinic owner to overturn provisions of the Medicare Protection Act in British Columbia.

Dr. Brian Day and the Cambie Surgeries Center claimed that the prohibition on allowing patients to seek out private care when public system wait times were too long was unconstitutional. He filed his challenge in British Columbia Supreme Court in 2009 and a years-long legal battle ensued.

Charter of Rights and Freedoms

The judge, in that case, found that the Medicare Protection Act’s provisions challenged by the private healthcare provider were indeed compliant with the Charter of Rights and Freedoms.

They not only deterred emerging private healthcare providers from trying to compete with the public system but also preserved and ensured “the sustainability of the universal public healthcare system” while also “ensuring access to necessary medical services is based on need and not the ability to pay.”

The COVID-19 pandemic also presented courts in Canada and elsewhere with novel cases challenging the Constitutionality of public health measures, such as limits on gathering sizes to limit and slow the spread of the virus. In March 2022, for example, a judge in Ontario dismissed a Constitutional challenge to public health restrictions launched by two churches in the province.

In that case, the court found that the restrictions did indeed infringe upon free assembly rights guaranteed by the Charter of Rights and Freedoms. However, despite the finding of infringement, the judge found the restrictions were “amply and demonstrably justified as reasonable limits in a free and democratic society.”

Canadian Constitutional Law Conclusion

Constitutional law, by any measure, encompasses the complex and sometimes controversial relationship between governments, citizens, and institutions nationwide. A Constitutional challenge launched on one side of the country can have implications for millions of Canadians and echo throughout generations.

The ability for citizens to go to court and challenge government actions that violate Constitutional guarantees can be both individual and societal in scope.

Whether it’s a church suing a government over public health measures limiting their ability to gather and worship, or a person wrongfully arrested and imprisoned by police, the Canadian Constitution and Charter of Rights and Freedoms hold up as the be-all-end-all documents outlining and protecting the rights of citizens and non-citizens alike on Canadian soil.

Constitutional law, in a way, can be seen as a connecting thread weaved through the fabric of a free and democratic society, and it’s up to the courts to uphold the Constitution and the rights it guarantees to ensure that thread doesn’t come loose and see society unravel into lawlessness and chaos.

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