What is a constitution?

A constitution is the supreme law of the land. It takes precedence over all other laws in the country. A constitution describes how a country governs itself. It contains rules or principles which tell the government what it can or cannot do. If the government makes a law that contradicts the constitution, a court can tell the government that the law is ‘unconstitutional’ and therefore that it has no effect. A constitution can also guarantee rights and freedoms for citizens. For example, in Canada, certain rights and freedoms are protected by the Canadian Charter of Rights and Freedoms, which is part of the Constitution. In this way, a constitution reflects a nation’s values. It has been described as “a mirror reflecting the national soul”.[1]

Constitutions come in different shapes and sizes. Some are entirely written (like the Constitution of the United States of America), and some are not (like the Constitution of the United Kingdom). Some are partly written and partly unwritten (like Canada’s Constitution). Some constitutions change often, and some stay very stable. There are good reasons why it should be difficult for a country to change its constitution. Because Canada’s Constitution is the country’s supreme law, changing it is a very serious matter. If a government could easily change the constitution, there is the danger that changes could be made that would benefit the government’s short-term interest at the expense of the principles on which it was founded. For example, changing the constitution to limit citizen’s freedom of expression may help a government silence criticism, but this is a freedom that most Canadians feel is in the country’s best long-term interest.

What is Canada’s Constitution?

This question does not have a clear answer. Canada’s Constitution is partly written, and partly unwritten.

Written parts

Constitution Acts, 1867 to 1982

An important written part of Canada’s Constitution is the Constitution Act, 1867. The Constitution Act, 1867, which was passed by the British Parliament, created the Dominion of Canada. It describes the basic structure of Canada’s government. Among other things, the Constitution Act, 1867 creates provincial legislatures, the Senate, and the courts. It also describes how the federal and provincial governments divide their powers. For example, only the federal government has the power to make laws about crimes, and only the provincial governments can make laws about education.

The Constitution Act, 1982 was a major addition to the Constitution. Until 1982, the British Parliament had the power to control Canada’s Constitution. However, the federal and provincial governments patriated the Constitution in 1982. This means that the British Parliament gave Canada full control over its Constitution. Even though Canada patriated its Constitution in 1982, the Constitution Act, 1867 remains in full force.

The Constitution Act, 1982 has several parts. It includes the Canadian Charter of Rights and Freedoms. It protects the rights of Aboriginal peoples. It affirms that the Constitution is the supreme law of Canada, and that courts can “strike down” laws which are unconstitutional. It also describes the rules for changing the Constitution. These rules make it hard to change the Constitution because most provinces need to agree on important changes, and provinces often disagree on big issues.

The 1867 and 1982 Acts are probably the most well-known written parts of the Constitution. However, there are other British and Canadian laws which are also part of the Constitution. For example, the laws adding more provinces to Canada are constitutional documents. Older documents, like ancient treaties, royal proclamations, and even some British laws from the 18th century are considered part of the Constitution.

Unwritten parts

Canada’s Constitution is partly unwritten. How is that possible? This is possible because the Constitution is “similar in Principle to that of the United Kingdom” which is completely unwritten. The Constitution Act, 1867 states that the Constitution is based on the Constitution of the United Kingdom, which contains unwritten principles and conventions. Courts are responsible for interpreting the unwritten elements. The Supreme Court of Canada has said that unwritten principles are “assumptions upon which the text is based” and understood to be a part of the Constitution even though they are not written in the text.[2] In that sense, the unwritten principles were always there, and the courts are merely describing them.

Some of these unwritten parts are called unwritten principles. These principles do not stand alone as rules. Instead, they “breathe life” into the Constitution and fill in some of the “gaps” in the text. For example, democracy is an important unwritten principle of the Constitution.[3] Courts use this principle as a tool in interpreting the Constitution. Democracy, in part, means that legislatures are elected by popular vote and that citizens have the right to vote.[4] The principle of democracy includes respect for human dignity, justice and equality, diversity of beliefs, and the participation of individuals in society.[5] When courts make decisions based on the Constitution, they can use democratic principles to guide their decisions.

Constitutional conventions are also unwritten. These are political rules, not legal rules. They are not found anywhere in the Constitution. They come from the practices of government officials. Politicians and government officials who do not follow them are not acting illegally, nor can courts enforce them. However, they are part of Canada’s political fabric, and a part of the Constitution. For example, the Constitution states that Royal Assent is required before any bill becomes law. However, it is a constitutional convention that the Governor General cannot use his or her discretion to refuse to give Royal Assent to a bill after it has been passed by the House of Commons and the Senate.[6]

Canada’s Evolving Constitution

Even though parts of the Constitution are centuries old, it has been referred to as a “living tree” because its meaning can evolve over time as society changes.[7] The Supreme Court of Canada has said that “the Constitution must be viewed as a ‘living tree capable of growth and expansion within its natural limits’”.[8]This metaphor is the way that courts in Canada should interpret the Constitution, “ensuring that Confederation can be adapted to new social realities”.

The Constitution may have meant one thing in 1867, but it could mean something different today. For example, the Constitution since 1867 has said that the federal government can make laws about marriage. In 1867, the meaning of marriage was limited to being between a man and a woman. If the government had tried to change the definition of marriage, it probably would have been unconstitutional. However, in 2004, the Supreme Court of Canada said that the government was allowed to make laws about same-sex marriage.[9] The Constitution by that point had evolved to reflect society’s values.

In contrast with how Canadian courts should interpret the Constitution, some judges in the United States prefer to interpret the American Constitution by what they thought it meant when it was first written, or by how other people living at the time would have interpreted it.

Where did Canada’s Constitution come from?

Canada’s Constitution was created by the United Kingdom because Canada was originally a colony of the UK. The Constitution Act, 1867 created the federal system of government. Canada could not change or add to this. The Constitution at that point also included older documents like the Treaty of Paris (1763)and the Quebec Act (1774).

After 1867, the Constitution began to evolve as the courts interpreted it. Until 1975, it was occasionally amended as Parliament grew and more provinces were added.

By the early 1980s, politicians decided it was time to patriate the Constitution. They wanted to have full control over it without having to ask the British Parliament for changes. What they needed was a formula or a process that would allow them to make changes to the Constitution that the federal and provincial governments could all agree to. Coming up with an amending formula that they could all agree with took many years. Finally, in November, 1981 the federal and provincial governments agreed to a formula. As a result, the British Parliament passed the Canada Act 1982, giving Canada the power to control its Constitution. This Act included the Constitution Act, 1982, which contains the Canadian Charter of Rights and Freedoms. Canada’s Constitution was now truly its own. After 1982, the federal and provincial governments could use the amending formula to make their own changes.[10]

[1] Peter W Hogg, Constitutional Law of Canada, 4th ed (Scarborough: Carswell, 1997) at 3.

[2] Reference re Secession of Quebec, [1998] 2 SCR 217 at para 49.

[3] Ibid, at para 32.

[4] Ibid, at para 65.

[5] R v Oakes, [1986] 1 SCR 103, at 136.

[6] Élise Hurtubise-Loranger, “Constitutional Conventions” (11 July 2006), online: Library of Parliament <http://www.parl.gc.ca/Content/LOP/TeachersInstitute/ConstitutionalConventions.pdf>.

[7] Edwards v Canada (Attorney General), [1920] AC 123, 1 DLR 98 (PC).

[8] Reference re Securities Act, 2011 SCC 66 at para 56.

[9] Reference re Same-Sex Marriage, 2004 SCC 79.

[10] Constitution Act, 1982, sections 35.1, 38-49.

What is the Canadian Charter of Rights and Freedoms?

The Canadian Charter of Rights and Freedoms (or Charter for short) is a part of the Canadian Constitution. It became part of the Constitution in 1982.[1] The Charter lists the fundamental rights and freedoms that Canadians have decided are important and that must therefore be protected and guaranteed in Canadian society. Some of these include, for example, the right to a fair trial and the right to be free from unlawful search and seizure. Freedoms that Canadians can enjoy include freedom of expression and freedom of religion.

There are other laws in Canada that give people rights and freedoms. However, the Charter is the only one that is part of the Constitution, and that makes it special. First, since it is part of the supreme law of Canada, all laws and government actions must comply with the Charter. In other words, the Charter always comes first. For example, if the government passes a law or behaves in a way that interferes with a person’s right to a fair trial, a court can strike that law down. Second, the Charter can only be changed by using the amending formula, which is the formula in the Constitution that describes how changes to the Constitution are to be made. Making a change using the amending formula is very difficult; there has never been a formal amendment made to the Charter.

Those special features make the rights and freedoms in the Charter very important and fundamental in Canada. There are seven groups of rights and freedoms:

1) Fundamental Freedoms: including the freedoms of religion, conscience, expression, and peaceful assembly;

2) Democratic Rights: such as the right to vote;

3) Mobility Rights,

4) Legal Rights,

5) Equality Rights,

6) Language Rights, and

7) Minority Language Education Rights.

The full text of the Canadian Charter of Rights and Freedoms can be found here.

How are Charter rights protected?

Although the Charter protects the rights and freedoms of people in Canada, the Charter only protects those rights and freedoms from the governments in Canada. Some rights also only apply to Canadian citizens while other rights can apply to anyone in Canada.

Most of the Charter rights are “negative” rights. This means that these rights are violated whenever the government takes action that interferes with them. For example, freedom of religion is protected by the government leaving people to practice religion in their own way. It is violated when the government does something that threatens their practice of religion. Negative rights restrain and limit what the government can do.

Some of the Charter rights are “positive”. This means that these rights are violated when the government does not take the action they are supposed to. For example, minority language education rights require the government to provide French language schools in areas where there are enough people who speak French.[2] Those rights are violated when the government does not provide those schools. Positive rights give the government extra responsibilities.

The courts in Canada are the guardians of the Charter. When someone believes that a Charter right is violated, he or she can go to court where the judge will decide what to do. The judge first needs to decide whether the right was actually violated. If the right was violated, the Court can order the government to take an action that is appropriate and just. This action can include giving the person money, ordering the government to do something differently, or even changing the law.

How are Charter rights limited?

No right is absolute in Canada. For example, the freedom of expression in Section 2 of the Charter does not let a person publish hate speech.[3] The people who wrote the Charter wanted to make sure that there would be a balance between an individual’s rights and the greater good of society. They made sure that there are some limits on Charter rights.

First, Charter rights do not cover everything. The right to equal benefit of the law in Section 15 does not mean that everyone must be treated completely equally.[4] If this were the case, the government might have to pay everyone Old Age Security no matter his or her age. To avoid this, the Courts developed guidelines that explain when a Charter right is actually violated.

Second, even if a Charter right is violated, the government may be allowed to do so in certain circumstances. Section 1 of the Charter says that all of the Charter rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[5]The Courts developed a test, called the Oakes test, which the government must pass in order to justify violating a particular right. If the government passes this test, the violation of the right is justified and allowed.

The other way rights can be limited is by the government using the “notwithstanding” clause in the Charter. Section 33 of the Charter allows either a provincial or the federal government to declare that a law it makes does not have to comply with certain Charter rights.[6] This has been done very rarely by governments. If it is used, this exemption lasts only for five years, and then must be voted on again to continue.

[1]Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] <http://laws-lois.justice.gc.ca/eng/Const/page-15.html>

[2]Canadian Charter, supra note 1, s 23.

[3]Canadian Charter, supra note 1, s 2.

[4]Canadian Charter, supra note 1, s 15.

[5]Canadian Charter, supra note 1, s 1.

[6]Canadian Charter, supra note 1, s 33.

What is federalism?

A federal style of government is one that has two separate levels of government: a central government and several regional governments. For example, Canada has a federal style of government with a federal government and provincial governments. Each level of government has specific powers and responsibilities that only it can use and these are described in the Constitution. Neither level of government is in charge of the other. Each government can use their own powers without interference from other governments.

Canada’s federal structure includes the national (or, federal) government, and ten provincial and three territorial governments. The Canadian Constitution tells us which level of government has which powers: Section 91 of the Constitution Act, 1867 lists the powers the federal government has.[1] Section 92 lists the powers that provincial and territorial governments have.[2] The powers listed in these two sections are not the only governing powers for each level of government in the Constitution, but they are the most common ones.

What powers does the federal government have?

Peace Order and Good Government: The writers of the Constitution wanted a more centralized government. One of the ways they did this was to say that the federal government has the power to make laws for the “Peace, Order, and good Government of Canada”.[3] Commonly referred to as “the POGG power”, this power is broad and includes three “branches”:

  1. The “gap” branch refers to powers not specifically mentioned in the Constitution, like air traffic.
  2. The “emergency power” branch lets the federal government make laws that it is normally not allowed to in times of great emergency, like during a war.
  3. The “national concern” branch lets the federal government make laws on matters that are important for the entire country.

Regulation of trade and commerce: The federal government has the power to regulate trade and commerce.[4] Although this seems like it could include a lot, courts have said that this power only allows for the regulation of interprovincial or international trade and the general regulation of trade as a whole. As a result, there are many specific industries the federal government cannot regulate, like dairy products or beer.[5] However, the federal government can regulate industries that fall under one of their heads of powers, like banking.[6]

Criminal Law: The federal government has the power to make criminal law.[7] This explains why criminal laws are the same across Canada. The courts have said that a valid criminal law must have a penalty, a prohibition, and a valid public purpose. However, it is not always easy to define a crime. Offences like speeding or jaywalking are not crimes, which is why provinces can make laws about them. Provincial offences typically are not as serious as crimes and usually do not involve going to jail.

What powers do provincial governments have?

Property and civil rights: Provincial governments have power over property and civil rights.[8] This includes almost everything to do with property and civil law, including real estate, businesses, trade, contracts, employment, wills, and civil claims. The only limits are the things that are under the federal regulation of trade and commerce or other specific federal power.

Matters of a merely local or private nature: Provincial governments can make laws about anything that is of a local or private nature within the province.[9] This is the provincial catch-all power and includes anything not listed in the Constitution but that should be dealt with locally. Examples are laws about traffic, littering, and keeping the peace.

Municipalities: Provincial governments can make laws concerning municipal institutions in the province.[10] Municipal governments are not really mentioned anywhere else in the Constitution. That means that every municipal government is made by the provincial government and dependent on them for their power. The provincial governments allow the municipal governments to use some of their powers for them, and that is how local bylaws are passed. Municipal bylaws must therefore be consistent with both the limits imposed by the province and by the Constitution. However, since municipalities continue to play an increasing role in delivering services to citizens, many municipalities are seeking more powers from provinces.

Non-renewable natural resources: Provincial governments have power over exploration, development, conservation and management of resources within the province.[11] This includes forestry, mines, fish, natural gas, and oil. Provinces can make laws for exporting these resources to other provinces, but not internationally.

Other features of Canadian federalism

Courts have found that drawing clear lines between federal and provincial powers is difficult. They have recognized that some things have a “double aspect”. This means that the federal and provincial governments can both pass laws on some issues. For example, the province can make laws about dangerous driving because traffic is a matter of a merely local nature. However, the federal government can also pass laws against dangerous driving using the criminal law power. That is why a dangerous driver can be charged with a provincial offence and a federal crime at the same time. Courts have found a “double aspect” also exists in matters like health and the environment.

Because some issues have a double aspect, one government acting alone cannot always accomplish everything it wants to. Courts have strongly encouraged both levels of government to work together in “cooperative federalism”. If the federal and provincial governments work together, they can often accomplish more than acting alone. An example would be the creation of a comprehensive marketing plan for something like eggs, where the provincial government regulates the local production and the federal government regulates the export and trade.[12] However, since governments do not always agree, cooperation sometimes involves a lot of negotiation.

An important feature of Canada’s federalism is the federal government’s spending power. The federal government typically can raise more money than provincial governments because it has the power to tax (section 92(3))[13]. One way that the federal government cooperates with provincial governments is by offering them money in return for passing certain laws. By doing this, the federal government can indirectly influence matters over which it otherwise has no power. For example, this is how Canada’s public health care system works. The federal government gives money to the provinces in exchange for provinces making sure that health care is free to the public.

[1]The Constitution Act, 1867, 30 & 31 Vict, c 3, s 91, http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec91 [The Constitution Act, 1867].

[5]Reference re Validity of Section 5 (a) Dairy Industry Act, [1949] SCR 1, http://canlii.ca/en/ca/scc/doc/1948/1948canlii2/1948canlii2.html; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 SCR 914, http://canlii.ca/en/ca/scc/doc/1979/1979canlii190/1979canlii190.html.

[12]Reference re Agricultural Products Marketing, [1978] 2 SCR 1198, http://canlii.ca/en/ca/scc/doc/1978/1978canlii10/1978canlii10.html.

[13]The Constitution Act, 1867, s 92(3), http://www.canlii.org/en/ca/laws/stat/30—31-vict-c-3/#sec92.

Aboriginal Rights

Section 35

Section 35 of the Constitution Act, 1982 “recognizes and affirms” the existing Aboriginal and treaty rights of Aboriginal peoples, that is, Indian, Inuit and Métis peoples.[1] Determining what those rights are has been the work of courts across Canada since 1982.

Before 1982, the Canada’s Constitution did not protect Aboriginal and treaty rights. Aboriginal and treaty rights were only recognized in through decisions made by the courts.[2] Section 35, which was added to the Constitution in 1982, is a tool that Indigenous groups can now use to enforce their rights in the courts when they are infringed by government.

It is important to emphasize that section 35 of the Constitution Act, 1982 only protects Aboriginal rights that existed at the time it came into effect.[3] Hence the term, ‘existing’ Aboriginal and treaty rights. Prior to 1982, the federal government could extinguish an Aboriginal right through legislation or through signing treaties. If the right was extinguished prior to 1982, section 35 cannot revive the right.[4] To recognize a right as being extinguished, the government must have used clear and plain language to do so. If a right was merely regulated but not removed entirely, then it was not extinguished.[5] For example, in the case R v Sparrow (1990) the Supreme Court held that the Fisheries Act and its accompanying regulations, which required fishermen to have permits and limited the methods by which a fisherman could fish, among other things, did not extinguish the Aboriginal Right of the Musqueam Band to fish.[6]

Since 1982, the federal government can no longer extinguish Aboriginal rights.[7]

Section 35 recognizes two types of rights: Aboriginal rights and treaty rights. Aboriginal rights are rights to engage in specific activities in certain places, like hunt or engage in a ceremony, or to occupy land.[8]Treaty rights come from agreements between Indigenous groups and the Crown.[9]

Enshrining existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982 has not made them absolute. The Supreme Court established a test in the R v Sparrow (1990) case for determining when Aboriginal (or treaty) rights can be infringed by the government. Where the government has, or should have, knowledge of an existing or yet-to-be-proven Aboriginal or treaty right, the government has a duty to consult the Indigenous group whose rights may be impacted.[10] If the government does not fulfil its duty to consult before it infringes an Aboriginal or treaty right, the court can order a variety of remedies such as reversing approval for a project until proper consultation has occurred, or ordering money be paid to the Indigenous group as compensation.

Aboriginal Rights

Aboriginal rights referred to in section 35 include Aboriginal title as well as rights to engage in particular activities. In order for an Aboriginal group to have the court recognize something as an Aboriginal right using section 35, the group must show that certain criteria, as defined by the courts, are met.

Aboriginal Title

The Court has described Aboriginal title as a right to occupy and possess land.[11] However, the Crown retains underlying title to the land[12] and Aboriginal title land can only be sold to the Crown.[13]According to the Royal Proclamation of 1763, these restrictions on title were created so that the Crown could act as an interlocutor between Indigenous groups and settlers. The Proclamation’s stated goal was to prevent settlers from exploiting
Indigenous groups.[14]

The definition of Aboriginal title has evolved since its recognition. In the case of Calder v British Columbia(1973), the Supreme Court described the nature of Aboriginal title as being based on the historic occupation and possession of the land by Indigenous people.[15] After Aboriginal and treaty rights were enshrined in the Constitution, the Supreme Court further elaborated on the features of Aboriginal title in the case Delgamuukw v British Columbia (1997). Chief Justice Lamer, writing for the majority of the Justices, described Aboriginal title as having the following features:

  • Aboriginal title land is held communally;[16] and
  • the land is subject to a limit. Aboriginal title land cannot be used in a manner that is irreconcilable with the nature of the Aboriginal group’s attachment to the land (i.e. one cannot strip mine in a hunting area),[17] but can otherwise use the land for whatever purpose the group chooses.[18]

In the Delgamuukw case, the Supreme Court also articulated the test for establishing Aboriginal title. To prove that an Aboriginal group has a title claim to land, the group must show that occupation of that land was exclusive at the time of sovereignty (1867, when Canada became a country).[19] Exclusive occupation does not mean that land cannot have been shared. Indigenous groups can make joint claims if they occupied the land together and excluded all others. Or, if a group historically permitted another to share their resources, this could be evidence that the group considered itself to have the right to decide who could come on to the land.[20]

The first and only successful Aboriginal title claim was made by the Tsilhqot’in First Nation, a group of six semi-nomadic bands that claimed title over 4400 square kilometers of land to the south-west of Williams Lake in British Columbia (the area over which Aboriginal title was successfully made out is about 1,700 square kilometres). The Supreme Court clarified in this case in 2014 what factors need to be in place to establish title.

The Supreme Court decided that traveling and living in multiple locations at different points in the year could satisfy the “exclusive occupation” requirement for making an Aboriginal title claim. To found a claim, the Court ruled there must be an historical intention to occupy the land, communicated to other groups through action or law/custom,[21] combined with actual regular use.[22] The Court said that In determining whether occupation is sufficiently intense, courts should take into account the uses to which the relevant land can be put, as well as the technological capacity and mode of life of the group historically.[23] In this case, the land was quite barren and could not have easily supported a larger population.

Aboriginal title is the most well-developed right recognized in section 35 as an Aboriginal right.

Rights to Activities

Aboriginal rights can arise from the occupation of land, but also from the prior social organization and distinctive cultures of Indigenous peoples on the land. Aboriginal rights are elements of practices, customs, or traditions integral to the distinctive culture of an Aboriginal group.[24] In order for a court to recognize an Aboriginal right, the practice, custom, or tradition must have existed before European contact.[25]

Although a practice, custom, or tradition must predate European contact to receive constitutional recognition, the courts have said that a practice, custom, or tradition can evolve into a modern form.[26]For example, if the practice is to fish, and before European contact fishing was done with simple hooks or nets, people today may use powered fishing boats and modern fishing equipment.

The Supreme Court makes a distinction between Aboriginal title and Aboriginal rights. Aboriginal title is a specific type of Aboriginal right. Therefore, even where a title claim cannot be made out (for example, if occupation was not exclusive), an Aboriginal rights claim to engage in a practice or activity (such as hunting and fishing) can be made out on the land in question, resulting in the right receiving the protection of section 35.[27]

Treaty Rights

Treaty rights are those rights listed in formal agreements between an Indigenous group or groups and the Crown. Beginning in the early 1700s, the British Crown, and later Canada, formed treaties with Indigenous peoples.[28] Under these treaties, the government took control of large areas of land and, in exchange, promised to provide certain benefits. The promised benefits vary from treaty to treaty, but commonly include reserve lands, fixed yearly payments, and rights to hunt and fish. Many of the numbered treaties (Treaties 1-11 signed between 1871 and 1921) also include the provision of agricultural implements, livestock, ammunition, and clothing.[29]

Non-fulfillment of treaty promises has been the subject of many court cases.[30] There has also been debate over how parties have understood the purpose of the treaties.[31]

The Supreme Court of Canada has said that courts should interpret treaties liberally. Anything that is unclear in the treaty should be interpreted in a way favourable to the Indigenous group.[32] In the case of R v Badger (1996) the Court held that oral promises made at the time of the treaty signing were to be considered in interpreting it.[33] The Court said in the Ermineskin Indian Band and Nation v Canada(2009) case that it would be “unconscionable” to ignore oral terms of a treaty.[34]

The Supreme Court has further held that terms that do not appear in the written treaty may be “read in.” “Reading in” is a practice where the Court decides that something not written down should have been included in the written treaty, so the Court reads the treaty as if the term is there.

In the case of R v Marshall (1999) for example, the 1760 Treaty of Peace and Friendship between the British Crown and the Mi’kmaq was interpreted to include an implied right to hunt, even though that was not made explicit in the document. The Treaty said that the Indians agreed to trade only at the government “truck-house” – a type of trading post. The Court referred to a document that described a meeting between the Crown and a different Indigenous group in the same area that had taken place a few weeks before the Treaty was signed which described a promise by the government to establish a truck house at a particular location, “for furnishing them with necessaries, in Exchange for their Peltry.”[35] In order to trade for necessities, the Court held, there must be an implied term that there is a right to hunt for a meager living.[36] The Court read in this right to the Peace and Friendship Treaty between the British Crown and the Mi’kmaq because similar promises likely would have been made to both the Mi’kmaq and the group who the promise is recorded as having been made to.[37]

The Court uses these rules of interpretation because of a principle called “Honour of the Crown” which means that the Crown must act honourably in relation to Indigenous peoples and the commitments it has to them.[38] The Supreme Court has said that treaties should be interpreted liberally because it should be assumed that the Crown was acting honourably when making these treaties and was not engaged in “sharp dealing.”[39]

Therefore, when an Aboriginal group makes a specific claim regarding an unfulfilled treaty promise using section 35 of the Constitution, there is much room for the courts to recognize rights beyond the written words of the treaty.

Infringing Aboriginal or Treaty Rights, and the Duty to Consult

Enshrining Aboriginal and treaty rights in section 35 of the Constitution has not made Aboriginal and treaty rights absolute. Since section 35 is not a part of the Charter of Rights and Freedoms, it is not subject to section 1 of the Charter, a section that allows the courts to balance government justifications for infringement of rights against the severity of the infringement. The Supreme Court has therefore established a unique test in the Sparrow case for determining when Aboriginal or treaty rights can be infringed by the government.

First, government action that infringes an Aboriginal or treaty right must be done for a compelling and substantial objective that furthers the goal of reconciling the rights of Indigenous peoples (Aboriginal or treaty) with the assertion of Crown sovereignty.[40] These purposes include conservation, and economic and regional fairness.[41]

If the purpose of the law passes the test – that is, if it furthers the goal of reconciling the rights of Indigenous people with the assertion of Crown sovereignty – then the court must determine if the government is acting in accordance with its fiduciary obligation to Indigenous people.[42] The fiduciary obligation of the government is to give priority to the claims of Indigenous groups over non-Indigenous groups, and to take the group’s existing and potential Aboriginal and treaty rights seriously.[43] The Supreme Court first recognized the fiduciary obligation of the Crown in the Guerin case in 1984. It held that the surrender of land to the Crown gave rise to the fiduciary obligation.[44] The Court said in the Sparrow case in 1990 that the words, “recognized and affirmed” in section 35 confirm this fiduciary duty.[45]

Duty to consult

As a part of this fiduciary duty, the Crown has a duty to consult and accommodate Indigenous groups when the groups Aboriginal (existing or potential) or treaty rights can be affected.[46] The duty to consult is triggered where the Crown has actual or constructive knowledge of a potential or existing Aboriginal right that may be affected by their conduct or decision making.[47]

The duty to consult exists on a spectrum, depending on the circumstances of the claim.[48] The Court said in the Haida Nation v British Columbia (Minister of Forests) (2004) case that the government may be required to do as little as give notice to the group affected where the claim is weak, or the right infringement is minimal.[49] The Court has said that only for very serious issues, consent may be required. In a case decided later in the same year as Haida, the Taku River Tlingit First Nation v British Columbia (Project Assessment Director) case, the Court clarified that the government is able to fulfil its duty even when no agreement has been reached with Indigenous peoples so long as they consult and accommodate, in accordance with their fiduciary duty.[50]

Conclusions – Looking Forward

While the constitutional protection afforded to Aboriginal and treaty rights in section 35 has been a useful tool for Indigenous groups to enforce their rights in the courts, challenges remain. While Aboriginal title is now recognized, it comes with an inherent limit imposed by the state. The state retains underlying title to the land, and land can only be sold to the Crown (it cannot be mortgaged, for example). The state can infringe on the rights that are protected in the Constitution, so long as they can justify the infringement according to the Sparrow test that the Canadian courts have created.

Further, use of courts to assert rights is expensive and time consuming. Indigenous legal scholar John Burrows has critiqued the Aboriginal title claim process in particular for being unworkable. The Tsilquot’incase took 16 years and $40,000,000 to be resolved in the courts. This case was publicly funded as a test case. Burrows argues that the price tag for acquiring court-recognized Aboriginal title is unattainable to most.[51]

Indigenous groups have experienced many successes in litigating Aboriginal and treaty rights using section 35 of the Constitution, however there is much room for the law to continue to evolve.

[1] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35.; R v Sparrow, [1990] 1 SCR 1075 at 1105, 70 DLR (4th) 385 [Sparrow].

[2] Calder et al. v. Attorney-General of British Columbia, [1973] SCR 313, 34 DLR (3d) 145 [Calder]; R v Van der Peet, [1996] 2 SCR 507 at 538, 137 DLR (4th) 289 [Van der Peet].

[3] Sparrow, supra note 1 at 1091.

[4] Ibid.

[5] Sparrow, supra note 1 at 1097; Delgamuukw v. British Columbia, [1997] 3 SCR 1010 at para 180, 153 DLR (4th) 193 [Delgamuukw].

[6] Sparrow, supra note 1.

[7] Van der Peet, supra note 2 at para 28.

[8] Van der Peet, supra note 2 at para 46.

[9] R v Badger, [1996] 1 SCR 771 at para 76, 133 DLR (4th) 324 [Badger].

“The Crown” refers to the British monarchy. Because Canada is a constitutional monarchy in which the British King or Queen is the head of state, the Government of Canada acts on behalf of the Crown. Early treaties were formed between the British Crown and First Nations. After Canada became a country, the Government of Canada stepped into the role of the British Crown in Canada-First Nation relationships.

[10] Note: Indigenous is the preferred international term to describe, “communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them.” Aboriginal is the constitutionally enshrined term to describe Indigenous people in Canada.

See: United Nations, Economic and Social Council, Study of the Problem of Discrimination Against Indigenous Populations, by Jose R. Martìnez-Cobo, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, catalogue number E/CN.4/Sub.2/1983/21 (New York: United Nations, Economic and Social Council, 1983).

[11] Calder, supra note 2 at 328; Guerin v The Queen, [1984] 2 SCR 335 at 378, 382, 13 DLR (4th) 321 [Guerin]. See also St. Catharine’s Milling and Lumber Co v R (1887), [1887] 13 SCR 577, [1888] 14 AC 46 (PC) [St. Catharine’s].

[12] Guerin, supra note 11 at 379; see also St. Catharine’s, supra note 11.

[13] Guerin, supra note 11 at 365.

[14] George R, Proclamation, 7 October 1763 (3 Geo III), reprinted in RSC 1985, App II, No I; Patrick J Monahan, Byron Shaw & Padraic Ryan, Constitutional Law, 5th ed (Toronto: Irwin Law Inc, 2017) at 475.

The Royal Proclamation is a document issued by King George III after the Seven Years War to proclaim ownership over the territory in North America. The Royal Proclamation also includes statements governing the relationship between settlers and Indigenous peoples.

[15] Calder, supra note 2 at 376; Guerin, supra note 111 at 399; Van der Peet, supra note 2 at 540, 577.

[16] Delgamuukw, supra note 5 at para 115.

[17] Delgamuukw, supra note 5 at 124.

[18] Delgamuukw, supra note 5 at para 117.

[19] Delgamuukw, supra note 5 at para 142.

[20] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 at para 48, [2014] 2 SCR 257 [Tsilhqot’in].

[21] Tsilhqot’in, supra note 21 at para 38.

[22] Tsilhqot’in, supra note 21 at para 42.

[23] Tsilhqot’in, supra note 21 at para 33-44.

[24] Van der Peet, supra note 2 at para 46. See Van der Peet, supra note 2 at paras 48 – 75 for a discussion of factors to be considered in determining if an element is integral to the distinctive culture of the group.

[25] Van Der Peet, supra note 2 at para 61.

[26] Sparrow, supra note 1 at 1093.

[27] Van der Peet, supra note 2 at para 74.

[28] Treaties with Aboriginal people in Canada, online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca/eng/1100100032291/1100100032292>.

[29] Monahan, supra note 14 at 481.

[30] See Monahan, supra note 14 at 482: After the Calder decision in 1973, the government announced a willingness to settle claims with Indigenous peoples. As of June 2016, 1235 specific claims (this includes cases of non-fulfilled treaty promises and cases related to administration of land under the Indian Act) have been concluded, with approximately 350 under negotiation.

[31] See Anthony J Hall, “Treaties with Indigenous Peoples in Canada,” Canadian Encyclopedia (06 June 2011), online: < https://www.thecanadianencyclopedia.ca/en/article/aboriginal-treaties/>.

[32]Van der Peet, supra note 2 at para 25.

[33] Badger, supra note 9 at para 52.

[34] Ermineskin Indian Band and Nation v Canada, 2009 SCC 9 at para 54, [2009] 1 SCR 222.

[35] R v Marshall, [1999] 3 SCR 456 at para 29, 177 DLR (4th) 513 [Marshall].

[36] Marshall, supra note 36 at para 35.

[37] Marshall, supra note 36 at para 67.

[38] See R. v. Lefthand, 2007 ABCA 206 at para 75, 222 CCC (3d) 129 for a discussion of the principle of the “Honour of the Crown.”

[39] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 19, [2004] 3 SCR 511 [Haida].

[40] Sparrow, supra note 1 at 1113.

[41] Ibid.

[42] Sparrow, supra note 1 at 1114.

[43] Sparrow, supra note 1 at 1119.

[44] Guerin, supra note 11 at 389.

[45] Sparrow, supra note 1 at 1109.

[46] Haida, supra note 40 at para 35; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 at para 34, [2005] 3 SCR 388. See also Beckman v Little Salmon/Carmacks First Nation [2010] 3 SCR 103, in which the majority found that the duty to consult is an implied term in regard to all rights in modern, comprehensive treaties that specifically call for consultation with regards to particular rights and not others.

[47] Haida, supra note 40 at para 35; Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 at para 31, [2010] 2 SCR 650.

[48] Haida, supra note 40 at para 37.

[49] Haida, supra note 40 at paras 43-45.

[50] Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 at para 22, [2004] 3 SCR 550.

[51] John Burrows, “Aboriginal Title in Tsilhqot’in v. British Columbia [2014] SCC 44,” Māori Law Review(August 2014), online: < http://maorilawreview.co.nz/2014/08/aboriginal-title-in-tsilhqotin-v-british-columbia-2014-scc-44/>.

Canada’s Democracy

Canada is a democracy, which means that the government can act only with the authority of the Canadian people. Canadians elect people to represent them in Parliament and in the provincial legislatures. Those representatives are responsible for making laws and governing the country.

However, the government is more than just elected representatives. The Canadian government includes political parties, a Prime Minister, the Cabinet, the Governor General, and a bureaucracy of paid civil servants. Each provincial and territorial government has a Premier and either a Lieutenant-Governor or a Commissioner. When most Canadians think of their government, they think of all of these elements combined.

Canada is organized as a democracy because of the Constitution. The Constitution is the supreme law of Canada and it describes how Canadian democracy works. The Constitution Act, 1867 says that Canada’s Constitution is “similar in Principle to that of the United Kingdom”.[1] Those words are important because they confirm that Canada will follow the principle in the Constitution of the United Kingdom that it is a democracy. By following the Constitution of the United Kingdom, Canada is ensuring that its government is democratic.

Hundreds of years ago in England, before the 18th century, the King or Queen had supreme rule. However, the Parliament of England in 1689 passed the Bill of Rights which changed this by limiting the powers of the crown.[2] After the Bill of Rights was passed, the Parliament of England, rather than the King or Queen, was supreme in making laws. In Canada, Parliament and provincial and territorial legislatures enjoy similar supremacy to make laws.

The exclusive powers of Parliament and provincial legislatures to make laws as they see fit is an important part of democracy. If the Prime Minister, Cabinet, the Governor General, or even the King or Queen could tax Canadians, make laws, or strike down laws made by legislators, then democracy would not be as important. However, because only elected representatives can do those things, and Canadians chose whom to elect, democracy puts final authority in the hands of Canadians.

Parliamentary Government

At the time of Confederation, there was already a functioning Parliament and a Governor General representing the Queen. Each province had a legislature with a lieutenant-governor representing the Queen. Parliament is composed of a lower house (the House of Commons) and an upper house (the Senate). Canadians elect Members of Parliament to the House of Commons. Senators are appointed by the Governor General of Canada on the advice of the Prime Minister according to geographical divisions set out by the Constitution Act, 1867.[3]

Although Parliament (and the provincial legislatures) make the laws, the Governor General, representing the Queen, governs through a cabinet, which is chosen and led by the Prime Minister. Cabinet members are responsible, answerable, and accountable to the House of Commons for government departments that they supervise. Cabinet members must also defend government policy and be prepared to answer questions that Members of Parliament have about government actions. Cabinet also acts as the official advisory body to the Governor General, who through convention usually will act on its advice.

Democratic Rights

Although democracy is important to Canada’s identity, one of the most important constitutional documents, the Constitution Act, 1867, is silent on many features of Canada’s government. The Constitution Act, 1867 establishes the composition of the House of Commons and how many elected representatives are assigned to each province and territory.[4] However, the Constitution did not formally grant democratic rights to Canadian citizens until the Canadian Charter of Rights and Freedoms was enacted in 1982.[5]

Section 1 of the Charter refers to Canada as being “a free and democratic society”.[6] Section 3, 4, and 5 of the Charter outline the democratic rights of Canadian citizens.[7] Sections 4 and 5 establish the maximum duration of legislatures and how often there shall be sittings of legislatures. Section 3 guarantees Canadian citizens the right to vote in federal and provincial elections, and the right to run for public office. The majority of the Supreme Court of Canada has said that “the right of each citizen to participate in the political life of the country is one that is of fundamental importance in a free and democratic society”.[8]

[1]Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

[2]Bill of Rights, 1688, 1 Will and Mar Sess 2, c 2.

[3]Supra note 1, s 24.

[4]Ibid, s 37.

[5]Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[6]Ibid, s 1.

[7]Ibid, ss 3-5.

[8]Figueroa v Canada (AG), 2003 SCC 37, [2003] 1 SCR 912, at para 26.

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