Understanding Canada’s Constitution is a great first step in understanding the debate around Alberta’s Sovereignty Act and the draft Saskatchewan First Act.
EDITOR’S NOTE Alberta’s Sovereignty Act came into effect on December 15, 2022 when it received royal assent from the Lieutenant Governor.
There is a lot of talk right now about Canada’s Constitution and what government actions are or are not constitutional.
On December 7, 2022, Alberta passed its Alberta Sovereignty Within a United Canada Act (dubbed the Sovereignty Act), which is awaiting Royal Assent before it takes effect. The government has said the Act sets out a process for it to push back against federal initiatives it believes interfere with Alberta’s authority. The Act has been the subject of much debate in recent weeks. But Alberta is not the only province taking action. The Saskatchewan First Act passed second reading on November 28, 2022 and aims to solidify Saskatchewan’s authority over energy and natural resources.
Understanding Canada’s Constitution is a good first step in understanding these Acts and the debate surrounding them.
What is Canada’s Constitution?
Canada’s Constitution creates a framework for how the nation will operate. Canada’s Constitution is not just one document. It consists of:
- The Constitution Act, 1867
- The Constitution Act, 1982 (which includes the Canadian Charter of Rights and Freedoms)
- unwritten rules and customs
When we talk about “the Constitution”, we are usually talking about both the 1867 and 1982 Constitution Acts together.
Two important legal foundations flow from the Constitution: division of powers and separation of powers.
What is the division of powers?
Canada is a federal state, which means the federal government, the three territorial governments and the ten provincial governments share lawmaking responsibilities. Sections 91 and 92 of The Constitution Act, 1867 distribute powers between the federal and provincial governments, with each level having jurisdiction (authority) to make laws over certain subjects.
Section 91 lists thirty areas within federal jurisdiction and section 92 lists fifteen areas within provincial jurisdiction. For example, the federal government has jurisdiction over unemployment insurance and copyrights and patents, while the provincial governments have jurisdiction over property and civil rights and marriage ceremonies. The provincial governments also have jurisdiction over municipalities, meaning they can delegate certain law-making responsibilities to cities and towns within their borders.
The Constitution does not cover every subject requiring governance. One reason is that the drafters in 1867 could not possibly think of everything that would need to be regulated going forward. Over the last 150 years, the federal government and the provinces have for the most part worked together to regulate areas not covered in sections 91 or 92. Where they cannot agree, they refer the issue to the courts, who determine which level of government has jurisdiction. For example, the Constitution does not say who is responsible for the environment. Over the years, several issues have gone to the Supreme Court of Canada for decision, including the federal carbon pricing law in 2021.
What is the separation of powers?
The separation of powers distributes a government’s jurisdiction among three branches. (Whereas the division of powers divides jurisdiction between levels of government.)
Federal, provincial and territorial governments separate powers among three branches:
- The legislative branch makes the laws. Federally, this is Parliament, which includes the House of Commons and the Senate. Provincially, this is the provincial legislatures.
- The executive branch implements the laws. It includes the monarch (as represented by the Governor General and Lieutenant Governors), the government leader and the cabinet.
- The judicial branch interprets the laws. It includes the Supreme Court of Canada, the courts within a province, and the federal courts.
This separation of powers provides important checks and balances on government and is foundational to a democratic system. For example, the legislature makes the law, but the judiciary interprets the laws. The courts are the final decision maker on whether a law made by a legislature is unconstitutional (illegal because it goes against the Constitution).
Why should you care about Canada’s Constitution?
Canada’s Constitution is foundational to how our country and provinces operate. It delegates powers between levels of government and separates powers within a level of government. It is the backbone of our democracy.
Where to find more information?
Below are more resources to help you better understand the Constitution, including in relation to Alberta’s Sovereignty Act.
- Centre for Constitutional Studies website, where you can find information about the Constitution, Charter rights, federalism, Indigenous rights, and governance.
- Democratic Governance: The Constitution and Canada’s Branches of Government LawNow article further explaining the executive, legislative and judicial branches of government in Canada.
- The Rule of Law: What is it? Why should we care? LawNow article explaining the rule of law, in that no person or government is above the law.
- Interview by the Centre for Constitutional Studies with Professor Feo Snagovsky (Political Science, University of Alberta) about Alberta’s Sovereignty Act and democratic institutions.
- Interview by the Centre for Constitutional Studies with Marion Sandilands (constitutional lawyer with Conway Litigation) about how the Constitution works and the constitutionality of Alberta’s Sovereignty Act.
Looking for more information?
Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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