Do Canadian provinces have constitutions?

Do Canadian provinces have their own individual constitutions like American states?

No, Canadian provinces do not. Canada’s constitution was not even patriated until 1982.

Keep in mind the the Criminal Code is federal in Canada (yes, there are provincial laws you can break and be punished for, but the Criminal Code covers all the usual “criminal” offenses). There are also many other aspects of law that are federal in nature (for instance, the right to marry). So, even if a province had a “constitution”, there would be a lot less for it to have jurisdiction over than US state constitutions since it couldn’t pre-empt federal law.

There are a bunch of ways that Canada is more centralized than the US, if I recall correctly. One important thing is that, generally speaking, anything that is not specifically laid out as one of the powers of the US federal government in the federal constitution is considered the domain of the states.

That’s opposite up here. Anything not laid out in the canadian constitution as the responsibilities or powers of the provinces is considered the responsibility of the country as a whole, more or less.

To a certain extent, hearing about the supreme court debates about ‘state’s rights’ down there, it seems as if the USA is still 50-semi independent entities trying to figure out a way to work together.

Canada is more like a single large country that splits itself up into smaller districts in order that local areas can take care of their own problems when possible.

ALL political entities with an organized governmental structure have a “constitution.”

Many political entities do not write it down. England is one such political entity. When you study English (or British) Constitutional Law or History, you don’t go to a written document like the United States Constitution; you have to sift through all the various Acts of Parliament (or, in earlier times, the various acts and decrees of the king), the decisions of the various courts, etc. It’s a far more complex subject than even our quite complex version.

Canadian provinces for the most part do not have written constitutions. I believe, if I recall correctly, that British Columbia is an exception. I don’t know if the new province of Nunavut has one or not.

The powers and organization of the provincial governments are enumerated in the Canadian constitution, AFAIK.

Good point on written constitutions vs. the nature of constitutionality as “unwritten constitution.”

Minor nitpick: Nunavut is a territory, not a province. The distinction is not so clearcut as in U.S. territory vs. state, but still significant.

Nunavut is a territory, not a province.

Hmmmm, ok. I had thought they were the newest province. Shows what an ignorant pay no attention to the affairs of my large and important neighbor type of person I am. :smack:

Yukon, Nunavut and the Northwest Territories don’t have provincial status. They do get to send representatives to Parliament however. One from each territory

Since it’s a Canadian government site it has to be in English and French as well as Inuktitut. Which I have learned that is in a font that my PowerBook can read which is pretty cool!

Now if only it was a font we could read, eh? :stuck_out_tongue:

Yes, provinces have constitutions, but they’re not like the US models, where everything is all contained in one document that is entrenched and can only be amended by plebescites and super-majorities and things.

Provincial constitutions have three components:

[li]provisions entrenched in the Constitution of Canada[/li][li]provisions set out in ordinary provincial statutes[/li][li]the unwritten provisions mainly dealing with the royal prerogative and constitutional convention[/li][/ul]

First of all, there is the Constitution of Canada, which sets out the basic structure and powers of both the federal goverment and the provinces (mainly found in Constitution Act, 1867), and places constitutional limits on the exercise of those powers (Canadian Charter of Rights and Freedoms). So things like the provincial Legislatures being composed of the Lieutenant Governor (representing the Queen) and elected members, is derived from the 1867 Act. The list of legislative powers for the provinces is also set out there, mainly in s. 92. These sort of basic provisions can only be changed by constitutional amendments, requiring some combination of consents by the federal Parliament and the provincial Legislatures. For example, one province can’t decide unilaterally to get rid of the Queen and become a provincial republic.

However, within that basic framework from the Constitution of Canada, the provinces have considerable lee-way to determine the structure of their governments. They do that by passing ordinary statutes in the Legislature. For example, many provinces at one time had bi-cameral legislatures; now they’re all unicameral. All that was needed to change the structure in a province was an act of the provincial Legislature, abolishing one of the houses of the provincial Legislature. So things like the size of the Assembly, the electoral system used (first-past the post, currently), the number of Cabinet departments, the powers of the Cabinet members, the languages used, additional protections for civil liberties within the province - all are found in ordinary statutes, for the most part. (B.C. does have a statute called the Constitution Act, as DSYoungEsq mentions, by my understanding is that it’s simply a provincial statute - could be amended at any time by an ordinary vote in the provincial Legislature.) However, I would quibble with one part of DSYoungEsq’s comments - these parts of the provincial constitutions are not unwritten - it’s just that they’re in ordinary statutes, not entrenched in some way, and not consolidated into one document.

And then there’s the “unwritten” parts - the royal prerogatives and the constitutional conventions. Even here, “unwritten” is a bit misleading. The royal prerogative is an aspect of the common law, and like other common law matters, can be detemined from the decisions of the courts. The royal prerogative also has force of law, just like other aspects of the common law. The only part that I would say is truly “unwritten” is the constitutional conventions of responsible government. These are essentially the understandings, established through custom and long usage, that determine how certain things will occur. For example, you won’t find any law anywhere that says a government has to resign if it loses a non-confidence vote, as happened this week with PM Martin’s government - but everyone knows that’s what will happen. There’s also no law anywhere that says the Queen will take the advice of her elected officials, but we all know that she will (other than on her reserve powers, the scope of which are also not defined by law, but by custom).

I would respectfully disagree with this summary. To the extent there is a “state’s rights” debates in the SCOTUS, it has been judges like the late Rehnquist C.J. arguing that the federal government in the U.S. has become too heavily centralised and is intruding on matters properly reserved to the states, particularly by an over-expansive reading of the federal commerce power.

That’s not the case in Canada, where I would argue the provincial governments have considerably more constitutionally entrenched areas of jurisdiction than do the states. A big one is the issue of commerce. The federal commerce power for the Canadian parliament has been interpreted as applying primarily to international and inter-provincial trade. Purely local trade within the Province is an area of exclusive provincial jurisdiction.

I would also disagree with your comment about the residual clause. It’s arguable that Canada has two residual clauses in its Constitution: the federal one, found in the opening words of section 91 (commonly called the “Peace, Order and Good Government” clause), and the provincial one, in section 92(16), which assigns to the provinces “Generally all Matters of a merely local or private Nature in the Province.” The way the courts have interpreted these two clauses is reasoning by analogy. If a new topic comes up that was not specifically assigned by the Fathers of Confederation to either level of government, the job of the courts is to try and determine where it would most likely have been placed, by analogy to the other powers of the two governments.

A good example is aeronautics, which the Fathers did not foresee. However, they did know about railroads and ships and other forms of transport that connect the different parts of the country, and gave them to the feds. So by analogy, aeronautics best fits in the federal list, through the POGG power.

An example going the other way is health care. The Fathers did not foresee the development of our modern medicare system. If we just had a residual clause in favour of the federal government, that would mean that health care is a matter of federal jurisidiciton. However, the Fathers did assign jurisdiction over hospitals and related institutions to the provinces (s. 92(7)). The Supreme Court has held that by analogy, health care is a matter of provincial jurisdiction, under s. 92(16).

True, criminal law is federal here, but that’s balanced by the fact that the federal commerce power in Canada is much weaker than it is in the United States. The provinces have much more substantial exclusive commerce powers than do the states.

As well, one key difference is that our division of powers is based on exclusivity. If the federal government has jurisdiction over something, the provinces cannot regulate, and vice versa - if the provinces have jurisdiction, the federal government can’t regulate it. We only have concurent federal and provincial powers in a few areas, like agriculture and immigration. If the federal government intrudes on the powers of the provinces, it will be struck down.

As well, since we use an exclusivity model, the federal government can’t preclude the operation of provincial laws. Our method of resolving conflicts is the paramountcy test, which is that a provincial law is inoperative only if it actually conflicts with the federal law in operation - not the broader test of preclusion and dormant commerce clause analysis that is used in the U.S. system.

For an example of a recent case on paramountcy in the SCC, see Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13. In that case, federal law prohibited certain types of tobacco advertising, but stated that if the retailer complied with the federal regulations, it could display tobacco. The provincial law prohibited the retail display of tobacco in premises where under 18s were admitted. The tobacco company tried to argue that the provincial law conflicted with the federal law. The SCC disagreed, and held that there was no conflict.

That’s actually what I was referring to when I said provinces don’t have constitutions. I wouldn’t consider “provisions set out in ordinary statutes” to be part of a consititution (otherwise the entire body of law would be a constitution). Let’s put it this way - provinces don’t have constitutions with the same over-riding power that Canada as a whole does. Our Canadian constitution can’t be changed by a simple vote in Parliament but if the Alberta government doesn’t like one of the provincial statutes it just goes ahead and changes it.


“Constitutional” can have two distinct meanings (other than as the antonym to “unconstitutional” with reference to a cassational review of conformity):

  1. Set apart as a “higher” standard of law, less easy to amend and spelling out norms to which other law must conform

  2. Of or pertaining to the basic structure of how government is done and what aspects of that process are to be preserved, such as guarantees of rights, special status awarded ethnic minorities, etc.

When one speaks of “constitutional” in the second sense, one is simply talking about the structure of government and those things which are held by consensus to be essential to it, regardless of whether they are embodied in a “Constitution” document, in statute, or merely in “what everybody knows.”

That Elizabeth II Mountbatten-Windsor, resident over in the U.K. and married to a former Greco-Danish prince who was made a duke there, is “head of state” of the Kingdom of Canada, though represented 99.99% of the time by a Governor General who acts in her stead, is a legal fiction. It’s an important one with some significant implications and some patriotic emotional involvement behind it, but one nonetheless. It’s a good example of a “consensus” constitutional convention.

Whenever a law says, as many do these days, “Notwithstanding any other act of law,…” or includes a severability clause, it has accorded itself constitutional status, by spelling out how the courts are to regard it taken in conjunction with some other law where there may be a potential for conflict. In other words, in sense 2, that which is constitutional provides instructions for the operation of government, however petty and mundane they may be. The Traffic Courts Procedural Act (supposing there to be one somewhere) is functioning constitutionally in this sense.

Then note that you do not need a single document with “Constitution” engrossed in large type at the top to make something “constitutional” in sense #1. The Canadian constitution is actually a portmanteau of documents which cross-reference each other; the Swedish constitution is a set of five grundlagen, laws that specifically call for themselves being read as representing that “higher standard” to which other laws must conform.

This reflects an incorrect understanding of the meaning of the word “constitution” as it applies to forms of government. You don’t have to have a single written source, difficult to amend, to have a constitution. You can have a “constitutional” crisis even without such a document.

Part of why the founding fathers of the United States of America wrote down a set of operating laws for their government was that they wanted to avoid the sort of uncertainty over what government could legitimately do that on occasion caused difficulty in England. Not that 200 years later we remember the lesson… :smack:

Parts of the Canadian Constitution can be changed by a simple statute, either of Parliament or the relevant provincial legislature, depending on whether the provision is entrenched or not.

A good example at the federal level is the allocation of seats in the House of Commons. The exact number of seats for each province is determined by section 51 of the Constitution Act., 1867. Parliament amends section 51 from time to time to determine the formula used for the allocation of seats. The most recent amendment to section 51 was by the Constitution Act, 1985 (Representation), S.C. 1986, c. 8.

As well, it’s not the case that the provinces can amend their provincial constitutions anyway they wish by an ordinary provincial statute. They are bound by several restrictions:

[li]the office of the Queen and the Lieutenant Governor can only be amended by unanimous consent of Parliament and all ten provincial Legislatures (Constitution Act, 1982, s. 41(a)); [/li][li]there must be at least one elected chamber, elected by all citizens of the Province through their constitutionally guaranteed right to vote (Canadian Charter of Rights and Freedoms, s. 3);[/li][li]the Legislature must meet at least once a year (Canadian Charter of Rights and Freedoms, s. 4);[/li][li]elections for the Legislative Assembly must occur at least every five years (Canadian Charter of Rights and Freedoms, s. 5);[/li][li]the legislative powers of the provincial Legislatures are set out in the Constitution Act, 1867, and cannot be expanded or contracted unilaterally by the Province (Constitution Act, 1867, ss. 92-95);[/li][li]some provinces (Quebec, Manitoba and New Brunswick) have constitutionally entrenched language rights for English and French, which cannot be amended unilaterally by the Province (Canadian Charter of Rights and Freedoms, ss. 16 - 22;[/li][li]some provinces (Ontario, Alberta and Saskatchewan) have constitutionally entrenched rights for minority religious education which cannot be amended unilaterally by the Province. These provisions did apply to Quebec as well, but it took a constitutional amendment to allow Quebec to abolish the separate religious schools in that province (Constitution Act, 1867, ss. 93, 93A).[/li][/ul]

Finally, if the provinces don’t have constitutions, it’s odd that the Constitution Act, 1982 gives the Provinces the power to amend their own constitutions, within the limits set out above:

I would respectfully disagree, Polycarp. Her status as head of state is not a legal fiction, nor a matter of constitutional convention, but is set out by the Constitution Act, 1867, which is part of the supreme law of Canada.

Section 9 sets out her status as head of the executive:


Section 17 provides that the Queen is part of Parliament:

There is no doubt that her exercise of her powers are circumscribed by constitutional convention, but it is not a legal fiction that she is head of state. It is just that under our Constitution, our head of state rarely exercises her undoubted constitutional and legal powers, unlike the head of state of countries such as the United States. In fact, the Queen exercised some of her powers under the Canadian Constitution very recently, when she appointed our new Governor General. Of course, the Queen exercised those powers, quite properly, on the advice of the Prime Minister of Canada.