Constitution of Canada

A constitution is a system of fundamental principles that govern a nation, state or other organization. Canada’s Constitution sets out the framework for how the nation will operate.

Canada’s Constitution is not just one document. It consists of unwritten rules and customs as well as two important pieces of legislation:

• Constitution Act, 1867 – the legislation that created Canada as a separate country
• Constitution Act, 1982 – the legislation that allowed Canada to change its Constitution without Britain’s consent and which builds on the Constitution Act, 1867

When we talk about “the Constitution”, we are usually talking about both the 1867 and 1982 Constitution Acts together.

Last Reviewed: June 2023

Canada’s Constitution is foundational to how our country and provinces operate. It delegates powers between levels of government (called division of powers) and separates powers within a level of government (separation of powers). It is the backbone of our democracy.

Last Reviewed: June 2023

Among other things, the Constitution:

• enshrines the Canadian Charter of Rights and Freedoms
• creates the Parliament of Canada, including the Senate and the House of Commons
• creates provincial governments
• distributes powers between the federal and provincial governments
• sets out rules for appointing judges
• includes financial terms about revenues, debts, assets and taxes
• sets out rights of Indigenous peoples in Canada
• includes equalization formulas and rules for minimizing regional disparities
• sets out a process for amending the Constitution of Canada

Last Reviewed: June 2023

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.

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.

Last Reviewed: June 2023

As set out in section 91 of the Constitution Act, 1867, the federal government is responsible for many subjects, including:

• criminal law
• federal taxation
• navigation and shipping
• banking
• patents and copyright
• national defense
• foreign affairs
• fisheries
• divorce
• trade and commerce
• citizenship and Indigenous relations
• postal system

Read section 91 for the full list of subjects.

Last Reviewed: June 2023

As set out in section 92 of the Constitution Act, 1867, provincial governments are responsible for several subjects, including:

• taxation for provincial purposes
• the provincial courts and civil procedure in the courts
• natural resources
• education
• hospitals
• property laws
• solemnization of marriage
• the creation and regulation of municipalities, and employment standards laws, licensing, provincial prisons and many other matters touching on life in the province

Read section 92 for the full list of subjects.

Last Reviewed: June 2023

Municipalities are created by and get their powers from provincial laws. For example, Alberta’s Municipal Government Act allows for and regulates municipalities within Alberta. Each province has similar legislation.

Powers of municipalities under these laws usually include:

• calculating and collecting property, school, and business taxes
• public transportation
• police, fire, and sanitation services
• roads and streets
• parks
• water and power services

Last Reviewed: June 2023

The separation of powers distributes a government’s authority among three branches. (Whereas the division of powers divides authority between levels of government.)

Federal, provincial and territorial governments separate powers among three branches:

1. 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.
2. 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.
3. 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).

Last Reviewed: June 2023   

Jurisdiction means authority.

When we talk about the jurisdiction of a government, we mean its authority over two things:

• the subjects assigned to it by the Constitution Act, 1867
• the things within its physical boundaries, including land and people

For example, the federal government has jurisdiction to make laws for all of Canada about the subjects listed in section 91 of the Constitution Act, 1867. It does not have jurisdiction to make laws that apply only in one province or about a subject within the authority of provincial governments as set out in section 92 of the Constitution Act, 1867.

When we talk about the jurisdiction of a court or administrative body, we mean its authority to interpret certain laws and make decisions about certain legal issues. For example, the Alberta Court of Justice can only make decisions about legal issues assigned to it in the Court of Justice Act. Administrative bodies only have jurisdiction over issues under the legislation that create them. For example, the Alberta Human Rights Commission can only make decisions about human rights set out in the Alberta Human Rights Act. The Supreme Court of Canada has authority to make decisions about any law in Canada.

Last Reviewed: June 2023

The Charter‘s preamble says Canada is founded on the principle of the rule of law. This means no one is above the law and everyone must follow the law. Government officials, the police and the courts must follow the law, no exceptions.

Last Reviewed: June 2023