The Constitution Act, 1982 (Schedule B of the Canada Act 1982 (UK)) is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867.
To the present day, the Government of Quebec has never formally approved of the enactment of the Act, though formal consent was never necessary. The Meech Lake and Charlottetown Accords were designed to secure approval from Quebec.
One of the most notable effects of the adoption of the Charter was to greatly expand the scope of judicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Bill of Rights. The courts, when confronted with violations of Charter rights, have struck down unconstitutional statutes or parts of statutes, as they did when Canadian case law was primarily concerned with resolving issues of federalism. However, the Charter granted new powers to the courts to enforce more creative remedies and to exclude more evidence in trials. These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada's mother country the United Kingdom, was based upon Parliamentary supremacy.
Section 35 of the Constitution Act, 1982 "recognizes and affirms" the "existing" aboriginal and treaty rights in Canada. These aboriginal rights protect the activities, practice, or traditions that are integral to the distinctive culture of the aboriginal peoples. The treaty rights protect and enforce agreements in between the crown and the aboriginal peoples. Section 35 also provides protection of aboriginal title which protects the use of land for traditional practices. These rights extend to people who make up the Indian, Inuit, and Métis peoples.
Other sections of the Constitution Act, 1982 that address aboriginal rights include section 25 of the Charter and section 35.1, which sets expectations for aboriginal participation in the amendment of relevant constitutional provisions.
Writing in 1982, Professor Peter Hogg expressed skepticism as to whether the courts could interpret and enforce this provision, noting its "political and moral, rather than legal" character. Other scholars have noted section 36 is too vague. Since the courts would not be of much use in interpreting the section, the section was nearly amended in 1992 with the Charlottetown Accord to make it enforceable. The Accord never came into effect.
Section 52(3) of the Constitution Act, 1982 says that constitutional amendments can only be made in accordance with the rules laid out in the Constitution itself. The purpose of this section was to entrench constitutional supremacy and remove the ability of legislators to amend the constitution using simple legislation.
The rules for amending Canada's constitution are quite dense. They are laid out in Part V of the Constitution Act, 1982.
There are five different amendment formulas, each applicable to different types of amendments. These five formula are:
Various other sections of Part V lay out such things as compensation for opting out, when and how a province may opt out of a constitutional amendment, and time limits for achieving a constitutional amendment.
Section 52(2), in addition to containing many Imperial Statutes, contains eight Canadian statutes, three of which created provinces, and five of which were amendments to the Constitution Act, 1867.
The Canadian courts have reserved the right to add and entrench principles and conventions into the Constitution unilaterally. Although a court's ability to recognize human rights not explicitly stated in a constitution is not particularly unusual, the Canadian situation is unique in that this ability extends to procedural issues not related to human rights.
In particular, in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), the Supreme Court of Canada said that s. 52(2) was not an exhaustive listing of all that comprised the Constitution. The Court reserved the right to add unwritten principles to the Constitution, thereby entrenching them and granting them constitutional supremacy (in this case, they added parliamentary privilege to the Constitution). The Court did note, however, that the list of written documents was stagnant and could not be modified except for through the amending formulas.
Section 56 of the Act states that the English and French versions of the Constitution are equal, and section 57 adds that the English and French versions of the Constitution Act, 1982 itself are equal. Legal experts compare this to section 18, which states that English and French versions of statutes are equal.
Section 59 limits the application of section 23 of the Charter (minority language education) in Quebec. The section will not be fully valid in Quebec until the provincial government chooses to ratify it.
Section 60 states that the Act may be called the Constitution Act, 1982, and that the Constitution Acts can be collectively called the Constitution Acts, 1867 to 1982.