The ‘preamble’ usually refers to the words that preface an act of Parliament or the legislatures.  Here, we refer to the opening words contained in each of Canada’s constitutional texts.  Preambles typically are used to state the general object or purpose of a law (see Dreidger at pages 93-94).  They are not intended to have any real force and effect, as do the provisions of a law.  Judges occasionally will resort to the preamble to help in understanding the constitutional guarantees that follow the preamble.

The preamble to the Constitution Act, 1867 contains four sentences, the most important declares that “the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom.”  The modern Constitution Act, 1982 has a short preamble, which states “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

Writing in the late nineteenth century, the English legal scholar Albert Venn Dicey wrote that, “if preambles were intended to express the truth,” the 1867 preamble should have declared that it was a constitution similar in principle to that of the United States (page 53).  Dicey saw more similarities between the U.S. and Canada – in its federal arrangement, difficulty of amendment, and necessity for judicial review – than between Canada and the United Kingdom.  Canadian scholars responded that these were superficial resemblances.  Rather, it was in the nature of Parliamentary government that Canada’s constitution was similar in principle to the United Kingdom’s (see Clement at page 335).

Though the preambles likely were not intended to have much significance, they have become increasingly important.  The Supreme Court of Canada suggested that the reference in the 1867 Act to “a Constitution similar in principle to that of the United Kingdom” is the foundation for Canada’s implied bill of rights (O.P.S.E.U. v. Ontario, [1987] 1 S.C.R. 2).  The same phrase was invoked by the Court to secure independence for provincial court judges from provincial legislatures (see Reference re Remuneration of Judges, [1997] 3 S.C.R. 3).  The reference to “the rule of law” in the 1982 preamble, the Court has noted, reflects “an unwritten postulate which forms the very foundation of the Constitution of Canada” (Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721).  Though an abstract notion, it “may give rise to substantive legal obligations” that governments are bound to obey as they are other constitutional provisions (Reference re the Secession of Quebec, [1998] 2 S.C.R. 217).

Sources:

  • W.H.P. Clement, The Law of the Canadian Constitution, 3d ed. (Toronto: Carswell, 1916).
  • A.V. Dicey, Introduction to the Study of the Law of the Constitution (London: MacMillan, 1885).
  • E.A. Dreidger, The Composition of Legislation (Ottawa: The Queen’s Printer, 1957).