Constitution Act, 1867

reasonConstitution Act, 1867

British North America Act 1867

Parliament of the United Kingdom
Long title	An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith.
Citation	1867 c. 3
Dates
Royal assent	29 March 1867
Status: Current legislation
Revised text of statute as amended

The Constitution Act, 1867 (originally enacted as The British North America Act, 1867, and referred to as the BNA Act), is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. The British North America Acts, including this Act, were renamed in 1982 with the patriation of the Constitution (originally enacted by the British Parliament); however, it is still known by its original name in United Kingdom records. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.

Preamble and Part I "Preliminary"

Front page of a copy of the Act from 1867

Main article: Preamble to the Constitution Act, 1867

The Act begins with a preamble that declares that the three provinces New Brunswick, Nova Scotia and the Province of Canada (which would become Ontario and Quebec) have requested to form "one Dominion...with a Constitution similar in Principle to that of the United Kingdom". This description of the Constitution has proven important in its interpretation. As Peter Hogg wrote in Constitutional Law of Canada, some have argued that since the United Kingdom had some freedom of expression in 1867, the preamble extended this right to Canada even before the enactment of the Canadian Charter of Rights and Freedoms in 1982; this was a supposed basis for the Implied Bill of Rights. In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), the leading Canadian case on parliamentary privilege, the Supreme Court of Canada grounded its 1993 decision on the preamble. Moreover, since the UK had a tradition of judicial independence, the Supreme Court ruled in the Provincial Judges Reference of 1997 that the preamble shows judicial independence in Canada is constitutionally guaranteed. Political scientist Rand Dyck has criticized the preamble, saying it is "seriously out of date". He claims the Constitution Act, 1867 "lacks an inspirational introduction".

The preamble to the Constitution Act, 1867 is not the Constitution of Canada's only preamble. The Charter also has a preamble.

Part I consists of just two sections. Section 1 gives the short title of the law as The British North America Act, 1867. Section 2 indicates that all references to the Queen (then Victoria) equally apply to all her heirs and successors.

Part II "Union"

Main article: Canadian Confederation

The British North America Act, 1867 established the Dominion of Canada by fusing the North American British "Provinces" (colonies) of Canada, New Brunswick, and Nova Scotia. Section 3 establishes that the union would take effect within six months of passage of the Act, and Section 4 confirmed that "Canada" was the name of the new country (and the word "Canada" in the rest of act refers to new federation and not the old province).

Section 5 lists the four provinces of the new federation. These are formed by dividing the former Province of Canada, into two; its two subdivisions, Canada West and Canada East, were renamed Ontario and Quebec, respectively, and became full provinces in Section 6. Section 7 confirms that the boundaries of Nova Scotia and New Brunswick were not changed. And Section 8 provides that a national census of all provinces must be held every ten years.

Part III "Executive Power"

Section 9 confirms that all executive powers remain with the Crown, as represented by a governor general or an administrator of the government, as stated in Section 10. Section 11 creates the Queen's Privy Council for Canada. Section 12 states that the executive branches of the provinces continue to exist and their power is exercised through the lieutenant governors, and that the powers exercised by the federal government must be exercised through the governor general, either with the advice of the privy council or alone. Section 13 defines the Governor-General in Council as the governor-general acting with the advice of the privy council. Section 14 allows the governor general to appoint deputies to exercises his powers in various parts of Canada. The commander-in-chief of all naval armed forces in Canada continues with the Crown under Section 15. Section 16 declares Ottawa the capital of the new federation.

Part IV "Legislative Power"

The Parliament of Canada, composed of the Crown and two houses (the House of Commons of Canada and the Canadian Senate) is created by section 17. Section 18 defines the powers and privileges of the parliament as being no greater than those of the British parliament. Section 19 states that Parliament's first session must begin six months after the passage of the act, and Section 20 holds that Parliament must hold a legislative session at least once every twelve months.

Senate

Main article: Canadian Senate

At the time of the Union, there were 72 senators (Section 21), equally divided between three regions Ontario, Quebec, and the Maritime Provinces (Section 22). Section 23 lays out the qualifications to become a senator. Senators are appointed by the governor general under section Section 24, and the first group of senators was proclaimed under section 25. Section 26 allows the Crown to add three or six senators at a time to the Senate, divided among the three regions, but according to section 27 no more senators can then be appointed until, by death or retirement, the number of senators drops below the regular limit. The maximum number of senators was set at 78, in Section 28. Senators were appointed for life (at the time), under Section 29, though they can resign under Section 30 and senators can be removed under the terms of section 31, in which case the vacancy can be filled by the governor general (Section 32). Section 33 gives the senate the power to rule on its own disputes over eligibility and vacancy. The speaker of the senate is appointed and dismissed by governor general under Section 34. Quorum for the Senate was initially set at 15 senators by Section 35, and voting procedures at set by Section 36.

House of Commons

Main article: House of Commons of Canada

The initial composition of the commons, under Section 37, consisted of 181 members, 82 for Ontario, 65 for Quebec, 19 for Nova Scotia, and 15 for New Brunswick. It is summoned by the governor general under Section 38. Section 39 forbids senators to sit in the commons. Section 40 divides the provinces in electoral districts. Section 41 continues electoral laws and voting qualifications of the time, subject to later revision, and Section 42 gives the governor general the power to issue writs of election for the first election. Section 43 allows for by-elections. Section 44 allows the house to elect its own speaker, and allows the house to replace the speaker in the case of death (Section 45) or prolonged absence (47), become a speaker is required to preside at all sitting of the house (46). Quorum for the house was set at 20 members, including the speaker by Section 48. Section 49 says that the speaker cannot vote except in the case of a tied vote. The maximum term for a house is five years between elections under Section 50. Section 51 sets out the rules by which commons seats are to be redistributed following censuses, allowing for more seats to be added by section 52.

Money votes and royal assent

"Money bills" (dealing with taxes or appropriation of funds) must originate in the commons under section 53, and must be proposed by the governor general (i.e. the government) under section 54. Section 55 specifies that all bills require royal assent. Sections 56 and 57 allowed the governor general to "reserve" or the British government to "disallow" Canadian laws within three years of their passage.

Part V "Provincial constitutions"

The basic governing structures of the Canadian provinces are laid out in the part of the bill. Specific mentions are made to the four founding provinces, but the general pattern holds for all the provinces.

Executive power

Each province must have a lieutenant governor (Section 58), who serves at the pleasure of the governor general (Section 59), whose salary is paid by the federal parliament (Section 60), and who must swear an oath of allegiance (Section 61). The powers of a lieutenant governor can be substituted for by an administrator of government (Sections 62 and 66). All provinces also have an executive council (Sections 63 and 64). The lieutenant governor can exercise executive power alone or "in council" (Section 65). The capital cities of the first four provinces were established by Section 66, but the Section also allows those provinces to change their capitals.

Legislative power

Ontario and Quebec

Sections 69 and 70 established the Legislature of Ontario, comprising the lieutenant governor and the Legislative Assembly of Ontario, and Sections 71 to 80 established the Parliament of Quebec, which at the time comprised the lieutenant governor, the Legislative Assembly of Quebec (renamed in 1968 to the National Assembly of Quebec), and the Legislative Council of Quebec (since abolished). The first sessions of both legislatures were set for six months after the passage of the bill (Section 81), and since that time they can regularly be summoned by the lieutenant governors (Section 82). Section 83 prohibits provincial civil servants (excluding cabinet ministers) from sitting in the provincial legislatures. Section 84 allows for existing election laws and voting requirements to continue after the Union. Section 85 sets the life of each legislature as no more than four years, with a session at least once each twelve months under Section 86. Section 87 extends the rules regarding speakers, by-elections, quorum, etc. as set for the federal House of Commons to the legislatures of Ontario and Quebec.

Nova Scotia and New Brunswick

Section 88 simply extends the pre-Union constitutions of those provinces into the post-Confederation era.

Other

Section 89 sets the times for the first provincial elections, and Section 90 extends the provisions regarding money votes, royal assent, reservation and disallowance, etc. as established for the federal parliament to the provincial legislatures.

Part VI: "Division of Powers"

Main articles: Canadian federalism; Section 91 of the Constitution Act, 1867; and Section 92 of the Constitution Act, 1867

The powers of government are divided between the provinces and the federal government and are described in sections 91 to 95 of the Act. Sections 91 and 92 are of particular importance, as they enumerate the subjects for which each jurisdiction can enact law, with section 91 listing matters of federal jurisdiction and section 92 listing matters of provincial jurisdiction. Sections 92A and 93 are concerned with non-renewable natural resources and education, respectively (both are primarily provincial responsibilities). Section 94 leaves open a possible change to laws regarding property and civil rights, which so far has not been realized. Sections 94A and 95, meanwhile, address matters of shared jurisdiction, namely old age pensions (section 94A) and agriculture and immigration (section 95).

Peace, order, and good government

Main article: Peace, order and good government

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated:

Section 91 authorizes Parliament to "make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces". Although the text of the Act appears to give Parliament residuary powers to enact laws in any area that has not been allocated to the provincial governments, subsequent Privy Council jurisprudence held that the "peace, order, and good government" power is, in fact, a delimited federal competency like those listed under section 91 (see e.g. AG Canada v AG Ontario (Labour Conventions), [1937] AC 326 (PC)). Canada's constitution therefore lacks a residuary powers clause.

First Nations, Inuit and Metis

Main article: Aboriginal peoples in Canada

Section 91(24) of the Constitution Act, 1867 provides that the federal government has the legislative jurisdiction for “Indians and lands reserved for the Indians.” (Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5 [hereinafter Constitution Act, 1867].) Aboriginal Affairs and Northern Development Canada (AANDC), formerly known as Indian and Northern Affairs Canada (INAC), has been the main federal organization exercising this authority (OAG 2011-06-04 p. 4).

Criminal law

Main article: Section 91(27) of the Constitution Act, 1867

Section 91(27) gives Parliament the power to make law related to the "criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters". It was on this authority that Parliament enacted and amends the Criminal Code.

However, under section 92(14), the provinces are delegated the power to administer justice, "including the constitution, maintenance, and organization of provincial courts, both of civil and criminal jurisdictions, and including procedure in civil matters in both courts". This provision allows the provinces to create the courts of criminal jurisdiction and to create provincial police forces such as the OPP and the Sûreté du Québec (SQ).

As a matter of policy dating back to Confederation, the federal government has delegated the prosecutorial function for almost all criminal offences to the provincial Attorneys General. Crown Prosecutors appointed under provincial law thus prosecute almost all Criminal Code offences across Canada.

Section 91(28) gives Parliament exclusive power over "penitentiaries" while section 92(6) gives the provinces power over the "prisons". This means that offenders sentenced to two years or more go to federal penitentiaries while those with lighter sentences go to provincial prisons.

Property and civil rights

Main article: Section 92(13) of the Constitution Act, 1867

Further information: Canadian property law and Human rights in Canada

Section 92(13) gives the provinces the exclusive power to make law related to "property and civil rights in the province". In practice, this power has been read broadly giving the provinces authority over numerous matters such as professional trades, labour relations, and consumer protection.

Marriage

Section 91(26) gives the federal government power over divorce and marriage. On this basis, Parliament can legislate on marriage and divorce. However, the provinces retain the power over the solemnization of marriage (section 92(12)).

There are also several instances of overlap in laws relating to marriage and divorce, which in most cases is solved through interjurisdictional immunity. For instance, the federal Divorce Act is valid legislation, even though the Divorce Act has some incidental effects on child custody, which is usually considered to be within the provincial jurisdictions of "civil rights" (s. 92(13)) and "matters of a private nature" (s. 92(16)).

Works and undertakings

Main article: Section 92(10) of the Constitution Act, 1867

Section 92(10) allows the federal government to declare any "works or undertakings" to be of national importance, and therefore remove them from provincial jurisdiction.

Education (Section 93)

Main article: Education in Canada

Section 93 gives the provinces power over education, but with significant restrictions designed to protect minority religious rights during a time when there was significant controversy between Protestants and Catholics in Canada over whether schools should be parochial or non-denominational. 93(2) specifically extends all pre-existing denominational school rights into the post-Confederation era.

Section 94

Section 94 allows for the provinces that use the British-derived common law system, in effect all but Quebec, to unify their property and civil rights laws. This power has never been used.

Agriculture and Immigration (Section 95)

Main articles: Agriculture in Canada and Immigration to Canada

Under Section 95, the federal and provincial governments share power over agriculture and immigration. Either order of government can make laws in this area, but in the case of a conflict, federal law prevails.

Part VII "Judicature"

Main article: Court system of Canada

The authority over the judicial system in Canada is divided between Parliament and the provincial Legislatures.

Parliament's power to create federal courts

Section 101 gives Parliament power to create a "general court of appeal for Canada" and "additional Courts for the better Administration of the Laws of Canada". Parliament has used this power to create the Supreme Court of Canada and lower federal courts. It has created the Supreme Court under both branches of s. 101. The lower federal courts, such as the Federal Court of Appeal, the Federal Court, the Tax Court of Canada and the Court Martial Appeal Court of Canada are all created under the second branch, i.e. as "additional Courts for the better Administration of the Laws of Canada".

Provincial power to create courts

Section 92(14) gives the provincial legislatures the power over the "Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction". This power includes the creation of both the superior courts, both of original jurisdiction and appeal, as well as inferior tribunals.

Superior courts are known as "courts of inherent jurisdiction", as they receive their constitutional authority from historical convention inherited from the United Kingdom.

Section 96 courts

Section 96 authorizes the federal government to appoint judges for "the Superior, District, and County Courts in each Province". No provinces have district or county courts anymore, but all provinces have superior courts. Although the provinces pay for these courts and determine their jurisdiction and procedural rules, the federal government appoints and pays their judges.

Historically, this section has been interpreted as providing superior courts of inherent jurisdiction with the constitutional authority to hear cases. The "section 96 courts" are typically characterized as the "anchor" of the justice system around which the other courts must conform. As their jurisdiction is said to be "inherent", the courts have the authority to try all matters of law except where the jurisdiction has been taken away by another court. However, courts created by the federal government under section 101 or by the provincial government under 92(14) are generally not allowed to intrude on the core jurisdiction of a section 96 court.

The scope of the core jurisdiction of the section 96 courts has been a matter of considerable debate and litigation. When commencing litigation a court's jurisdiction may be challenged on the basis that it does not have jurisdiction. The issue is typically whether the statutory court created under section 101 or 92(14) has encroached upon the exclusive jurisdiction of a section 96 court.

To validiate the jurisdiction of a federal or provincial tribunal it must satisfy a three-step inquiry first outlined in Re Residential Tenancies Act, 1979 (1981). The tribunal must not touch upon what was historically intended as the jurisdiction of the superior court. The first stage of inquiry considers what matters were typically exclusive to the court at the time of Confederation in 1867. In Sobeys Stores Ltd. v. Yeomans (1989) the Supreme Court stated that the "nature of the disputes" historically heard by the superior courts, not just the historical remedies provided, must be read broadly. If the tribunal is found to intrude on the historical jurisdiction of the superior court, the inquiry must turn to the second stage which considers whether the function of the tribunal and whether it operates as an adjudicative body. The final step assesses the context of the tribunal's exercise of power and looks to see if there are any further considerations to justify its encroachment upon the superior court's jurisdiction.

Constitutional jurisdiction

Not all courts and tribunals have jurisdiction to hear constitutional challenges. The court, at the very least, must have jurisdiction to apply the law. In N.S. v. Martin; N.S. v. Laseur (2003) the Supreme Court re-articulated the test for constitutional jurisdiction from Cooper v. Canada (Human Rights Commission). The inquiry must begin by determining whether the enabling legislation gives explicit authority to apply the law. If so, then the court may apply the constitution. The second line of inquiry looks into whether there was implied authority to apply the law. This can be found by examining the text of the Act, its context, and the general nature and characteristics of the adjudicative body.

See Section Twenty-four of the Canadian Charter of Rights and Freedoms for jurisdiction of the Charter.

Part VIII "Revenues; debts, assets; taxation"

Further information: Section 121 of the Constitution Act, 1867 and Section 125 of the Constitution Act, 1867

This Part lays out the financial functioning of the government of Canada and the provincial governments. It establishes a fiscal union where the federal government is liable for the debts of the provinces (Sections 111-116). It established the tradition of the federal government supporting the provinces through fiscal transfers (Sections 118 and 119). It creates a customs union which prohibits internal tariffs between the provinces (Sections 121-124). Section 125 prevents one order of government from taxing the lands or assets of the other.

Part IX "Miscellaneous"

Section 127 forbids members of the provincial upper houses (which still existed at the time), to also serve as senators at the same time.

Section 132 gives the federal government the sole responsibility to makes treaties with other countries, either within or without the British Empire.

Section 133 establishes English and French as the official languages of the Parliament of Canada and the Parliament of Quebec. No provision was made for the official languages of other government bodies.

Part X "Intercolonial railway"

Main article: Intercolonial railway

This part has only one section, which obligates the federal government to construct a railway uniting all the four original provinces.

Part XI "Admission of other colonies"

Further information: Territorial evolution of Canada

Section 146 allows the federal government to negotiate the entry of new provinces into the Union without the need to seek the permission of the existing provinces. Section 147 establishes that Prince Edward Island and Newfoundland would have 4 senators each if they were to join Confederation.

Small bill of rights

Professor Peter Hogg lists rights within the Constitution Act, 1867, which he calls a "small bill of rights."

Aside from the theory of the Implied Bill of Rights, there is no actual written bill of rights in the Constitution Act, 1867. Still, there are narrow constitutional rights scattered throughout the document. Hogg has referred to them as the "small bill of rights", though the Supreme Court in Greater Montreal Protestant School Board v. Quebec (1989) disliked that characterization in that rights in the Constitution Act, 1867 should not be interpreted as liberally as rights in the Charter. The rights Hogg identifies include language rights. There are also denominational school rights under section 93 (reaffirmed by section 29 of the Charter), notwithstanding provincial jurisdiction over education in Canada. Section 99 establishes a right for judges to serve unless removed by the legislature. Democratic rights include the rule that Parliament and the legislatures of Ontario and Quebec must sit at least once a year under sections 20 and 86, and there must be a federal election at least once every five years under section 50. These are repeated in section 4 and section 5 of the Charter and section 20 of the Constitution Act, 1867 has been repealed. The Constitution Act, 1867 also guarantees representation by population. Finally, section 121 allows for people to carry goods across provincial borders at no charge, and section 125 exempts government from paying most taxes.

Language rights

Although the 1867 Act did not establish English and French as Canada's official languages, it did provide some rights for the users of both languages in respect of some institutions of the federal and Quebec governments.

Section 133 allowed bilingualism in both the federal Parliament and the Quebec provincial legislature, allowed for records to be kept in both languages, and allowed bilingualism in federal and Quebec courts. Interpretation of this section has found that this provision requires that all statutes and delegated legislation be in both languages and be of equal force. Likewise, it has been found that the meaning of "courts" in section 133 includes all federal and provincial courts as well as all tribunals that exercise an adjudicative function.

These rights are duplicated in respect to the federal government, but not Quebec, and extended to New Brunswick, by section 17, section 18, and section 19 of the Charter of Rights; section 16 and section 20 of the Charter elaborate by declaring English and French to be the official languages and allowing for bilingual public services.

Canada Day

The anniversary of the Act's entry into force on July 1, 1867 is celebrated annually in Canada as Canada Day, Canada's national holiday.

Further reading

• Gwyn, Richard J. Nation Maker: Sir John A. Macdonald: His Life, Our Times (2011); 688pp excerpt and text search
• Morton, W.L. The Critical Years: The Union of British North America, 1857-1873 (1968)
• Riddell, William Renwick. The Constitution of Canada in Its History and Practical Working, in series, Yale Lectures on the Responsibilities of Citizenship (1917); xi, 170 pp.

Primary sources

• Browne, G. P., ed. Documents on the Confederation of British North America (2nd ed., McGill-Queen's University Press, 2009), 377pp; primary sources

External links

• Constitution Act, 1867
• British North America Act 1867, as originally enacted, in the UK Statute Law Database