Constitution Act, 1867
This article needs additional citations for verification. (June 2011) |
1 July 1867 | |
Other legislation | |
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Relates to | Canada Act 1982 |
Status: Amended | |
Text of statute as originally enacted | |
Revised text of statute as amended |
The Constitution Act, 1867 (French: Loi constitutionnelle de 1867),[1] originally enacted as the British North America Act, 1867 (BNA Act), is a major part of the Constitution of Canada. 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. In 1982, with the patriation of the Constitution, the British North America Acts which were originally enacted by the British Parliament, including this Act, were renamed. However, the acts are still known by their original names in records of the United Kingdom. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.[1]
The long title is "An Act for the Union of Canada, Nova Scotia and New Brunswick, and the Government Thereof; and for Purposes Connected Therewith."
History
Preamble and Part I
The act begins with a
The preamble to the act is not the Constitution of Canada's only preamble. The Charter also has a preamble.
Part I consists of just one extant section.
Part II: Union
The act establishes the Dominion of Canada by uniting 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 confirms "Canada" as the name of the country (and the word "Canada" in the rest of the act refers to the 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,
Part III: Executive Power
Section 9 confirms that all executive authority "of and over Canada is hereby declared to continue and be vested in
Part IV: Legislative Power
The Parliament of Canada comprises the King and two chambers (the House of Commons of Canada and the Senate of Canada), as created by section 17. Section 18 defines its powers and privileges 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.
Senate
The Senate has 105 senators (Section 21), most of whom represent (Section 22) one of four equal divisions: Ontario, Quebec, the Maritime Provinces and the Western Provinces (at the time of the Union, there were 72 senators). Section 23 lays out the qualifications to become a senator. Senators are appointed by the governor general under Section 24 (which until the 1929 judicial decision in Edwards v Canada (AG) was interpreted as excluding women), and the first group of senators was proclaimed under section 25. Section 26 allows the Crown to add four or eight senators at a time to the Senate, divided among the divisions, 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 of 24 per division. The maximum number of senators was set at 113, in Section 28. Senators are appointed for life (meaning until age 75 since 1965), under Section 29, though they can resign under Section 30 and 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 is (initially) set at 15 senators by Section 35, and voting procedures are set by Section 36.
House of Commons
The composition of the Commons, under Section 37, consists of 308
Money votes and royal assent
"
Part V: Provincial Constitutions
The basic governing structures of the provinces are laid out in Part V of the act. (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
Legislative power
Ontario and Quebec
Sections
Nova Scotia and New Brunswick
Section 88 simply extends the pre-union constitutions of those provinces into the post-Confederation era.
Other
Section 90 extends the provisions regarding money votes, royal assent, reservation and disallowance, as established for the federal Parliament to the provincial legislatures but with the governor general in the role of the Queen-in-Council.
Part VI: Division of Powers
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 a law, with section 91 listing matters of federal jurisdiction and section 92 listing matters of provincial jurisdiction. Sections 92A and 93 and 93A 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
Peace, order and good government
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 a delimited federal competency like those listed under section 91 (see e.g. AG Canada v AG Ontario (Labour Conventions), [1937] AC 326 (PC)).
In 2019, the
First Nations, Inuit and Métis
Section 91(24) of the act provides that the federal government has the legislative jurisdiction for "Indians and lands reserved for the Indians".
Criminal law
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 powers 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
Section 92(13) gives the Provinces the exclusive power to make law related to "
Marriage
Section 91(26) gives the federal government power over divorce and marriage. On this basis, Parliament can legislate on the substantive law of marriage and divorce. However, the provinces have power over the procedural law governing 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
Section 92(10) allows the federal government to declare any "works or undertakings" to be of national importance, and thereby remove them from provincial jurisdiction.
Education (Sections 93 and 93A)
Sections 93 and 93A give the Provincial Provinces power over the competency of education, but there are significant restrictions designed to protect minority religious rights. This is due that it was created during a time when there was a significant controversy between Protestants and Catholics in Canada over whether schools should be parochial or non-denominational. Section 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.
Old Age Pensions (Section 94A)
Under Section 94A, the federal and provincial governments share power over Old Age Pensions. Either order of government can make laws in this area, but in the case of a conflict, provincial law prevails.
Agriculture and Immigration (Section 95)
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
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.[11] 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 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 validate the jurisdiction of a federal or provincial tribunal it must satisfy a three-step inquiry first outlined in
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
See
Part VIII: Revenues; debts, assets; taxation
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 establishes the tradition of the federal government supporting the provinces through fiscal transfers (Section 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 132 gives the federal Parliament the legislative power to implement treaties entered to by the British government on behalf of the Empire. With the acquisition of full sovereignty by Canada, this provision has limited effect.
Section 133 establishes English and French as the official languages of the Parliament of Canada and the Legislature of Quebec. Either language can be used in the federal Parliament and the National Assembly of Quebec. All federal and Quebec laws must be enacted in both languages, and both language versions have equal authority.
Part X: Admission of Other Colonies
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 upon joining Confederation.
Small bill of rights
The act does not include a written
Canadian constitutional scholar
Many of these rights were repeated or expanded in sections 4, 5, 16, 17, 18, 19, and 20 of the Charter. Section 29 of the Charter does not repeat or establish new rights for separate schools but reaffirms the right to separate schools provided under the 1867 Act.
Language rights
Although the act does not establish English and French as Canada's official languages, it does provide some rights for the users of both languages in respect of some institutions of the federal and Quebec governments.
Section 133 allows bilingualism in both the federal Parliament and the Quebec legislature, allows for records to be kept in both languages, and allows 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.[13] 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.[14]
These rights are duplicated in respect to the federal government, but not Quebec, and extended to New Brunswick, by
Canada Day
The anniversary of the act's entry into force and creation of the Dominion of Canada on 1 July 1867 is observed annually as Canada Day (known as Dominion Day prior to 1982) and is celebrated as Canada's national holiday.
References
Citations
- ^ a b The Constitution Act, 1867, 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14.
- ^ "Constitution Act, 1867". Justice Laws Website. Department of Justice Canada. March 12, 2019. Retrieved March 21, 2019.
- ^ Hogg, Peter W. (2003). Constitutional Law of Canada (2003 student ed.). Toronto: Thomson Canada. p. 686.
- ^ [1993] 1 SCR 319.
- ^ Dyck, Rand (2000). Canadian Politics: Critical Approaches (3rd ed.). Toronto: Nelson Thomson Learning. p. 374.
- ^ "Sask. carbon tax challenge: SK Appeal Court rules in Ottawa's favour". Regina Leader-Post. May 3, 2019. Retrieved May 23, 2019.
- ^ "National climate emergency declared by House of Commons". Global News, a division of Corus Entertainment Inc. June 17, 2019.
- ^ "CITATION: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544". Court of Appeal for Ontario. June 28, 2019.
- ^ Aboriginal Affairs and Northern Development Canada (June 2011). "Change to the Department's Name". Archived from the original on January 14, 2013.
- ^ Office of the Auditor General of Canada. "Chapter 4: Programs for First Nations on Reserves" (PDF). 2011 June Status Report of the Auditor General of Canada (Report). p. 4. Retrieved January 12, 2013.
- ^ Supreme Court Act, R.S.C. 1985, c. S-26, s. 3
- ^ Hogg, Peter W. (2003). Constitutional Law of Canada (2003 Student ed.). Toronto: Thomson Canada. p. 682.
- ^ Att. Gen. of Quebec v. Blaikie et al., [1979] 2 SCR 1016.
- ^ Att. Gen. of Quebec v. Blaikie et al., [1979] 2 SCR 1016 at 1029.
Notes
- short titlewas conferred on this Act by section 1 of this Act.
- ^ The first written bill of rights at the federal level was the Canadian Bill of Rights in 1960, a federal statute. A constitutional bill of rights was not introduced until the 1982 enactment of the Canadian Charter of Rights and Freedoms in the Constitution Act, 1982
Further reading
- Gwyn, Richard J. (2011). Nation Maker—Sir John A. Macdonald: His Life, Our Times. Mississauga, Ontario: Random House Canada.
- Kennedy, P.M. (June 15, 1937). "The British North America Act: Past and Future". Canadian Bar Review. XV (6): 393–400.
- McConnell, W. H (1977). Commentary on the British North America Act. Toronto: Macmillan of Canada.
- Morton, W. L (1968). The Critical Years: The Union of British North America, 1857–1873. s: McClelland & Stewart.
- Riddell, William Renwick (1917). The Constitution of Canada in its History and Practical Working. New Haven: Yale University Press.
- Taylor, Martin Brook; Doug Owram (1994). Canadian History: Beginnings to Confederation vol. 1. University of Toronto Press. ISBN 0-8020-5016-6.; Guide to historiography
Primary sources
- Browne, G. P. (2009). Documents on the Confederation of British North America (2nd ed.). McGill-Queen's University Press.
External links
- Constitution Act, 1867
- British North America Act, 1867, as originally enacted, in the UK Statute Law Database
- Digital reproduction of the British North America Act 1867 on the Parliamentary Archives catalogue