Primary constitutional document of Canada
United Kingdom legislation
The Constitution Act, 1867 (), originally enacted as the British North America Act, 1867 (BNA Act), is a major part of the Constitution of Canada.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 In 1982, with the patriation of the Constitution, the British North America Acts which were originally enacted by the British Parliament, including this Act, were renamed.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.
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."
Preamble and Part I.
The act begins with a preamble declaring that the three provinces New Brunswick, Nova Scotia, and the Province of Canada (which later became 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", 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 Political scientist Rand Dyck criticized the preamble in 2000, saying it was "seriously out of date". He claimed the act "lacks an inspirational introduction".
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. Section 1 gives the short title of the act as "Constitution Act, 1867". Section 2, repealed in 1893, originally stated that all references to the Queen (then Victoria) equally apply to all her heirs and successors.
Part II: Union.
The act established the Dominion of Canada by uniting the North American British "Provinces" (colonies) of Canada, New Brunswick, and Nova Scotia. Section 3 established that the union would take effect within six months of passage of the act and Section 4 confirmed "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 listed the four provinces of the new federation. Those were formed by dividing the former Province of Canada into two: its two subdivisions, Canada West and Canada East, renamed Ontario and Quebec, respectively, become full provinces in Section 6. Section 7 confirmed that the boundaries of Nova Scotia and New Brunswick are not changed. And Section 8 provided that a national census of all provinces must be held every ten years.
Part III: Executive Power.
Section 9 confirms that all executive authority "of and over Canada is hereby declared to continue and be vested in the Queen". In section 10, the Governor General or an administrator of the government, is designated as "carrying on the Government of Canada on behalf and in the Name of the Queen". Section 11 creates the King's Privy Council for Canada. Section 12 states that the statutory powers of the executives of the former provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, and New Brunswick continue to exist, until modified by subsequent legislation. To the extent those pre-Confederation statutory powers now came within provincial jurisdiction, they could be exercised by the lieutenant governors of the provinces, either alone or by the advice of the provincial executive councils. To the extent the pre-Confederation statutory powers now came within federal jurisdiction, they could be exercised by 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 exercise their powers in various parts of Canada. The Commander-in-Chief of all armed forces in Canada continues to be vested in the King under Section 15. Section 16 declares Ottawa to be the seat of government for Canada.
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 members: 106 for Ontario, 75 for Quebec, 11 for Nova Scotia, 10 for New Brunswick, 14 for Manitoba, 36 for British Columbia, 4 for Prince Edward Island, 28 for Alberta, 14 for Saskatchewan, 7 for Newfoundland and Labrador, 1 for Yukon, 1 for the Northwest Territories, and 1 for Nunavut. The House is summoned by the governor general under Section 38. Section 39 forbids senators to sit in the Commons. Section 41 divides the provinces in electoral districts and Section 41 continues electoral laws and voting qualifications of the time, subject to revision. 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). A speaker is required to preside at all sittings of the House (46). Quorum for the house is 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. Sections 55, 56, and 57 allow the governor general to assent to in the Queen's name, withhold assent to or "reserve" for the "signification of the Queen's pleasure" any bill passed by both houses. Within two years of the governor general's royal assent to a bill, the Queen-in-Council may disallow the act; and within two years of the governor general's reservation, the Queen-in-Council may assent to the bill.
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 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 the 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). Section 68 establishes the seats of government of the first four provinces (Ontario, Quebec, Nova Scotia, New Brunswick), but also allows those provinces to change their seats of government.
Legislative power.
Ontario and Quebec.
Sections 69 and 70 establishes the Legislature of Ontario, comprising the lieutenant governor and the Legislative Assembly of Ontario, and Sections 71 to 80 establishes 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 legislatures are 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 every 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 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 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.
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 Saskatchewan Court of Appeal sided with the federal government in a 3–2 split on the "Greenhouse Gas Pollution Pricing Act", allowing an expansion of the federal government's taxation power over the provinces in the wake of the climate change crisis, concurrently as Parliament joined with other national legislatures in declaring that the nation was in a "climate emergency" on