The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),
[''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14.] originally enacted as the ''British North America Act, 1867'' (BNA Act), is a major part of the
Constitution of Canada
The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
. The act created a
federal
Federal or foederal (archaic) may refer to:
Politics
General
*Federal monarchy, a federation of monarchies
*Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
dominion
The term ''Dominion'' is used to refer to one of several self-governing nations of the British Empire.
"Dominion status" was first accorded to Canada, Australia, New Zealand, Newfoundland, South Africa, and the Irish Free State at the 1926 ...
and defines much of the operation of the
Government of Canada
The government of Canada (french: gouvernement du Canada) is the body responsible for the federal administration of Canada. A constitutional monarchy, the Crown is the corporation sole, assuming distinct roles: the executive, as the ''Crown ...
, including its
federal structure, the
House of Commons
The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. ...
, the
Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
, the justice system, and the taxation system. In 1982, with the
patriation
Patriation is the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. The process was necessary because under the Statute of Westminster 1931, with Canada's agreement at the time, the Parliament o ...
of the Constitution, the
British North America Acts
The British North America Acts 1867–1975 are a series of Acts of Parliament that were at the core of the constitution of Canada. Most were enacted by the Parliament of the United Kingdom and some by the Parliament of Canada. In Canada, some ...
which were originally enacted by the
British Parliament
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative supremacy ...
, including this Act, were renamed. Although, the acts are still known by their original names in records of the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable
natural resource
Natural resources are resources that are drawn from nature and used with few modifications. This includes the sources of valued characteristics such as commercial and industrial use, aesthetic value, scientific interest and cultural value. O ...
s.
History
Preamble and Part I
![British North America Act, 1867](https://upload.wikimedia.org/wikipedia/commons/9/93/British_North_America_Act%2C_1867.jpg)
The act begins with a
preamble declaring that the three provinces
New Brunswick
New Brunswick (french: Nouveau-Brunswick, , locally ) is one of the thirteen provinces and territories of Canada. It is one of the three Maritime provinces and one of the four Atlantic provinces. It is the only province with both English and ...
,
Nova Scotia
Nova Scotia ( ; ; ) is one of the thirteen provinces and territories of Canada. It is one of the three Maritime provinces and one of the four Atlantic provinces. Nova Scotia is Latin for "New Scotland".
Most of the population are native Eng ...
, and the
Province of Canada
The Province of Canada (or the United Province of Canada or the United Canadas) was a British North America, British colony in North America from 1841 to 1867. Its formation reflected recommendations made by John Lambton, 1st Earl of Durham ...
(which later became
Ontario
Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central Ca ...
and
Quebec
Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirtee ...
) have requested to form "one
Dominion
The term ''Dominion'' is used to refer to one of several self-governing nations of the British Empire.
"Dominion status" was first accorded to Canada, Australia, New Zealand, Newfoundland, South Africa, and the Irish Free State at the 1926 ...
...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
Peter Wardell Hogg (12 March 1939 – 4 February 2020) was a New Zealand-born Canadian legal scholar and lawyer. He was best known as a leading authority on Canadian constitutional law, with the most academic citations in Supreme Court jurispru ...
wrote in ''Constitutional Law of Canada'', some have argued that, since the United Kingdom had some
freedom of expression
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
in 1867, the preamble extended this right to Canada even before the enactment of the ''
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
'' in 1982; this was a supposed basis for the
Implied Bill of Rights
The Implied Bill of Rights () is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada.
The concept of an implied bill of rights develops out of Canadian federalism. ...
.
In ''
New Brunswick Broadcasting Co. v. Nova Scotia
''New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly)'' is a leading Supreme Court of Canada decision wherein the court has ruled that parliamentary privilege is a part of the unwritten convention in the Constitution o ...
'', the leading Canadian case on parliamentary privilege, the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
grounded its 1993 decision on the preamble. Moreover, since the UK had a tradition of
judicial independence Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan inte ...
, the Supreme Court ruled in the ''
Provincial Judges Reference
The ''Reference re Remuneration of Judges of the Provincial Court (P.E.I.)'' 9973 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of pro ...
'' of 1997 that the preamble shows judicial independence in Canada is constitutionally guaranteed. Political scientist
Rand Dyck Perry Rand Dyck (born 1943 in Calgary, Alberta) is the author of the Canadian Politics: Critical Approaches textbook which is used in many Canadian universities, and taught to students studying Political Science, Law, Economics, Women's Studies, P ...
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
A charter is the grant of authority or rights, stating that the granter formally recognizes the prerogative of the recipient to exercise the rights specified. It is implicit that the granter retains superiority (or sovereignty), and that the rec ...
'' also has a
preamble.
Part I consists of just one extant section.
Section 1 gives the
short title
In certain jurisdictions, including the United Kingdom and other Westminster-influenced jurisdictions (such as Canada or Australia), as well as the United States and the Philippines, primary legislation has both a short title and a long title.
Th ...
of the act as ''Constitution Act, 1867''.
Section 2, repealed in 1893, originally stated that all references to the Queen (then
Victoria
Victoria most commonly refers to:
* Victoria (Australia), a state of the Commonwealth of Australia
* Victoria, British Columbia, provincial capital of British Columbia, Canada
* Victoria (mythology), Roman goddess of Victory
* Victoria, Seychelle ...
) equally apply to all her heirs and successors.
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,
Canada West
The Province of Canada (or the United Province of Canada or the United Canadas) was a British colony in North America from 1841 to 1867. Its formation reflected recommendations made by John Lambton, 1st Earl of Durham, in the Report on the ...
and
Canada East
Canada East (french: links=no, Canada-Est) was the northeastern portion of the United Province of Canada. Lord Durham's Report investigating the causes of the Upper and Lower Canada Rebellions recommended merging those two colonies. The new ...
, renamed
Ontario
Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central Ca ...
and
Quebec
Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirtee ...
, respectively, become full provinces in Section 6. Section 7 confirms that the boundaries of Nova Scotia and New Brunswick are 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 authority "of and over Canada is hereby declared to continue and be vested in
the Queen
In the English-speaking world, The Queen most commonly refers to:
* Elizabeth II (1926–2022), Queen of the United Kingdom and other Commonwealth realms from 1952 until her death
The Queen may also refer to:
* Camilla, Queen Consort (born 1947), ...
". In section 10, the
Governor General
Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...
or an
administrator of the government
An administrator (administrator of the government or officer administering the government) in the constitutional practice of some countries in the Commonwealth is a person who fulfils a role similar to that of a governor or a governor-general ...
, is designated as "carrying on the Government of Canada on behalf and in the Name of the Queen". Section 11 creates the
Queen's Privy Council for Canada
The 's Privy Council for Canada (french: Conseil privé du Roi pour le Canada),) during the reign of a queen. sometimes called Majesty's Privy Council for Canada or simply the Privy Council (PC), is the full group of personal consultants to the ...
. 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
A lieutenant governor, lieutenant-governor, or vice governor is a high officer of state, whose precise role and rank vary by jurisdiction. Often a lieutenant governor is the deputy, or lieutenant, to or ranked under a governor — a "second-in-comm ...
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
The King-in-Council or the Queen-in-Council, depending on the gender of the reigning monarch, is a constitutional term in a number of states. In a general sense, it would mean the monarch exercising executive authority, usually in the form of ap ...
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 Queen
In the English-speaking world, The Queen most commonly refers to:
* Elizabeth II (1926–2022), Queen of the United Kingdom and other Commonwealth realms from 1952 until her death
The Queen may also refer to:
* Camilla, Queen Consort (born 1947), ...
under Section 15. Section 16 declares Ottawa to be the seat of government for Canada.
Part IV: Legislative Power
The
Parliament of Canada
The Parliament of Canada (french: Parlement du Canada) is the federal legislature of Canada, seated at Parliament Hill in Ottawa, and is composed of three parts: the King, the Senate, and the House of Commons. By constitutional convention, the ...
comprises
the King and two chambers (the
House of Commons of Canada
The House of Commons of Canada (french: Chambre des communes du Canada) is the lower house of the Parliament of Canada. Together with the Crown and the Senate of Canada, they comprise the bicameral legislature of Canada.
The House of Common ...
and the
Senate of Canada
The Senate of Canada (french: region=CA, Sénat du Canada) is the upper house of the Parliament of Canada. Together with the Crown and the House of Commons, they comprise the bicameral legislature of Canada.
The Senate is modelled after the B ...
), as created by section 17. Section 18 defines its powers and privileges as being no greater than those of the
British parliament
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative supremacy ...
. 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
The Maritimes, also called the Maritime provinces, is a region of Eastern Canada consisting of three provinces: New Brunswick, Nova Scotia, and Prince Edward Island. The Maritimes had a population of 1,899,324 in 2021, which makes up 5.1% of Ca ...
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)
''Edwards v Canada (AG)''also known as the ''Persons Case'' (french: l'Affaire « personne »)is a famous Canadian constitutional case that decided in 1929 that women were eligible to sit in the Senate of Canada. The legal case was put forward b ...
'' was interpreted as excluding women), and the first group of senators was proclaimed under section 25. Section 26 allows
the Crown
The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
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
Member may refer to:
* Military jury, referred to as "Members" in military jargon
* Element (mathematics), an object that belongs to a mathematical set
* In object-oriented programming, a member of a class
** Field (computer science), entries in ...
: 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
An electoral district, also known as an election district, legislative district, voting district, constituency, riding, ward, division, or (election) precinct is a subdivision of a larger state (a country, administrative region, or other polity ...
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
In the Westminster system (and, colloquially, in the United States), a money bill or supply bill is a bill that solely concerns taxation or government spending (also known as appropriation of money), as opposed to changes in public law.
Co ...
" (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
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in other ...
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 Canadian 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
capitals of the first four provinces (Ontario, Quebec, Nova Scotia, New Brunswick), but also allows those provinces to change their capitals.
Legislative power
Ontario and Quebec
Sections
69 and 70 establishes the Legislature of Ontario, comprising the Lieutenant Governor and the
Legislative Assembly of Ontario
The Legislative Assembly of Ontario (OLA, french: Assemblée législative de l'Ontario) is the legislative chamber of the Canadian province of Ontario. Its elected members are known as Members of Provincial Parliament (MPPs). Bills passed by ...
, and Sections 71 to 80 establishes the
Parliament of Quebec
The Quebec Legislature (officially Parliament of Quebec, french: Parlement du Québec) is the legislature of the province of Quebec, Canada. The legislature is made of two elements: the King of Canada, represented by the lieutenant governor of Q ...
, which at the time comprised the Lieutenant Governor, the
Legislative Assembly of Quebec (renamed in 1968 to the
National Assembly of Quebec
The National Assembly of Quebec (officially in french: link=no, Assemblée nationale du Québec) is the legislative body of the province of Quebec in Canada. Legislators are called MNAs (Members of the National Assembly; french: link=no, déput ...
), 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 Section 92(13) of the ''Constitution Act, 1867'', also known as the property and civil rights power, grants the provincial legislatures of Canada the authority to legislate on:
It is one of three key residuary powers in the ''Constitution Act, 18 ...
, which so far has not been realized. Sections 94A and 95, meanwhile, address matters of shared jurisdiction, namely
old age pension
A pension (, from Latin ''pensiō'', "payment") is a fund into which a sum of money is added during an employee's employment years and from which payments are drawn to support the person's retirement from work in the form of periodic payments ...
s (section 94A) and agriculture and immigration (section 95).
Peace, order and good government
Section 91 authorizes
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
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 government
A state government is the government that controls a subdivision of a country in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, ...
s, 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)'',
937
Year 937 ( CMXXXVII) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* A Hungarian army invades Burgundy, and burns the city of Tournus. Then they go southward ...
AC 326 (PC)).
In 2019, the
Saskatchewan Court of Appeal
The Court of Appeal for Saskatchewan (SKCA) is a Canadian appellate court.
Jurisdiction and structure
The Saskatchewan Court of Appeal is the highest court in the province of Saskatchewan, Canada. There are 8 official judicial positions, inc ...
sided with the federal government in a 3–2 split on the
Greenhouse Gas Pollution Pricing Act
The ''Greenhouse Gas Pollution Pricing Act'' (french: Loi sur la tarification de la pollution causée par les gaz à effet de serre) is a Canadian federal law establishing a set of minimum national standards for carbon pricing in Canada to meet ...
, 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 17 June.
In
Grant Huscroft
Grant Huscroft is a Canadian jurist and legal scholar, who currently serves as a justice of the Court of Appeal for Ontario. Biography
Huscroft was educated at the University of Western Ontario (BA 1980), Queen's University (LL.B. 1984), and th ...
's dissenting opinion on the
Court of Appeal for Ontario
The Court of Appeal for Ontario (frequently referred to as the Ontario Court of Appeal or ONCA) is the appellate court for the province of Ontario, Canada. The seat of the court is Osgoode Hall in downtown Toronto, also the seat of the Law Societ ...
, he provides that "counsel for Canada conceded that the act was not passed on the basis that climate change constitutes an emergency".
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".
Aboriginal Affairs and Northern Development Canada
Aborigine, aborigine or aboriginal may refer to:
*Aborigines (mythology), in Roman mythology
* Indigenous peoples, general term for ethnic groups who are the earliest known inhabitants of an area
*One of several groups of indigenous peoples, see ...
(AANDC), formerly known as Indian and Northern Affairs Canada (INAC),
has been the main federal organization exercising this authority.
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
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...
.
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 "
property
Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
and civil rights in the province". In practice, this power has been read broadly to give the provinces authority over numerous matters such as professional trades,
labour relations
Labor relations is a field of study that can have different meanings depending on the context in which it is used. In an international context, it is a subfield of labor history that studies the human relations with regard to work in its broadest ...
, 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 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
In Canadian Constitutional law, interjurisdictional immunity is the legal doctrine that determines which legislation arising from one level of jurisdiction may be applicable to matters covered at another level. Interjurisdictional immunity is an ex ...
. For instance, the federal ''
Divorce Act'' is valid legislation, even though the ''Divorce Act'' has some incidental effects on
child custody
Child custody is a legal term regarding '' guardianship'' which is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care. Child custody consists of ''legal custody'', which is the righ ...
, 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
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
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 of Appeal (french: Cour d'appel fédérale) is a Canadian appellate court that hears cases concerning federal matters.
History
Section 101 of the Constitution Act, 1867 empowers the Parliament of Canada to establish "addit ...
, the
Federal Court, the
Tax Court of Canada
The Tax Court of Canada (TCC; french: Cour canadienne de l'impôt), established in 1983 by the '' Tax Court of Canada Act'', is a federal superior court which deals with matters involving companies or individuals and tax issues with the Governme ...
and the
Court Martial Appeal Court of Canada
The Court Martial Appeal Court of Canada (CMAC) (french: Cour d'appel de la cour martiale du Canada) hears appeals from Courts-martial of Canada (" courts martial").
In Canada, courts martial are presided over by independent military judges fro ...
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 court
In common law systems, a superior court is a court of general jurisdiction over civil and criminal legal cases. A superior court is "superior" in relation to a court with limited jurisdiction (see small claims court), which is restricted to civil ...
s, 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
Inherent jurisdiction is a doctrine of the English common law that a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other cou ...
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
Exclusive jurisdiction exists in civil procedure if one court has the power to adjudicate a case to the exclusion of all other courts. The opposite situation is concurrent jurisdiction (or non-exclusive jurisdiction) in which more than one court ...
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 ''
Reference Re Residential Tenancies Act (Ontario)''. 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 ''Sobeys Stores v. Yeomans and Labour Standards Tribunal (NS)'' 9891 S.C.R. 238 is a leading Supreme Court of Canada case on determining if a tribunal has the authority to hear a dispute, and more generally, the interpretation of section 96 of the C ...
'' (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 ''Nova Scotia (Workers' Compensation Board) v Martin; Nova Scotia (Workers' Compensation Board) v Laseur'', 0032 S.C.R. 504, 2003 SCC 54, is a leading Supreme Court of Canada decision. The Court re-examined the authority of tribunals to hear consti ...
'' (2003) the Supreme Court re-articulated the test for constitutional jurisdiction from ''
Cooper v. Canada''. 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
for the jurisdiction of the ''Charter''.
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
Fiscal union is the integration of the fiscal policy of nations or states. In a fiscal union, decisions about the collection and expenditure of taxes are taken by common institutions, shared by the participating governments. A fiscal union does not ...
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
A customs union is generally defined as a type of trade bloc which is composed of a free trade area with a common external tariff.GATTArticle 24 s. 8 (a)
Customs unions are established through trade pacts where the participant countries set up ...
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
bill of rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
and judicial theory on an
Implied Bill of Rights
The Implied Bill of Rights () is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada.
The concept of an implied bill of rights develops out of Canadian federalism. ...
did not emerge until the 20th century.
Canadian constitutional scholar
Peter Hogg
Peter Wardell Hogg (12 March 1939 – 4 February 2020) was a New Zealand-born Canadian legal scholar and lawyer. He was best known as a leading authority on Canadian constitutional law, with the most academic citations in Supreme Court jurispru ...
identified several rights provided in various sections of the act that he termed the "small bill of rights": section 50 limits the duration of a
House of Commons of Canada
The House of Commons of Canada (french: Chambre des communes du Canada) is the lower house of the Parliament of Canada. Together with the Crown and the Senate of Canada, they comprise the bicameral legislature of Canada.
The House of Common ...
to a maximum of five years; sections 51 and 52 require readjustment of seats in the House of Commons following each census to guarantee
proportionate representation
Proportional representation (PR) refers to a type of electoral system under which subgroups of an electorate are reflected proportionately in the elected body. The concept applies mainly to geographical (e.g. states, regions) and political divis ...
of all provinces; section 86 requires Parliament and all legislatures sit at least once per year; section 93 provides, notwithstanding provincial jurisdiction over
education in Canada
Education in Canada is for the most part provided publicly, and is funded and overseen by provincial, territorial and local governments. Education is within provincial jurisdiction and the curriculum is overseen by the province. Education in C ...
, the right to
separate schools for either Protestant or Catholic minorities; section 99 establishes a right for judges to serve during good behaviour unless removed by the governor general under advice from Parliament;
section 121 prohibits customs duties and tariffs on inter-provincial trade;
section 125 exempts governments in Canada from paying most taxes; and section 133 provides for bilingualism in the legislative and judicial branches of the federal and Quebec governments (see below).
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. 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.
[''Att. Gen. of Quebec v. Blaikie'' et al., ]979
Year 979 ( CMLXXIX) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place Byzantine Empire
* March 24 – Second Battle of Pankaleia: An Ibero-Byzantine expeditionary ...
2 SCR 1016 at 1029.
These rights are duplicated in respect to the federal government, but not Quebec, and extended to New Brunswick, by
sections 17,
18 and
19 of the Charter of Rights;
Sections 16 and
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 and creation of the Dominion of Canada on 1 July 1867 is observed annually as
Canada Day
Canada Day (french: Fête du Canada), formerly known as Dominion Day (french: Fête du Dominion), is the national day of Canada. A federal statutory holiday, it celebrates the anniversary of Canadian Confederation which occurred on July 1, 18 ...
(known as Dominion Day prior to 1982) and is celebrated as Canada's
national holiday.
References
Citations
Notes
Further reading
*
*
*
*
*
* ; Guide to historiography
Primary sources
*
External links
*
*, as originally enacted, in the
UK Statute Law Database
legislation.gov.uk, formerly known as the UK Statute Law Database, is the official web-accessible database of the statute law of the United Kingdom, hosted by The National Archives. It contains all primary legislation in force since 1267 and a ...
*
{{Constitution of Canada, confederation
Constitution Act 1867
1867 in Canada
1867 in Canadian law
Canadian Confederation
Aboriginal title in Canada
Acts of the Parliament of the United Kingdom concerning Canada
United Kingdom Acts of Parliament 1867
1867 establishments in Canada
1867 establishments in the British Empire
July 1867 events
1867 in politics