The CONSTITUTION ACT,
* 4 Part IV "Legislative Power"
* 4.1 Senate * 4.2 House of Commons * 4.3 Money votes and royal assent
* 5 Part V "Provincial Constitutions"
* 5.1 Executive power
* 5.2 Legislative power
* 5.3 Other
* 6 Part VI: "Division of Powers"
Peace, order and good government
* 6.2 First Nations, Inuit and Metis
* 6.3 Criminal law
Property and civil rights
* 6.5 Marriage
* 6.6 Works and undertakings
* 7 Part VII "Judicature"
* 7.1 Parliament\'s power to create federal courts * 7.2 Provincial power to create courts * 7.3 Section 96 courts * 7.4 Constitutional jurisdiction
* 8 Part VIII "Revenues; debts, assets; taxation" * 9 Part IX "Miscellaneous" * 10 Part X "Intercolonial railway" * 11 Part XI "Admission of other colonies"
* 12 Small bill of rights
* 12.1 Language rights
* 15 Further reading
* 15.1 Primary sources
* 16 External links
PREAMBLE AND PART I "PRELIMINARY"
The Act begins with a preamble that declares that the three provinces
The preamble to the Constitution Act,
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"
The British North America Act,
Section 5 lists the four provinces of the new federation. These are
formed by dividing the former Province of Canada, into two; its two
PART III "EXECUTIVE POWER"
Section 9 confirms that all executive powers remain with the Queen ,
as represented by the governor general or an administrator of the
government , as stated in Section 10. Section 11 creates the Queen\'s
Privy Council for
PART IV "LEGISLATIVE POWER"
The Parliament of
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
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.
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 68, but the Section also allows those provinces to change their capitals.
Sections 69 and 70 established the Legislature of Ontario, comprising
the lieutenant governor and the Legislative Assembly of
Section 88 simply extends the pre-Union constitutions of those provinces into the post-Confederation era.
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"
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
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
FIRST NATIONS, INUIT AND METIS
Main article: Aboriginal peoples in
Section 91(24) of the Constitution Act,
See Section Twenty-four of the Canadian Charter of Rights and Freedoms for jurisdiction of the Charter.
PART VIII "REVENUES; DEBTS, ASSETS; TAXATION"
This Part lays out the financial functioning of the government of
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
PART X "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
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
Section 133 allowed bilingualism in both the federal Parliament and
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.
* ^ A B Constitution Act,
* Gwyn, Richard J. Nation Maker: Sir John A. Macdonald: His Life,
Our Times (2011); 688pp excerpt and text search
* WH McConnell, Commentary on the British North America Act
(Toronto: Macmillan of Canada, 1977).
* Morton, W.L. The Critical Years: The Union of British North
America, 1857-1873 (1968)
* Riddell, William Renwick. The
Constitution of Canada
* Browne, G. P., ed. Documents on the Confederation of British North America (2nd ed., McGill-Queen's University Press, 2009), 377pp; primary