Contents:
Constitution Act of 1867 (Formerly known as the British North America Act, 1867)
Main Issues
- The base document of the Canadian Constitution.
- United Upper Canada (Ontario), Lower Canada (Quebec), Nova Scotia and New Brunswick creating the Dominion of Canada.
- Created a U.K. style parliament: a House of Commons and a Senate.
- Section 56 allowed for a Power of Disallowance which gave the Governor General the right to revoke a federal law within two years after it was enacted (In the case of a province, the Lieutenant Governor had one year).
- Section 57 permitted the Governor General to withhold assent to a bill for a period of two years, after which the legislation would not become law (Again, in the case of a province, the Lieutenant Governor had one year).
- Section 90 applied sections 53-57 to the provinces.
- Section 91 provided for federal powers, while section 92 laid out the powers for the provinces.
- Section 93 guaranteed denominational education, as well as education in general to be the jurisdiction of the provinces.
- Neither a domestic amending formula nor a ‘bill of rights’ included.
- Schedule 6 was inserted by the Constitution Act, 1982 to give the provinces juridiction over the environment.
Description of the Constitution Act, 1867
Name given to Canada’s main constitutional document. The Constitution Act, 1867 is a British statute passed in 1867 for two purposes: to divide the United Province of Canada into two provinces – Quebec and Ontario – and to unite four of the British North American colonies into a federal system. The change in constitution was effected following a series of conferences, in Charlottetown, Quebec and London through which the several colonies made their desires and aspirations known. As such, it was the first time in their history that Canadians were given a predominant voice in constitution making. The Act originally contained 147 articles, many of which have either fallen into disuse or have been abrogated since. It is divided into eleven parts: I. Preliminary (art. 1-2); II. Union (art. 3-8); III. Executive power (art. 9-16); IV. Legislative power (art. 17-57); Provincial Constitution (art. 58-90); VI. Distribution of Legislative powers (art. 90-96); VII. Judicature (art. 96-101); VIII. Revenues, Debts, Assets, Taxation (art. 102-126); IX. Miscellaneous Provisions (art. 127-144); X. Intercolonial Railway (art. 145); XI. Admission of other colonies (art. 146-147). The name Constitutional Act is also given to a series of amendments to the original document. Such amendments are called Constitution Act followed by the relevant date for the amendment (ex. Constitution Act, 1871 etc.).
(© 2001 Claude Bélanger, Marianopolis College)
Constitution of Canada, Major Elements Documents: Constitution Act of 1867
In 1866 representatives from what are now the provinces of Nova Scotia, New Brunswick, Ontario, and Québec agreed to create the Dominion of Canada. The union’s members wanted to build a strong economy and counteract expansionism by the United States. This agreement was passed into law by the British Parliament as the British North America Act of 1867, later renamed the Constitution Act of 1867.
The Constitution Act of 1867 had five key features. First, it unified the Canadian colonies. (Since 1867 six provinces and three territories have joined the original four provinces in the union.) Second, the act established executive, legislative, and judicial branches of government. Third, it established an independent judiciary. Fourth, it guaranteed minority language rights. Fifth, and most importantly, it constructed Canada as a federal state. This meant that there were two levels of government: a central government based in Ottawa, Ontario, Canada, and the governments of the various provinces.
The original intent of the “fathers of confederation” was that most power and authority would be given to the central government, with only minor powers retained by the provinces. The Constitution Act of 1867 authorized the federal government to make laws concerning “peace, order and good government,” criminal law, trade and commerce, taxation, the judiciary, the military, and banking. The primary focus of provinces’ authority under the Constitution Act was “property and civil rights within the province” and “matters of a mainly local or private nature.” This attempt to centralize power in the federal government ultimately failed. Today, Canada is recognized as one of the most decentralized federal nations in the world.
One significant problem with the Constitution Act of 1867 was that it required any amendments to the Canadian constitution to be approved by the British government. It was very difficult to modify the constitution to keep pace with the changing needs of Canadian society. These problems were ultimately resolved by the Constitution Act of 1982. (1)
In this Section
- Constitution
- Constitution Origins
- Constitution Major Elements
- Constitution Documents
- Constitution Act of 1867
- Constitution Act of 1982
- Constitution Conventions
- Constitution Interpretation and Enforcement