Canada's Constitutional Development Before 1867

• Author: Patrick J. Monahan/Byron Shaw/Padraic Ryan
• Pages: 31-51

31

CHA PTER 2

C A NA DA’S

CONSTITUTIONAL

DEVELOPMENT

BEF OR E 1867

A. R EPRESENTATIVE AND R ESPONSIBLE

GOV ER NME NT

The Constitution Act, 18671 did not attempt to descr ibe comprehensively

the institutions of government or their manner of operation. Instead,

certain public institutions or practices that had become f‌irmly estab-

lished in the law of the British North American colonies were simply

continued by the 1867 Act. These established institutions or practices

in many cases were not explicitly referenced. The only oblique refer-

ence to this constitutional continuity was the phrase in the preamble

to the Act stating that Canada was to have a “Constitution similar in

Principle to that of the United Kingdom.” To understand what was con-

templated by this reference, it is necessary to examine the manner in

which governmental instit utions had evolved in both Great Britain and

British North America by the middle of the nineteenth century.

It is beyond the scope of this book to descr ibe fully the constitution-

al or political history of the British North American colonies. Rather,

our focus is on two constitutional developments in the late eighteenth

and early nineteenth centuries that are key to understanding the man-

ner in which the constitutional ar rangements in 1867 were intended to

operate. The f‌irst is the development of representative government and

the second is the development of responsible government.

1 (U.K.), 30 & 31 Vict., c. 3, preamble.

CONSTITUTIONA L LAW32

Representative government refers to the requirement that laws can

only be made by a legislature that is elected by the people, as opposed

to the Crown legislating through the royal prerogative. Responsible

government refers to the requirement that the powers of the Crown

can be exercised only in accordance with the advice or instr uctions of

political leaders who control a majority of votes in the legi slature. Both

of these constitutional developments had be come incorp orated into the

legal structure of the British North American colonies by 1867, and the

drafters of the 1867 Act simply assumed that they would continue in

place following Confederation.

B. REPRESE NTATI VE G OVER NMEN T

1) Indigenous Government

Before the arrival of Europeans in North America, Indigenous peoples

had developed representative political in stitutions and a body of cus-

tomary law. These Indigenous forms of government and laws sur vived

European settlement in North America. It is arguable that section 35

of the Constitution Act, 1982, which “recognized and aff‌irmed” Aborig-

inal and Treaty rights, gave some constitutional recognition to them.2

The interaction between Indigenous forms of government and those of

European settlers is a complex topic addressed in Part Five. The focus

of this chapter is on the manner in which representative political in-

stitutions were imported to North America as part of the colonial law

established under British authority.

2) French Civil Law

The earliest permanent European settlement in what is now Canada

was established by the French. Following the British conquest in 1759,

certain aspects of the legal system of the former colony of New France

were retained and incorporated into the legal framework of the colony

of Quebec. In particular, although British law governed the relations

between the state and individuals, the French civil law was retained

in respect of the legal rules governing the relations among private in-

dividuals in contract, property, and civil wrongs. This distinctive legal

framework continues in place today, with the civil law rules in Quebec

being def‌ined in the Quebec Civil Code, which traces its origin s to the

2 This argume nt and other issues with re spect to Indigenous rights a re consid-

ered in Chapter 15.