Canada's Constitutional Development Before 1867

AuthorPatrick J. Monahan/Byron Shaw/Padraic Ryan
BEF OR E 1867
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.
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.
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.

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