A. Introduction

Author:Patrick J. Monahan - Byron Shaw

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The Constitution Act, 18671continues to provide the basic framework within which government in Canada operates today. It establishes the basic machinery of government, defining how laws are made, administered, and enforced through the executive, legislative, and judicial organs of the state. It also establishes Canada as a federal state, with jurisdiction divided between the federal and the provincial orders of government. Although the Act was renamed from the British North America Act, 1867 to the Constitution Act, 1867 in 1982, relatively few substantive changes to its provisions were enacted at that time. Therefore, a statute that was enacted in 1867 remains the foundation on which the remainder of the Canadian constitution is constructed. Of course, the Act has evolved since the date of its original enactment. This evolution has occurred only in part through formal amendment of its terms.2One important source of informal change has been the interpretation and application of the Act by both the Judicial Committee of the Privy Council and the Supreme Court of Canada. As shown in later chapters, the judiciary has played a significant role in shaping the rela-

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tionship between the federal and the provincial governments, through its interpretation of sections 91 to 95 of the 1867 Act. It is impossible to understand the meaning and significance of the Constitution Act, 1867 without consulting the thousands of judicial decisions by various levels of courts that have interpreted its provisions over the years.

The manner in which the Constitution Act, 1867 has evolved since its enactment is explored in more detail later in this book. However, the analysis in this chapter and in Chapter 4 is intended to provide a modern as opposed to a historical perspective. The objective is to...

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