The Constitution Act, 1867: Executive and Legislative Power

• Author: Patrick J. Monahan, Byron Shaw
• Pages: 53-106

53

CHA PTER 3

THE

CONSTITUTION

AC T, 1867

: EXECUTIVE

AND LEGISLATIVE

POWER

A. INT RODUCTION

The Constitution Act, 18671 continues to provide the basic framework

within which government in Canada operates today. It establishes the

basic machinery of government, def‌ining how laws are made, admin-

istered, and enforced through the executive, legislative, and judicial

organs of the state. It also establishes Canada as a federal st ate, with

jurisdiction div ided 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. There-

fore, a statute that was enacted in 1867 remains t he foundation on

which the remainder of the Can adian constitution is constr ucted. Of

course, the Act has evolved since the date of its original enactment.

This evolution has occurred only in par t through formal amendment of

its ter ms.2 One important source of informal change has been the inter-

pretation 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 judiciar y has played a signif‌icant role in shaping t he rela-

1 (U.K.), 30 & 31 Vict., c. 3. As discuss ed in Chapter 1, the Constitution Act, 1867

was origin ally enacted by the Brit ish Parliament as the Brit ish North America

Act, 1867 and was renamed in 1982.

2 The manner in wh ich the Act has been amended subs equent to 1867 is con-

sidered in more deta il in Chapters 5 and 6.

CONSTITUTIONA L LAW

54

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 meani ng and signif‌icance of the Constitution Act, 1867

without consulting the thousa nds of judicial decisions by various lev-

els of courts that have inter preted 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

provide the reader with an int roductory understanding of how the Act

structures the contemporar y functioning of the Canadian state. This

chapter focuses on executive and legislative power as def‌ined in the

Constitution Act, 1867. The overview of the Act is completed in Chapter

4 with a description of the Act’s provisions dealing with judicial power

and the federal structure.

B. THE

CONSTIT UTION ACT, 1867

IS

ENTRENCHED

The Constitution Act, 1867 is included within t he def‌inition of the Con-

stitution of Canada set out in section 52 of the Constitution Act, 1982.

The inclusion of the Constitution Act, 1867 in this def‌inition has t wo

important consequences, a s discussed in Chapter 1. First, any laws that

are inconsistent with its prov isions, including all amendments si nce

1867, will be of no force and effect. The Constitution Act, 1867 is part

of the “supreme law of Canada.” Second, the Act is subject to a spe-

cial amending procedure: it can only be amended using the amending

procedures set out in the Constitution of Canada. The nature of that

amending procedure will be considered in more detail in Chapter 6.

Generally, since 1982, amendments to the Constitution Act, 1867 have

required the agreement of the federal Sen ate, the House of Commons,

and a certain number of the provinces. Before April 1982, the Act was

amendable by the British Parlia ment at Westminster, but this British

authority was terminated through the Canada Act 1982, the U.K. stat-

ute which abolished Britain’s authority to enact law for Canad a.

The Constitution Act, 1867: Executive and Legi slative Power

55

C. A CONSTITUTION “SIMILAR IN PRINCIPLE”

It is customary for legislation to include a preamble, in which certain

background facts or circum stances are recited or noted.3 The f‌irst recital

of the preamble to the Constitution Act, 1867 states that the province s

of Canada, Nova Scotia, and New Brun swick “have expressed t heir De-

sire to be federally united into One Domin ion under the Crown of the

United Kingdom … with a Constitution similar in Principle to that

of the United Kingdom.” Three fundamental aspects of the Ca nadian

constitutional order are highlighted by t his recital. First, Canada is a

federal as opposed to a legislative un ion; that is, jurisdiction is divided

between the federal government and the provincial orders of govern-

ment, each order having constitutional recognition and signif‌icance.

Second, Canada is “one Dominion under the Crown of the United

Kingdom.” That is, Canada is a constitutional monarchy, as opposed

to a republic, and the Crown is the formal head of state. Third, Canada

has a constitution “similar in Principle” to that of the United King-

dom. The precise meaning of this phrase is far from clear, particularly

because the Briti sh constitution is largely unwritten. The preambul ar

reference to the British constitution must mean, at the very least, that

the Canadian constitution is itself part ly unwritten. The drafters of the

Constitution Act, 1867 signalled that it would be impossible to under-

stand the actual workings of the institutions of the Canadian state sim-

ply by reading the terms of the Act itself.

One obvious example of the unwritten character of the Canadia n

constitution is the principle of responsible government, which, as dis-

cussed in Chapters 1 a nd 2, requires that the powers of the Crow n be

exercised on the advice of persons who enjoy the conf‌idence of the

elected chamber in the legi slature. The principle of responsible gov-

ernment was not explicitly referred to anywhere in the Constitu tion

Act, 1867. But responsible government had been accepted by both Brit-

3 A preamble is not par t of the main body of a statute a nd thus not binding in str ict

law. Section 52(2) of the Constitution Act, 1982 (enacted as t he Canada Act 1982

(U.K.), 1982, c. 11, Sched. B.) states that any law t hat is inconsistent w ith the

“provisions” of t he Constitution of Canada i s of no force and effect. One might

have assume d that the preamble to the Const itution Act, 1867 is not a “provision”

of the constitut ion and that, therefore, ordin ary laws cannot be held t o be of no

force and effect if the y are in conf‌lict with the pre amble. However, the Supreme

Court of Canad a has held that the pream ble to the Constitution Act, 1867 had

the effect of impor ting certain “unw ritten constitutiona l principles” into the

Canadia n constitution, as def‌ined i n s. 52(2) of the Constitution Act, 1982. The

implications of t he Supreme Court’s interpretation of t he preamble are discus sed

brief‌ly in the se ction on parliamentar y privilege below and in det ail in Chapter 6.