The Constitution Act, 1867: Executive and Legislative Power

AuthorPatrick J. Monahan/Byron Shaw/Padraic Ryan
AC T, 1867
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, legi slative, 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 gov-
ernment. Although the Act was rena med from the British North America
Act, 1867 to the Constitution Act, 1867 in 1982, relatively few substan-
tive 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 origin al enactment. This evolution
has occurred only i n part through formal amendment of its terms.2 One
important source of informa l change has been the interpretation and ap-
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 whic h the Act has been amended subs equent to 1867 is consid-
ered in more detai l in Chapters 5 and 6.
The Constitution Act, 1867: Executive and Legi slative Power 53
plication of the Act by both the Judicial Committee of t he Privy Council
and the Supreme Court of Canada. As shown i n later chapters, the judi-
ciary ha s played a signif‌icant role in shaping the relationship between
the federal and the provincia l 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 con sult-
ing the thousands of judicial decisions by various levels of courts t hat
have interpreted its provisions over the years.
The manner in which the Constitution Act, 1867 has evolved since
its enactment is explored in more detai l later in this book. However,
the analysis in this chapter and in Chapter 4 is i ntended 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 contemporary functioning of the Canad ian state. This
chapter focuses on executive and legisl ative 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.
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 th at
are inconsistent with its provisions, including all amendments since
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 that abolished Britain’s authority to enact law for Canada.
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 Brunswick “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 Canadian con-
stitutional order are highlighted by t his recital. First, Canada i s a federal
as opposed to a legislative union; th at is, jurisdiction is divided between
the federal government and the provincia l orders of government, each
order having constitutional recognition and signif‌icance. Second, Can-
ada 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 constitu-
tion “similar in Pr inciple” to that of the United Kingdom. The precise
meaning of this phrase is far from clear, part icularly because the Br itish
constitution is largely unwr itten. The preambular reference to the Brit-
ish constitution must mean, at the very least, that the Canadi an consti-
tution is itself par tly unwritten. The drafters of the Constitution Act, 1867
signalled th at it would be impossible to understand the actual working s
of the institutions of the Canadian state simply by reading t he terms of
the Act itsel f.
One obvious example of the unwritten character of the Canadian
constitution is the principle of responsible government, which, as dis-
cussed in Chapters 1 and 2, requires that the powers of the Crow n be
exercised on the advice of persons who enjoy the conf‌idence of the elect-
ed chamber in the legi slature. The principle of responsible government
was not explicitly referred to any where in the Constitution Act, 1867. But
responsible government had been accepted by both Br itish and colonial
politicians for approximately twenty years prior to Confederation, and
3 A preamble is not par t of the main body of a statute and t hus not binding in strict
law. Section 52(2) of the Constitution Act, 1982 (enacted as th e Canada Act 1982
(U.K.), 1982, c. 11, Sched. B.) states that any law t hat is inconsistent w ith the “pro-
visions” of the Con stitution of Canada is of no force a nd effect. One might have
assumed th at the preamble to the Constitu tion Act, 1867 is not a “provision” of the
constitution an d that, therefore, ordinar y laws cannot be held to be of no force
and effect if the y are in conf‌lict with the pre amble. However, the Supreme Court
of Canada ha s held that the preamble to the Con stitution Act, 1867 had the effect
of importing ce rtain “unwritte n constitutional princ iples” into the Canadian
constitution, a s def‌ined in s. 52(2) of the Constitution Act, 1982.

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