The Constitution Act, 1867: Executive and Legislative Power

• Author: Patrick J. Monahan/Byron Shaw/Padraic Ryan
• Pages: 52-105

52

CHA PTER 3

THE

CONSTITUTION

AC T, 1867

: EXECUTIVE

AND LEGISLATIVE

POWER

A. INTRODUC TION

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.

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 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.

CONSTITUTIONA L LAW54

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 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.