Constitution Act, 1867

Introduction

The Constitution Act, 1867 (originally enacted as the British North America Act, 1867) is the foundational statute of the Canadian federation. Passed by the Imperial Parliament at Westminster as 30 & 31 Vict., c. 3, it received royal assent on March 29, 1867, and came into force on July 1, 1867, creating the Dominion of Canada from the united provinces of Canada (now Ontario and Quebec), Nova Scotia, and New Brunswick. It remains in force as the supreme law of Canada, subject to the Constitution Act, 1982, and continues to structure the basic architecture of Canadian government.

Historical Context and Confederation

The Constitution Act, 1867 was the product of the Charlottetown (September 1864) and Quebec (October 1864) Conferences, culminating in the London Conference of December 1866 — January 1867. The Fathers of Confederation, led by Sir John A. Macdonald, Sir George-Étienne Cartier, and others, sought to create a federal union that would balance the need for a strong central government with the preservation of regional identities. The inspiration for Canadian federalism drew partly from the American model but deliberately concentrated greater authority in the central government — a reaction to the American Civil War, which many saw as resulting from excessive state sovereignty. The Preamble to the Act expresses the desire of the four original provinces to be “federally united into One Dominion” under the Crown, “with a Constitution similar in Principle to that of the United Kingdom.”

The Division of Powers

The division of legislative authority between Parliament and the provincial legislatures is the Constitution Act, 1867’s most enduring feature. Section 91 confers on the federal Parliament the power to make laws for “the Peace, Order, and good Government of Canada” (the POGG clause) in relation to all matters not exclusively assigned to the provinces, followed by a non-exhaustive list of 31 enumerated classes of subjects. These include the criminal law power (s. 91(27)), which grants Parliament exclusive jurisdiction over criminal law and procedure, including the definition of criminal offences and the prescription of penalties; the trade and commerce power (s. 91(2)), encompassing interprovincial and international trade, as well as general trade regulation affecting the whole dominion; banking and currency (ss. 91(15)–(20)), ensuring a unified monetary system; navigation and shipping (s. 91(10)), covering maritime transportation and federal works; Indians and lands reserved for the Indians (s. 91(24)), the foundation of federal jurisdiction over Indigenous peoples; and marriage and divorce (s. 91(26)).

Section 92 enumerates sixteen classes of subjects subject to exclusive provincial jurisdiction. The most significant are the property and civil rights power (s. 92(13)), which has been interpreted broadly by the courts to encompass contracts, torts, labour relations, consumer protection, securities regulation, and most private law matters; direct taxation within the province (s. 92(2)), enabling provincial revenue generation; local works and undertakings (s. 92(10)), the basis for provincial jurisdiction over local businesses and infrastructure; the administration of justice within the province (s. 92(14)), including the organization of provincial courts and civil procedure; and municipal institutions (s. 92(8)), delegating authority to local government.

Section 93 assigns jurisdiction over education to the provinces, subject to limited protections for denominational schools — a compromise necessitated by the religious divisions of the era. This provision was central to the Manitoba Schools Question (1890s) and continues to generate occasional litigation.

The Federal Executive and Parliament

Sections 9–16 vest the executive government of Canada in the Queen, exercisable by the Governor General appointed by the Sovereign on the advice of the Canadian Prime Minister. Section 17 establishes the Parliament of Canada, consisting of the Queen, an Upper House (the Senate), and the House of Commons. The Senate was designed to provide regional representation and legislative sober second thought, with senators appointed by the Governor General under s. 24. Section 91 confirms Parliament’s paramount legislative authority within its assigned fields. Provincial legislatures are established under ss. 58–90, with each province having a Lieutenant Governor appointed by the Governor General in Council (s. 58) and a legislative assembly.

Constitutional Amendments Prior to 1982

For its first 115 years, the Constitution Act, 1867 contained no general amending formula; amendments required an Imperial statute at Westminster, typically preceded by a joint address of the Canadian Senate and House of Commons. Significant amendments included the creation of new provinces (Manitoba, 1870; British Columbia, 1871; Prince Edward Island, 1873; Alberta and Saskatchewan, 1905; Newfoundland, 1949); the Statute of Westminster, 1931 (22 & 23 Geo. V, c. 4), which removed the UK Parliament’s authority to legislate for Canada (except by Canada’s request and consent) and granted Canada full control over its external affairs; and various amendments adjusting federal-provincial powers in specific areas such as unemployment insurance (1940), old age pensions (1951, 1964), and the equalization provisions (1951).

Continuing Relevance

The Constitution Act, 1867 remains a living instrument of government. Its provisions continue to be interpreted and applied by the courts in division-of-powers litigation, which remains a vibrant area of Canadian constitutional law despite the Charter’s ascendance. The Supreme Court of Canada has repeatedly affirmed that the Act must be interpreted as a “living tree” capable of growth (Edwards v. Canada (AG), [1930] AC 124). The division of powers continues to structure federal-provincial relations in areas such as environmental regulation, securities law, labour relations, and health care, with the courts applying doctrines of interjurisdictional immunity, paramountcy, and cooperative federalism (Canadian Western Bank v. Alberta, [2007] 2 SCR 3; Reference re Securities Act, [2011] 3 SCR 837) to mediate jurisdictional conflicts. Together with the Constitution Act, 1982, it constitutes the supreme law of Canada under s. 52(1) of the latter statute.