Proclamation bringing the Constitution Act into force, July 1, 1867

The Preamble to the Constitution Act, 1867 (French: Préambule de la Loi constitutionnelle de 1867) is a provision of the Constitution of Canada, setting out some of the general goals and principles of the Act. Although not itself a substantive provision, the courts have used it as a guide to the interpretation of the Constitution of Canada, particularly unwritten constitutional principles which inform the history and meaning of the Constitution.

The Constitution Act, 1867 is the constitutional statute which established Canada. Originally named the British North America Act, 1867, the Act continues to be the foundational statute for the Constitution of Canada, although it has been amended many times since 1867. It is now recognised as part of the supreme law of Canada.

Constitution Act, 1867

The Constitution Act, 1867 is part of the Constitution of Canada and thus part of the "supreme law of Canada".[1][2] It was the product of extensive negotiations between the provinces of British North America at the Charlottetown Conference in 1864, the Quebec Conference in 1864, and the London Conference in 1866.[3][4] Those conferences were followed by consultations with the British government in 1867.[5] The Act sets out the constitutional framework of Canada, including the structure of the federal government and the powers of the federal government and the provinces. It was enacted by the British Parliament under the name the British North America Act, 1867.[6][7] In 1982 the Act was brought under full Canadian control through the Patriation of the Constitution, and was re-named the Constitution Act, 1867.[2][6] Since Patriation the Act can only be amended in Canada, under the amending formula set out in the Constitution Act, 1982.[8][9][10]

Text of the Preamble

The Preamble reads:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:

And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire:

And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared:

And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America:[11]

Legislative history

The origins of the Preamble are in the first three resolutions adopted by the Fathers of Confederation at the Quebec Conference in 1864:

  • Resolution 1 stated that "The best interests and present and future prosperity of British North America" would be promoted by a federal union under the British Crown, on terms that were just for all the Provinces.
  • Resolution 2 summarised the proposed federation, with a general government "charged with matters of common interest to the whole country", and local governments "charged with the control of local matters in their respective sections", and with provision for the future entry of the other British North American provinces and territory.
  • Resolution 3 affirmed that the Conference desired "to follow the model of the British Constitution, so far as our circumstances will permit."[12]

These three resolutions were continued at the London Conference of 1866, which finalised the agreement for Confederation.[13] They became the basis for the Preamble, which took its current form in the final draft of the bill, dated February 9, 1867.[14]

The Preamble has not been amended since it was enacted in 1867.

Purpose and interpretation

The Preamble has had a significant impact on constitutional jurisprudence concerning the nature of Canadian Confederation and the independence of the Canadian courts.

Although significant cases had been decided on the general nature of Confederation since the 1930s, it was not until 1997 that the Supreme Court of Canada endeavoured to explain and consolidate its jurisprudence that derives from the Preamble. Lamer C.J. summarized it thus:[15]

  • preambles can be used to identify the purpose of a statute, and also as an aid to construing ambiguous statutory language
  • the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme
  • it speaks of the desire of the founding provinces “to be federally united into One Dominion”, and thus, addresses the structure of the division of powers
  • by its reference to “a Constitution similar in Principle to that of the United Kingdom”, the preamble indicates that the legal and institutional structure of constitutional democracy in Canada should be similar to that of the legal regime out of which the Canadian Constitution emerged
  • it points to the nature of the legal order that envelops and sustains Canadian society. In Re Manitoba Language Rights that is described as “an actual order of positive laws”, which is embraced by the notion of the rule of law
  • one example where the Court has inferred a fundamental constitutional rule which is not found in express terms is the doctrine of full faith and credit, where the courts of one province are under a constitutional obligation to recognize the decisions of the courts of another province (as noted in Hunt v. T&N plc)
  • another example where the Court has inferred a basic rule of Canadian constitutional law despite the silence of the constitutional text is the doctrine of paramountcy
  • it also provides for the constitutionalization of legislative privileges for Parliament and the provincial legislatures, to ensure that they can perform their functions free from interference by the Crown and the courts
  • there is interdependence between democratic governance and freedom of political speech, and only Parliament can legislate any limitation of political expression
  • the judicial independence of the courts is guaranteed

Notable cases

Section 9 of the Act states that the executive authority is vested in the Queen.

References

  1. ↑ Peter Hogg and Wade Wright, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters (looseleaf; current to 2022), para. 1:4.
  2. 1 2 Constitution Act, 1982, s. 52, s. 53, and Schedule, item 1.
  3. ↑ Donald Creighton, The Road to Confederation (Toronto: Macmillan Publishing, 1864; revised ed., Oxford: Oxford University Press, 2012.) online
  4. ↑ Christopher Moore, 1867 — How the Fathers Made a Deal (Toronto: McClelland & Stewart, 1997).
  5. ↑ Ben Gilding, "The Silent Framers of British North American Union: The Colonial Office and Canadian Confederation, 1851–67", Canadian Historical Review, Vol. 99, No. 3 (2018), pp. 349–393.
  6. 1 2 Hogg and Wright, Constitutional Law of Canada, para. 1:2.
  7. ↑ British North America Act, 1867, 30 & 31 Victoria, c. 3 (UK).
  8. ↑ Hogg and Wright, Constitutional Law of Canada, para. 4:1.
  9. ↑ Constitution Act, 1982, Part V.
  10. ↑ Canada Act 1982 (UK) 1982, c. 11, s. 2.
  11. ↑ Constitution Act, 1867, Preamble.
  12. ↑ Quebec Resolutions, Resolutions 1, 2 and 3.
  13. ↑ London Resolutions, Resolutions 1, 2, and 3.
  14. ↑ "Final Draft of the British North America Bill" (9 February 1867), preamble; reproduced in G.P. Browne (ed.), Documents on the Confederation of British North America (Montreal & Kingston: McGill-Queen's University Press, 2009; reprint of 1969 edition, with introduction by Janet Ajzenstat), Document 86, p. 302.
  15. ↑ Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 SCR 3, paras. 93–109.

Further reading

  • Corbett, S.M. (1998). "Reading the Preamble to the British North America Act, 1867" (PDF). Constitutional Forum. Centre for Constitutional Studies, University of Alberta. 9 (2): 42–47. Retrieved 2012-10-11.
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