Constitution Act, 1867
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The Constitution Act, 1867, formerly known as the British North America Act, 1867, comprises a major part of the Constitution of Canada. The Act defines much of the operation of the Government of Canada, including its federalist structure, the House of Commons, the Senate, the justice system, and the taxation system. It received its current name in 1982, with the patriation of the constitution. Amendments were also made at this time; section 92A was added, giving provinces greater control over non-renewable natural resources.
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Creation of the Dominion
- See also: Canadian Confederation
The British North America Act, 1867 was originally enacted by the British Parliament, and it established the Dominion of Canada. It did so by fusing the North American British colonies of the Province of Canada, the Province of New Brunswick, and the Province of Nova Scotia. The former subdivisions of Canada were renamed from Canada West and Canada East to Ontario Quebec, respectively. Quebec and Ontario were given equal footing with New Brunswick and Nova Scotia in the Parliament of Canada, as representation by population was accepted for the Canadian House of Commons, as was a notion of regional equality in the Canadian Senate, with the Ontario, Quebec and Maritime "regions" receiving an equal number of senators. This creation, or Confederation, was done to counter the claims of manifest destiny made by the United States of America, for the defense of Britain's holdings. American claims are evinced by the invasions of the Canadas during the British-American War (1812) and the British-American War (1776).
Prior to the BNA Act, 1867, the British colonies of New Brunswick, Nova Scotia, and Prince Edward Island, discussed the possibility of a fusion to counter the threat of American annexation, and to reduce the costs of governance. The Province of Canada entered these negotiations at the behest of the British government, and lead to the ambivalence of the Province of Prince Edward Island, which later joined the new Dominion. The constitutional conference, ironically, was held on Prince Edward Island, in Charlottetown.
Distribution of powers
- See also: Canadian federalism
The powers of government are divided between the provinces and the federal government, and are described in sections 91 to 95 of the Act. Section 91 and 92 are of particular importance as they enumerate the subject matters for which each head of power can enact law, with section 91 listing matters of federal jurisdiction and section 92 listing matters of provincial jurisdiction. Sections 92A and 93 are concerned with non-renewable natural resources and education, respectively (both are primarily provincial responsibilities). Section 94 leaves open a possible change to laws regarding property and civil rights, which so far has not been realized. Sections 94A and 95, meanwhile, address matters of shared jurisdiction, namely old age pensions (section 94A) and agriculture and immigration (section 95).
Peace, Order, and Good Government
- See also: Peace, order and good government
Section 91 by authorizing Parliament to "make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces". This gives Parliament residuary powers to enact any law that has not been allocated to the provincial governments. Thus, when analyzing each matter of jurisdictional dispute, it is with the mind that if it is not enumerated, then it is within the de facto authority of Parliament.
Criminal law
Section 91 (27) gives Parliament the power to make law related to the "criminal law, except the constituion of courts of criminal jurisdiction, but including the procedure in criminal matters." It was on this authority that Parliament created the Criminal Code and it is on this authority that Parliament amends said Code.
However, under section 92 (14), the provinces are delegated the power to administer justice, "including the constitution, mainenance, and organization of provincial courts, both of civil and criminal jurisdictions, and including procedure in civil matters in both courts." This allows the provinces to prosecute offences under the Criminal Code and to create a provincial police force such as the OPP.
Section 91(28) gives Parliament exclusive power over "penitentiaries" while section 92(6) gives the provinces power over the "prisons". This means that offenders sentenced to two years or more go to federal penitentiaries while those with lighter sentences go to provincial prisons.
Trade and Commerce
Section 91(2) gives Parliament the power to make law related to the "regulation of trade and commerce." In comparison with the US Constitution's approach to trade and commerce, the power given to Parliament is more broadly worded than that given to the federal US government, but in Canada it has nevertheless been typically read more narrowly, as some judges have felt that it overlaps with the provincial authority over property and civil rights.
Property and Civil Rights
Section 92(13) gives the provinces the exclusive power to make law related to "property and civil rights in the province". In practice, this power has been read broadly giving the provinces authority over numerous matters such as professional trades, labour relations, and consumer protection.
Transportation and Communication
Like many other powers, transportation and communication have overlapping powers between the two heads of powers. Section 92(10) gives the provinces power over "local work and undertakings". However, the section also excludes the provinces from undertakings related to "ships, railways, canals, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces", as well as, ship lines, and such works "declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more provinces."
Marriage
Section 91(26) gives the federal government power over divorce and marriage. On this basis, Parliament can legislate laws related marriage and divorce. However, the provinces retain the power over the Solemnization of Marriage (section 92(13)).
There are also several instances of overlap in law relating the marriage and divorce, which in most cases is solved through interjurisdictional immunity. For instance, the federal Divorce Act is valid legislation, even though the Divorce Act has some incidental effects on child custody, which is usually considered to be within the provincial jurisdictions of "Civil rights" (s.92(13)) and "Matters of a private nature" (s.92(16)).
Justice System
- See also: Court system of Canada
Sections 96 to 101 give the power to enact a justice system for Canada.
The power for the federal government to create courts of appeal is found under section 101. This includes the federal courts, and the Supreme Court under the Supreme Court Act. Section 92(14), however, gives power to the provinces to create provincial courts. This includes small claims courts and numerous administrative tribunals.
Superior Courts are known as "Court of Inherent Jurisdiction" as they receive their constitutional authority from historical convention inherited from the United Kingdom.
Section 96 provides that the federal government would appoint the judges of certain provincial courts: "the Superior, District, and County Courts in each Province". No provinces have district or county courts anymore, but all provinces have Superior Courts. Although the provinces pay for these courts and determine their jurisdiction and procedural rules, the federal government appoints and pays their judges.
