Constitutional Documents (1990 Report version)

FOREWORD

Layout

The presentation of this codification and the accompanying notes follow, to the extent possible, the basic principles related to formatting legislative enactments that were put in place in January 2016. For certain elements particular to constitutional enactments that have no equivalent in other consolidated statutes, it was decided to draw upon the presentation of these enactments in their previously published form.

French Version

Section 55 of the Constitution Act, 1982 provides that a “French version of the portions of the Constitution of Canada referred to in the schedule [to this Act] shall be prepared by the Minister of Justice as expeditiously as possible”. The French Constitutional Drafting Committee was established in 1984 with a mandate to assist the Minister of Justice in that task. The Committee’s Final Report, which contains forty-two constitutional enactments, was tabled by the Minister in both Houses of Parliament in December 1990.

This consolidation contains the text of the Constitution Act, 1867 (formerly the British North America Act, 1867), together with amendments made to it since its enactment, as redrafted by the French Constitutional Drafting Committee in 1990, as well as amendments enacted since then, and the text of the Canada Act 1982 and the Constitution Act, 1982, the latter as amended since its enactment. The Constitution Act, 1982 contains the Canadian Charter of Rights and Freedoms and other provisions, including the rights of Indigenous peoples and the procedures for amending the Constitution of Canada.

The Constitution Act, 1982 also contains a schedule of repeals of certain constitutional enactments and provides for the renaming of others. The British North America Act, 1949, for example, is renamed as the Newfoundland Act. The new names of these enactments are used in this consolidation, but their former names may be found in the schedule.

The Constitution Act, 1982 was enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.). It is set out in this consolidation as a separate Act after the Constitution Act, 1867 and the Canada Act 1982.

Except for certain amended provisions enacted in English and French by the Parliament of Canada, the French version of this consolidation of the Constitution Act, 1867 is, however, unauthoritative, not having been enacted by proclamation issued by the Governor General pursuant to the procedures applicable to the amendment of most of the Act’s constitutional provisions.

On the other hand, the French version of the Canada Act 1982 has the same authority in Canada as the English version thereof, in accordance with section 3 of that Act. As for the Constitution Act, 1982, its English and French versions are both equally authoritative by virtue of section 57. These Acts are also an integral part of this consolidation.

Amendment of the Constitution Act, 1867

The law embodied in the Constitution Act, 1867 has been altered many times otherwise than by textual amendment, not only by the Parliament of the United Kingdom but also by the Parliament of Canada and the legislatures of the provinces in those cases where provisions of that Act are expressed to be subject to alteration by Parliament or the legislatures. A consolidation of the Constitution Acts including only those subsequent enactments that alter the text of the Act would therefore not produce a true statement of the law. In preparing this consolidation, an attempt has been made to reflect accurately the substance of the law contained in enactments modifying the provisions of the Constitution Act, 1867, whether by textual amendment or otherwise.

The various classes of enactments modifying the Constitution Act, 1867 have been dealt with as follows:

I. Textual Amendments

• 1.  Repeals

  Repealed provisions (e.g. section 2) have been deleted from the text and quoted in an endnote.

• 2.  Amendments

  Amended provisions (e.g. section 4) are reproduced in the text in their amended form and the original provisions are quoted in an endnote.

• 3.  Additions

  Added provisions (e.g. section 51A) are included in the text.

• 4.  Substitutions

  Substituted provisions (e.g. section 18) are included in the text and the former provision is quoted in an endnote.

• 5.  Alterations by the Legislatures

  Provisions enacted by provincial legislatures under the unilateral amending procedure set out in section 45 of the Constitution Act, 1982, which allows a legislature to amend the constitution of its province, are italicized. The use of this character is intended to emphasize that these new provisions (e.g. section 90Q.1) are distinct from the amendments made to the Constitution of Canada (e.g. sections 51 and 93A) that were enacted under the procedures set out in sections 38 to 44 of the Constitution Act, 1982.

  Marginal notes identifying the name of the province to which an amendment applies have been added for administrative convenience and are reflected in the table of provisions.

II. Non-textual Amendments

• 1.  Alterations by United Kingdom Parliament

  Provisions altered by the United Kingdom Parliament otherwise than by textual amendment (e.g. section 21) are included in the text in their altered form and the original provision is quoted in an endnote.

• 2.  Additions by United Kingdom Parliament

  Constitutional provisions added otherwise than by the insertion of additional provisions in the Constitution Act, 1867 (e.g. provisions of the Constitution Act, 1871 authorizing Parliament to legislate for any territory not included in a province) are not incorporated in the text but the additional provisions are quoted in an appropriate endnote.

• 3.  Alterations by Parliament of Canada

  Provisions subject to alteration by the Parliament of Canada (e.g. section 37) have been included in the text in their altered form, wherever possible, but where this was not feasible (e.g. section 40) the original section has been retained in the text and an endnote reference made to the Act of the Parliament of Canada effecting the alteration.

• 4.  Alterations by the Legislatures

  Provisions subject to alteration by the legislatures of the provinces, either by virtue of specific authority (e.g. sections 83 and 84) or by virtue of former head 1 of section 92 (e.g. sections 70 and 72), have been included in the text in their original form but the endnotes refer to the provincial enactments effecting the alteration. Amendments to the provincial enactments are not noted; these may be found by consulting the provincial statutes. In addition, only the enactments of the original provinces are referred to; corresponding enactments by the provinces that were created at a later date are not noted.

Spent Provisions

Endnote references are made to those sections that are spent or probably spent. For example, section 119 became spent by lapse of time and the endnote reference indicates this. In turn, section 140 is probably spent, but short of examining all statutes passed before Confederation there would be no way of ascertaining definitely whether or not the section is spent; the endnote reference therefore indicates that the section is probably spent.

General

The enactments of the United Kingdom Parliament and the Parliament of Canada, and Orders in Council admitting territories, that are referred to in the endnotes may be found in Appendix II of the Appendices to the Revised Statutes of Canada, 1985 and in the annual volumes of the Statutes of Canada.

There are some inconsistencies in the capitalization of nouns in the English version. It was originally the practice to capitalize the first letter of all nouns in British statutes and the Constitution Act, 1867 was so written, but this practice was discontinued and was never followed in Canadian statutes. In the original provisions included in this consolidation, nouns are written as they were enacted.