The Constitution Act, 1867 (formerly called the British North America Act, 1867, and still known informally as the BNA Act), comprises a major part of Canada's constitution. The Act entails the original creation of a federal dominion and defines much of the operation of the Government of Canada, including its federal 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 (having originally been enacted by the British Parliament). Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.
The Act begins with a preamble that declares Ontario, Quebec, New Brunswick and Nova Scotia (the original four provinces) have requested to form a federation. This federation, the preamble goes on to claim, will have "a Constitution similar in Principle to that of the United Kingdom." This description of the Constitution has proven important in its interpretation. As Peter Hogg wrote in Constitutional Law of Canada, some have argued that since the United Kingdom had some freedom of expression in 1867, the preamble extended this right to Canada even before the enactment of the Canadian Charter of Rights and Freedoms in 1982; this was one of the supposed bases for the Implied Bill of Rights. Moreover, since the UK had a tradition of judicial independence, the Supreme Court of Canada ruled in the Provincial Judges Reference of 1997 that the preamble shows judicial independence in Canada is constitutionally guaranteed.
The preamble to the Constitution Act, 1867 is not the Constitution of Canada's only preamble. The Charter also has a preamble (see Preamble to the Canadian Charter of Rights and Freedoms).
The British North America Act, 1867 established the Dominion of Canada 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 and 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 defence of Britain's holdings. American threats were evinced by the invasions of the Canadas during the War of 1812 and the American Revolutionary War.
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 led to the ambivalence of the Province of Prince Edward Island, which delayed joining the new Dominion for seven years. The constitutional conference, ironically, was held on Prince Edward Island, in Charlottetown.
Distribution of powers
The powers of government are divided between the provinces and the federal government and are described in sections 91 to 95 of the Act. Sections 91 and 92 are of particular importance, as they enumerate the subjects for which each jurisdiction 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
Section 91 authorizes 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 laws in any area 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 jure authority of Parliament.
Section 91 (27) gives Parliament the power to make law related to the "criminal law, except the constitution 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, maintenance, 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.
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.
Section 91(26) gives the federal government power over divorce and marriage. On this basis, Parliament can legislate laws related to marriage and divorce. However, the provinces retain the power over the solemnization of marriage (section 92(12)).
There are also several instances of overlap in laws relating to 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)).
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 "courts of inherent jurisdiction", as they receive their constitutional authority from historical convention inherited from the United Kingdom.
Section 96 Courts
Section 96 authorizes the federal government to appoint judges for "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.
Historically, this section has been interpreted as providing superior courts of inherent jurisdiction with the constitutional authority to hear cases. The "section 96 courts" are typically characterized as the "anchor" of the justice system around which the other courts must conform. As their jurisdiction is said to be "inherent", the courts the authority to try all matters of law except where the jurisdiction has been taken away by another court. However, courts created by the federal government under section 101 or by the provincial government under 92(14) are generally not allowed to intrude on the core jurisdiction of a section 96 court.
The scope of the core jurisdiction of the section 96 courts has been a matter of considerable debate and litigation. When commencing litigation a court's jurisdiction may be challenged on the basis that it does not have jurisdiction. The issue is typically whether the statutory court created under section 101 or 92(14) has encroached upon the exclusive jurisdiction of a section 96 court.
To validiate the jurisdiction of a federal or provincial tribunal it must satisfy a three step inquiry first outlined in Re Residential Tenancies Act, 1979 (1981). The tribunal must not touch upon what was historically intended as the jurisdiction of the superior court. The first stage of inquiry considers what matters were typically exclusive to the court during Confederation in 1867. In Sobeys Stores Ltd. v. Yeomans (1989) the Supreme Court stated that the "nature of the disputes" historically heard by the superior courts, not just the historical remedies provided, must be read broadly. If the tribunal is found to intrude on the historical jurisdiction of the superior court, the inquiry must turn to the second stage which considers whether the function of the tribunal and whether it operates as an adjudicative body. The final step assess the context of the tribunal's exercise of power and looks to see if there are any further considerations to justify its encroachment upon the superior court's jurisdiction.
Not all courts and tribunals have jurisdiction to hear constitutional challenges. The court, at the very least, must have jurisdiction to apply the law. In N.S. v. Martin; N.S. v. Laseur (2003) the Supreme Court re-aritulated the test for constitutional jurisdiction from Cooper v. Canada (Human Rights Commission). The inquiry must begin by determining whether the enabling legislation gives explicit authority to apply the law. If so, then the court may apply the constitution. The second line of inquiry looks into whether there was implied authority to apply the law. This can be found by examining the text of the Act, its context, and the general nature and characteristics of the adjudicative body.
See Section Twenty-four of the Canadian Charter of Rights and Freedoms for jurisdiction of the Charter.
Small bill of rights
Aside from the theory of the Implied Bill of Rights, there is no actual written bill of rights in the Constitution Act, 1867. Still, there are narrow constitutional rights scattered throughout the document. Hogg has referred to them as the "small bill of rights," though the Supreme Court in Greater Montreal Protestant School Board v. Quebec (1989) disliked the characterization in that rights in the Constitution Act, 1867 should not be interpreted as liberally as rights in the Charter. The rights Hogg identifies include language rights. There are also denominational school rights under section 93 (reaffirmed by section 29 of the Charter), notwithstanding provincial jurisdiction over education in Canada. Section 99 establishes a right for judges to serve unless removed by the legislature. Democratic rights include the rule that Parliament and the legislatures of Ontario and Quebec must sit at least once a year under sections 20 and 86, and there must be a federal election at least once every five years under section 50. These are repeated in section 4 and section 5 of the Charter and section 20 of the Constitution Act, 1867 has been repealed. The Constitution Act, 1867 also guarantees representation by population. Finally, section 121 allows for people to carry goods across provincial borders at no charge, and section 125 exempts government from paying land taxes.
Although the 1867 law did not establish English and French as Canada's official languages, it did provide some rights for both languages in some institutions of the federal and Quebec governments.
Section 133 allowed bilingualism in Parliament and the Quebec legislature, allowed for records to be kept in both languages, and allowed bilingualism in federal and Quebec courts. Interpretation of this section has found that this provision requires that all statues and delegated legislation be in both languages and be of equal force. Likewise, it has been found that the meaning of "courts" in section 133 includes all federal and provincial courts as well as all tribunals that exercise an adjudicative function.
These rights are duplicated in respect to the federal government, but not Quebec, and extended to New Brunswick, by section 17, section 18, and section 19 of the Charter of Rights; section 16 and section 20 of the Charter elaborate by declaring English and French to be the official languages and allowing for bilingual public services.