The Constitution Act, 1886 (UK), 58 & 59 Vict, c 35, (the Act) is an Act of the Parliament of the United Kingdom and forms part of the Constitution of Canada. It was originally known as the British North America Act, 1886, but it was renamed by the Constitution Act, 1982.
Section 1 of the Constitution Act, 1886 provides that "the Parliament of Canada may...make provision for the representation in the Senate and House of Commons, or in either of them, of any territories which for the time being form part of the Dominion of Canada, but are not included in any Province thereof."
Section 2 of the Act clarifies that Parliament can by providing for the representation of the territories in the Senate increases the normal and maximum total number of Senators under the Constitution Act, 1867, and increases the number of members of the House of Commons.
|British North America Act 1886|
|Long title||An Act respecting the representation in the Parliament of Canada of territories which for the time being form part of the Dominion of Canada, but are not included in any province.|
|Citation||1886 c. 35|
|Royal assent||June 25, 1886|
Status: Current legislation
|Text of statute as originally enacted|
|Revised text of statute as amended|
Each territory is currently represented by one member of the Senate and one member of the House of Commons. This is in spite of their small populations relative to the provinces and indeed, relative to nearly all federal electoral districts. In 1987, the Chief Justice of the Supreme Court of British Columbia noted that "representation for the territories [in the House of Commons] has never been based strictly upon population".
The Northwest Territories and Yukon have been represented in the Senate since 1975 and Nunavut has been represented in the Senate since its creation in 1999.
The Yukon has been represented in the House of Commons since 1902. The Northwest Territories and the Yukon were represented by the same member of the House of Commons between 1949 and 1952. After the 1952 election, the western portion of the Northwest Territories was represented by its own member; after the 1979 election, an additional member was added to the House of Commons to represent the eastern portion of the Northwest Territories. Nunavut, which was created from the eastern portion of the Northwest Territories, has been represented in the House of Commons since its creation in 1999.
The Constitution Act, 1886 was enacted at the request of the government of Canada "on the basis of a formal address by both Houses of Parliament". This was in accordance with the precedent set concerning the Constitution Act, 1871.
The Constitution Act, 1915, which increased the representation of Alberta, British Columbia, Manitoba and Saskatchewan in the Senate, and established the Senate floor rule according to which a province cannot have fewer members of the House of Commons than it has Senators, provided that it does not "affect the powers of the Canadian Parliament under the Constitution Act, 1886". The Senate floor rule is now reflected in paragraph 41(b) of the Constitution Act, 1982.
In their dissenting opinion in the Reference re Resolution to amend the Constitution (better known as the Patriation Reference) in 1981, Chief Justice Laskin and Justices Estey and McIntyre noted that the Constitution Act, 1886 was enacted "without provincial consultation and consent" despite its effects on provincial interests. The judges were presumably referring to the risk that Parliament would use the power to dilute the provincial representation in the Senate, undermining one of its fundamental features.
Senator Eugene Forsey seems to share the dissenting judges' concern. This concern was noted by W.H.P. Clement as early as 1892; Clement warned that "it is in the power of the Dominion government to swamp the Senate, so long as the additional members are appointed to represent the [territories]". James Ross Hurley, a former senior public servant, noted that "a radical increase in territorial senators could, at some point, be challenged as a violation of the federal principle".
In 1979, in the Reference re Authority of Parliament in relation to the Upper House (better known as the Upper House Reference), the Supreme Court of Canada noted that the actual granting of representation in the Senate and the House of Commons to the territories by virtue of section 1 of the Constitution Act, 1886 "did not in any substantial way affect federal-provincial relationships".
The Constitution Act, 1886 would not have been repealed by the Victoria Charter or the Meech Lake Accord, two unsuccessful attempts to reform the Constitution of Canada. A third attempt, the Charlottetown Accord, would have (at least impliedly) repealed the Constitution Act, 1886 in part and added a paragraph 21(1)(b) to the Constitution Act, 1867, which would have provided that "one [Senator] shall be elected for each territory, namely the Yukon Territory and the Northwest Territories". The Accord also proposed subsection 21(2), which would have provided that "where a new province is established from the Yukon Territory or the Northwest Territories, the new province shall be entitled to the same representation in the Senate as the territory had."
Parliament's power under section 1 of the Constitution Act, 1886 overlaps with Parliament's broader power to make laws in relation to the "amendment...of the Constitution of Canada" (subject to certain exceptions) under subsection 91(1) of the British North America Act, 1867. That power was conferred to Parliament by section 1 of the British North America Act, 1949 (No. 2) and repealed by subsection 53(1) of and the Schedule to the Constitution Act, 1982. Subsection 91(1) of the British North America Act, 1867 has been replaced by section 44 of the Constitution Act, 1982.
Parliament's power to "make provision for the representation in the...House of Commons...of any territor[y]" is likely limited by the democratic rights guaranteed in the Canadian Charter of Rights and Freedoms. Section 3 of the Charter guarantees to Canadian citizens residing in each territory "right to vote in an election of members of the House of Commons...and to be qualified for membership therein". Section 3 applies to "the Parliament...of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories" (emphasis added) by virtue of paragraph 32(1)(a) of the Charter.
Since the Constitution Act, 1886 was enacted in English, there is no official French version of the Act. Section 55 of the Constitution Act, 1982 requires the Minister of Justice to prepare a translation of the Act and that it be brought forward for enactment. Although a translation was prepared in 1990, it has not been brought forward for enactment.
Full text of the Constitution Act, 1886.
French version of the Constitution Act, 1886 proposed by the French Constitutional Drafting committee. An alternative French version was published in the Revised Statutes of Canada in 1985 and reprinted in the Revised Statutes of Ontario in 1990.
The British North America Act, 1840 (3 & 4 Victoria, c.35), also known as the Act of Union 1840, (the Act) was approved by Parliament in July 1840 and proclaimed February 10, 1841 in Montréal. It abolished the legislatures of Lower Canada and Upper Canada and established a new political entity, the Province of Canada to replace them. The Act was similar in nature and in goals to the other Acts of Union enacted by the British Parliament.British North America Acts
The British North America Acts 1867–1975 are a series of Acts at the core of the constitution of Canada. They were enacted by the Parliament of the United Kingdom and the Parliament of Canada. In Canada, some of the Acts were amended or repealed by the Constitution Act, 1982. The rest were renamed in Canada as the Constitution Acts. In the United Kingdom, those Acts that were passed by the British Parliament remain under their original names. The term "British North America" (BNA) refers to the British colonies in North America.Canada Act 1982
The Canada Act 1982 (1982 c. 11; French: Loi de 1982 sur le Canada) is an act of the Parliament of the United Kingdom which was passed (as stated in the preamble) at the request of the Parliament of Canada, to "patriate" Canada's constitution, ending the power of the British Parliament to amend the Constitution of Canada. The act also formally ended the "request and consent" provisions of the Statute of Westminster 1931 in relation to Canada, whereby the British parliament had a general power to pass laws extending to Canada at its own request.
Annexed as Schedule B to the act is the text of the Constitution Act, 1982, in both of Canada's official languages (i.e. English and French). Because of the requirements of official bilingualism, the body of the Canada Act itself is also set out in French in Schedule A to the act, which is declared by s. 3 to have "the same authority in Canada as the English version thereof".Canadian Bill of Rights
The Canadian Bill of Rights (French: Déclaration canadienne des droits) is a federal statute and bill of rights enacted by the Parliament of Canada on August 10, 1960. It provides Canadians with certain quasi-constitutional rights at Canadian federal law in relation to other federal statutes. It was the earliest expression of human rights law at the federal level in Canada, though an implied Bill of Rights had already been recognized in the Canadian Common Law.The Canadian Bill of Rights remains in effect but is widely acknowledged to be limited in its effectiveness because it is a federal statute only, and so not directly applicable to provincial laws. As to Canadian federal law, the Bill of Rights has subsequently acquired through judicial interpretation a quasi-constitutional status through the paramountcy doctrine. These legal and constitutional limitations were a significant reason that the Canadian Charter of Rights and Freedoms was established as an unambiguously-constitutional-level Bill of Rights for all Canadians, governing the application of both federal and provincial law in Canada, with the patriation of the Constitution of Canada in 1982. Since patriation, its usefulness at federal law in Canada is mostly limited to issues pertaining to the enjoyment of property, as set forth in its section 1(a)]—a slightly-broader "life, liberty, and security of the person" right than is recognized in Section Seven of the Canadian Charter of Rights and Freedoms.Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms (French: La Charte canadienne des droits et libertés), in Canada often simply the Charter, is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all areas and levels of the government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17, 1982, along with the rest of the Act.
The Charter was preceded by the Canadian Bill of Rights, which was enacted in 1960. However, the Bill of Rights is only a federal statute, rather than a constitutional document. As a federal statute, it can be amended through the ordinary legislative process and has no application to provincial laws. The Supreme Court of Canada also narrowly interpreted the Bill of Rights and the Court was reluctant to declare laws inoperative. The relative ineffectiveness of the Canadian Bill of Rights motivated many to improve rights protections in Canada. The movement for human rights and freedoms that emerged after World War II also wanted to entrench the principles enunciated in the Universal Declaration of Human Rights. The British Parliament formally enacted the Charter as a part of the Canada Act 1982 at the request of the Parliament of Canada in 1982, the result of the efforts of the government of Prime Minister Pierre Trudeau.
One of the most notable effects of the adoption of the Charter was to greatly expand the scope of judicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Bill of Rights. The courts, when confronted with violations of Charter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when Canadian case law was primarily concerned with resolving issues of federalism. The Charter, however, granted new powers to the courts to enforce remedies that are more creative and to exclude more evidence in trials. These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada's parent country the United Kingdom, was based upon Parliamentary supremacy. As a result, the Charter has attracted both broad support from a majority of the Canadian electorate and criticisms by opponents of increased judicial power. The Charter only applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, not to private activity.Canadian Human Rights Act
The Canadian Human Rights Act (the Act) is a statute passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set of prohibited grounds such as sex, sexual orientation, race, marital status, gender identity or expression, creed, age, colour, disability, political or religious belief.Canadian constitutional law
Canadian constitutional law (French: droit constitutionnel du Canada) is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.
In Reference re Secession of Quebec, the Supreme Court characterized four fundamental and organizing principles of the Constitution (though not exhaustive): federalism; democracy; constitutionalism and the rule of law.Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867.. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.
This process was necessary because, after the Statute of Westminster, 1931, Canada decided to allow the British Parliament to temporarily retain the power to amend Canada's constitution, on request from the Parliament of Canada. In 1981, the Parliament of Canada requested that the Parliament of the United Kingdom remove that authority from the UK. The passing of the UK's Canada Act 1982 in March 1982 confirmed the Patriation of the Constitution and transferred to Canada the power of amending its own Constitution.On April 17, 1982, Queen Elizabeth II and Prime Minister Pierre Trudeau, as well as the Minister of Justice, Jean Chrétien, and André Ouellet, the Registrar General, signed the Proclamation which brought the Constitution Act, 1982 into force. The proclamation confirmed that Canada had formally assumed authority over its constitution, the final step to full sovereignty.As of 2019, the government of Quebec has never formally approved of the enactment of the act, though the Supreme Court concluded that Quebec's formal consent was never necessary. Nonetheless, it has remained a persistent political issue in Quebec. The Meech Lake and Charlottetown Accords were designed to secure approval from Quebec, but both efforts failed to do so.Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. Canada is one of the oldest constitutional democracies in the world. The constitution outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada.The composition of the Constitution of Canada is defined in subsection 52(2) of the Constitution Act, 1982, as consisting of the Canada Act 1982 (including the Constitution Act, 1982), all acts and orders referred to in the schedule (including the Constitution Act, 1867, formerly the British North America Act, 1867), and any amendments to these documents. The Supreme Court of Canada has held that the list is not exhaustive and includes a number of pre-confederation acts and unwritten components as well. See list of Canadian constitutional documents for details.Constitutional Act 1791
From 1896 known as The Clergy Endowments (Canada) Act 1791, the statute passed at Westminster in the 31st year of George III, and itemised as chapter 31 (31 Geo 3 c 31), was commonly known as the Constitutional Act 1791 (French: Acte constitutionnel de 1791). It was an Act of the Parliament of Great Britain.Implied Bill of Rights
The Implied Bill of Rights (French: Déclaration des droits implicite) is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada. Invoked more often before the Canadian Charter of Rights and Freedoms was enacted, it is nonetheless important when questions of parliamentary supremacy and the override power come into play.Law of Canada
The Canadian legal system has its foundation in the English common law system, inherited from being a former colony of the United Kingdom and later a Commonwealth Realm member of the Commonwealth of Nations. The legal system is bi-jurisdictional, as the responsibilities of public (includes criminal) and private law are separated and exercised exclusively by Parliament and the provinces respectively. Quebec, however, still retains a civil system for issues of private law (as this domain falls within the exclusive jurisdiction of the provinces).
Both legal systems are subject to the Constitution of Canada. The federal government has jurisdiction over certain exclusive domains which are regulated exclusively by Parliament, as well as all matters and disputes between provinces. These generally include interprovincial transport (rail, air and marine transport) as well as interprovincial trade and commerce (which generally concerns energy, the environment, agriculture). The criminal law is an area of exclusive federal jurisdiction, and has its origins in the English common law. Prosecutions of most criminal offences are conducted by the provincial Attorneys General, acting under the Criminal Code.List of Canadian constitutional documents
The Constitution of Canada is a large number of documents that have been entrenched in the constitution by various means. Regardless of how documents became entrenched, together those documents form the supreme law of Canada; no non-constitutional law may conflict with them, and none of them may be changed without following the amending formula given in Part V of the Constitution Act, 1982.
The constitution includes legislation that was specifically written as constitutional documents, statutes that have become entrenched since their original creation, some ancient treaties and royal proclamations, unwritten procedures adopted from the British parliamentary system of government, and unwritten underlying values.
The oldest Canadian constitutional documents were enacted before Confederation, and originated from the English or British government. Those documents were received—along with many subconstitutional laws—into the law of Canada and its provinces by means of section 129 of the Constitution Act, 1867 (then called the British North America Act, 1867). Between Confederation in 1867 and patriation in 1982, the United Kingdom enacted some Canadian constitutional documents by means of the Colonial Laws Validity Act 1865 and the Statute of Westminster, 1931, most notably the British North America Acts. During this time, Canada also passed a small number of constitutional documents for itself. After patriation, all new constitutional documents were passed by the Parliament of Canada and the Legislatures of its provinces.
After patriation, the methods of constitutional entrenchment are:
specific mention as a constitutional document in section 52(2) of the Constitution Act, 1982;
amendments to constitutional documents using the amending formula in Part V the Constitution Act, 1982;
in some cases, reference by an entrenched document;
ruling by a court that a practice is part of Canada's unwritten constitution; or
judicial interpretation of constitutional provisions.The list of documents for the first two methods is well-established. For the next two, however, there is debate about which documents, or which parts of those documents, are included in the constitution. In some cases, the Supreme Court of Canada has made definitive rulings regarding whether a given documents forms part of the constitution, but in many cases the question is still unclear.Patriation
Patriation was the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. That Act was necessary because under the Statute of Westminster 1931, with Canada's agreement at the time, the British parliament had retained the power to amend Canada's Constitution Acts (Statute of Westminster sec. 7(1)), and to enact more generally for Canada at the request and with the consent of the Dominion (sec. 4). That authority was removed from the UK by the passing of the Canada Act 1982 on March 29, 1982, by the Parliament of the United Kingdom, as requested by the Parliament of Canada.Patriation was subsequently confirmed by Canada's Constitution Act, 1982 which was signed by then Prime Minister Pierre Trudeau and by Elizabeth II, as Queen of Canada, on April 17, 1982, on Parliament Hill, in Ottawa. Queen Elizabeth's constitutional powers over Canada were not affected by the act. Canada has complete sovereignty as an independent country, however, and the Queen's role as monarch of Canada is distinct from her role as the British monarch or the monarch of any of the other Commonwealth realms.The patriation process saw the provinces granted influence in constitutional matters and resulted in the constitution being amendable by Canada only and according to its amending formula, with no role for the United Kingdom. Hence, patriation is associated with the establishment of full sovereignty.Quebec Act
The Quebec Act of 1774 (French: Acte de Québec), (the Act) formally known as the British North America (Quebec) Act 1774, was an act of the Parliament of Great Britain (citation 14 Geo. III c. 83) setting procedures of governance in the Province of Quebec. The Act's principal components were:
The province's territory was expanded to take over part of the Indian Reserve, including much of what is now southern Ontario, Illinois, Indiana, Michigan, Ohio, Wisconsin, and parts of Minnesota.
Reference to the Protestant faith was removed from the oath of allegiance.
It guaranteed free practice of the Catholic faith.
It restored the use of the French civil law for matters of private law, except that in accordance with the English common law, it granted unlimited freedom of testation. It maintained English common law for matters of public law, including administrative appeals, court procedure, and criminal prosecution.
It restored the Catholic Church's right to impose tithes.The Act had wide-ranging effects, in Quebec itself, as well as in the Thirteen Colonies. In Quebec, English-speaking immigrants from Britain and the southern colonies objected to a variety of its provisions, which they saw as a removal of certain political freedoms. Canadiens varied in their reaction; the land-owning seigneurs and ecclesiastics for example were generally happy with its provisions.In the Thirteen Colonies, the Quebec Act had been passed in the same session of Parliament as a number of other acts designed as punishment for the Boston Tea Party and other protests, which the American Patriots collectively termed the "Intolerable" or in England officially the "Coercive Acts". The provisions of the Quebec Act were seen by the colonists as a new model for British colonial administration, which would strip the colonies of their elected assemblies. It seemed to void the land claims of the colonies by granting most of the Ohio Country to the province of Quebec. The Americans also interpreted the Act as an "establishment" of Catholicism in the colony. The Americans had fought hard in the French and Indian War, and they now saw the provisions given to the former enemy as an affront.Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued by King George III on October 7, 1763, following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War. This proclamation rendered all land grants given by the government to British subjects who fought for the Crown against France worthless. It forbade all settlement west of a line drawn along the Appalachian Mountains, which was delineated as an Indian Reserve.
Exclusion from the vast region of Trans-Appalachia filled people within various colonies with indignation. Discontent would later arise during the American Revolution.
The Royal Proclamation continues to be of legal importance to First Nations in Canada. The 1763 proclamation line is similar to the Eastern Continental Divide's path running northwards from Georgia to the Pennsylvania–New York border and north-eastwards past the drainage divide on the St. Lawrence Divide from there northwards through New England.Succession to the Throne Act 1937
The Succession to the Throne Act (1 Geo. VI, c.16) (the Act) is the act of the Canadian parliament that ratified the Cabinet's consent to His Majesty's Declaration of Abdication Act 1936, an act of the United Kingdom parliament that allowed Edward VIII to abdicate and pass the throne to George VI. However, it was the Canadian government's request and consent, and not the Succession to the Throne Act, that gave the British Act of Parliament effect in and made it part of the law of Canada, as per section 4 of the Statute of Westminster 1931, which allowed the British parliament to legislate for the Dominions only with their agreement.Treaty of Paris (1763)
The Treaty of Paris, also known as the Treaty of 1763, was signed on 10 February 1763 by the kingdoms of Great Britain, France and Spain, with Portugal in agreement, after Great Britain's victory over France and Spain during the Seven Years' War.
The signing of the treaty formally ended the Seven Years' War, known as the French and Indian War in the North American theatre, and marked the beginning of an era of British dominance outside Europe. Great Britain and France each returned much of the territory that they had captured during the war, but Great Britain gained much of France's possessions in North America. Additionally, Great Britain agreed to protect Roman Catholicism in the New World. The treaty did not involve Prussia and Austria as they signed a separate agreement, the Treaty of Hubertusburg, five days later.Unsuccessful attempts to amend the Canadian Constitution
Since the Constitution of Canada was patriated, in 1982, only ten minor Amendments to the Constitution of Canada have been passed. There have, however, been a number of unsuccessful attempts to amend the Constitution in accordance with its amending formula.