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Encyclopedia > Constitution Act, 1867

The Constitution Act, 1867 (formerly called the British North America Act, 1867, and still known informally as the BNA Act), constitutes 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. Regions Political culture Foreign relations Other countries Atlas  Politics Portal      The British North America Acts 1867–1975 are a series of Acts of the Parliament of the United Kingdom dealing with the government of Canada, which was known as British North America until 1867. ... A map displaying todays federations. ... A dominion, often Dominion, is the territory or the authority of a dominus (a lord or master). ... Bold text The Canada wordmark, used by most agencies of the Canadian federal government. ... Canadian federalism is one of the three pillars of the constitutional order, along with responsible government and the Canadian Charter of Rights and Freedoms. ... The House of Commons (French: Chambre des communes) is a component of the Parliament of Canada, along with the Sovereign (represented by the Governor General) and the Senate. ... The Senate of Canada (French: Le Sénat du Canada) is a component of the Parliament of Canada, along with the Sovereign (represented by the Governor General) and the House of Commons. ... Look up Patriation in Wiktionary, the free dictionary. ... The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative institution in the United Kingdom and British overseas territories (it alone has parliamentary sovereignty). ...

Contents

Preamble

The Act begins with a preamble that declares that the three provinces of Canada, New Brunswick and Nova Scotia (which would become the four original 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.[1] 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. Political scientist Rand Dyck has criticized the preamble, saying it is "seriously out of date." Thus, he claims the Constitution Act, 1867 "lacks an inspirational introduction."[2] Look up Preamble in Wiktionary, the free dictionary. ... Motto: Spem reduxit (Hope restored) Capital Fredericton Largest city Saint John Official languages English, French (the only constitutionally bilingual province in the country) Government - Lieutenant-Governor Herménégilde Chiasson - Premier Shawn Graham (Liberal) Federal representation in Canadian Parliament - House seats 10 - Senate seats 10 Confederation July 1, 1867 (1st... Motto: Munit Haec et Altera Vincit(Latin) One defends and the other conquers Capital Halifax Largest city Halifax Regional Municipality Official languages English Government - Lieutenant-Governor Mayann E. Francis - Premier Rodney MacDonald (PC) Federal representation in Canadian Parliament - House seats 11 - Senate seats 10 Confederation July 1, 1867 (1st) Area... Peter Wardell Hogg, C.C., Q.C., Ph. ... Freedom of speech is the right to freely say what one pleases, as well as the related right to hear what others have stated. ... The Charter, signed by Prime Minister Pierre Trudeau in 1981. ... Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada. ... Judicial independence is the doctrine that decisions of the judiciary should be impartial and not subject to influence from the other branches of government or from private or political interests. ... The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system. ... Holding There is a constitutional norm that protects the judicial independence of all judges. ... Neil McGraw with Dr. Rand Dyck at 14th Annual Model Parliament, Jan. ... ķ Look up inspiration in Wiktionary, the free dictionary. ...


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 preamble to the Canadian Charter of Rights and Freedoms is the introductory sentence (preamble) to the Constitution of Canadas Charter of Rights and Constitution Act, 1982. ...


Union

Wikisource has original text related to this article:
British North America Act, 1867

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 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. We dont have an article called Canadian-confederation Start this article Search for Canadian-confederation in. ... Image File history File links Wikisource-logo. ... The original Wikisource logo. ... Canada is the second largest and the northern-most country in the world, occupying most of the North American land mass. ... World map showing North America A satellite composite image of North America. ... Canada West was the western portion of the former Province of Canada from 1841 to 1867. ... Bold textBold textBold textBold textItalic textItalic textndigbvsikdbkgbsdxchcgsidgfvkdskgvbsdlkioktgirbeirnbijuiogppsfgbsikgbvhregiyyyyyyyyyyyyyyyyyyyyyyyyyygfhdjbdhdc bvcbfghjfh ... Motto: Ut Incepit Fidelis Sic Permanet (Latin: Loyal she began, loyal she remains) Capital Toronto Largest city Toronto Official languages English Government - Lieutenant-Governor James K. Bartleman - Premier Dalton McGuinty (Liberal) Federal representation in Canadian Parliament - House seats 106 - Senate seats 24 Confederation July 1, 1867 (1st) Area [1] Ranked... Motto: Je me souviens (French: I remember) Capital Quebec City Largest city Montreal Official languages French Government - Lieutenant-Governor Pierre Duchesne - Premier Jean Charest (PLQ) Federal representation in Canadian Parliament - House seats 75 - Senate seats 24 Confederation July 1, 1867 (1st) Area  Ranked 2nd - Total 1,542,056 km² (595... Regions Political culture Foreign relations Other countries Atlas  Politics Portal      The Senate Chamber of Parliament Hill in Ottawa. ... In politics, representation describes how residents of a country are empowered in the government. ... We dont have an article called Canadian-confederation Start this article Search for Canadian-confederation in. ... This painting (circa 1872) by John Gast called American Progress is an allegorical representation of Manifest Destiny. ... Combatants United States Great Britain Canada Bermuda Eastern Woodland Indians Commanders James Madison Henry Dearborn Jacob Brown Winfield Scott Andrew Jackson George Prevost Isaac Brock† Tecumseh† Strength •U.S. Regular Army: 35,800 •Rangers: 3,049 •Militia: 458,463* •US Navy & US Marines: (at start of war): •Frigates:6 •Other... Combatants United States France Spanish Empire Dutch Republic Oneida Tuscarora Polish volunteers Quebec volunteers Prussian volunteers Kingdom of Great Britain Iroquois Confederacy Hessian mercenaries Loyalists Commanders George Washington Nathanael Greene Gilbert de La Fayette Comte de Rochambeau Bernardo de Gálvez Tadeusz KoÅ›ciuszko Friedrich Wilhelm von Steuben King George...


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. Motto: i lost P.E.I. again mom:well, look under the couch Capital Charlottetown Largest city Charlottetown Official languages English Government - Lieutenant-Governor Barbara Oliver Hagerman - Premier Pat Binns (PC) Federal representation in Canadian Parliament - House seats 4 - Senate seats 4 Confederation July 1, 1873 (7th) Area Ranked 13th... For the federal electoral district see Canadian city and the provincial capital of Prince Edward Island, with a population of 32,245 as of 2001. ...


Distribution of powers

Main article: 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. 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). Canadian federalism is one of the three pillars of the constitutional order, along with responsible government and the Canadian Charter of Rights and Freedoms. ... A pension (also known as superannuation) is a retirement plan intended to provide a person with a secure income for life. ...


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. In Canada, the phrase peace, order and good government (in French, paix, ordre et bon gouvernement), called POGG for short, is often used to describe the principles upon which that countrys Confederation took place. ... Regions Political culture Foreign relations Other countries Atlas  Politics Portal      The Senate Chamber of Parliament Hill in Ottawa. ... Regions Political culture Foreign relations Other countriesAtlas  Politics Portal      Canada is a federation which consists of ten provinces that, with three territories, make up the worlds second largest country in total area. ...


Criminal law

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. In Canadian Constitutional law, the Constitution Act, 1867 provides the government with the authority to legislate on matters of criminal law and quasi-criminal law. ... The Canadian Criminal Code (formal title An Act respecting the Criminal Law) is the codification of most of the criminal offences and procedure in Canada. ...


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. The Ontario Provincial Police (O.P.P.) is the provincial police force for the province of Ontario, Canada. ...


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. This article or section does not cite any references or sources. ... The field of labor relations looks at the relationship between management and groups of workers represented by a labor union. ...


Marriage

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)). For the record label, see Divorce Records. ... This article or section needs copy editing for grammar, style, cohesion, tone and/or spelling. ...


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)). Canadas Divorce Act (R.S., 1985, c. ... Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parents duty to care for the child. ...


Justice system

and Canadian legal system

Sections 96 to 101 give the power to enact a justice system for Canada. The Court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. ... The Canadian legal system has its foundation in the British common law system, inherited from being a part of the Commonwealth. ...


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. List of final courts of appeal in Canada. ... The Supreme Court Act is an Act passed by the Parliament of Canada establishes the Supreme Court of Canada. ... Small claims courts are courts of limited jurisdiction that hear civil cases between private litigants. ...


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 have 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 assesses 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. Court membership Chief Justice: Bora Laskin Puisne Justices: Ronald Martland, Roland Ritchie, Brian Dickson, Jean Beetz, Willard Estey, William McIntyre, Julien Chouinard, Antonio Lamer Reasons given Majority by: Dickson J. Reference re Residential Tenancies Act, [1981] 1 S.C.R. 714 is a leading Supreme Court of Canada decision of... Court membership Chief Justice: Brian Dickson Puisne Justices: Jean Beetz, Willard Estey, William McIntyre, Antonio Lamer, Bertha Wilson, Gerald Le Dain, Gérard La Forest, Claire LHeureux-Dubé Reasons given Majority by: Wilson J. Joined by: Dickson C.J. McIntyre and Lamer J. Concurrence/dissent by: La Forest J...


Constitutional 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-articulated 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. Court membership Chief Justice: Beverley McLachlin Puisne Justices: Charles Gonthier, Frank Iacobucci, John C. Major, Michel Bastarache, Ian Binnie, Louise Arbour, Louis LeBel, Marie Deschamps Reasons given Unanimous reason by: Gonthier J. Overruled by , [1996] 3 S.C.R. 854 Nova Scotia v. ...


See Section Twenty-four of the Canadian Charter of Rights and Freedoms for jurisdiction of the Charter. Enforcement Enforcement of guaranteed rights and freedoms 24. ...


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 that 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.[3] A bill of rights is a list or summary of which is considered important and essential by a group of people. ... Religious education teaches the doctrines of a religion. ... Section Twenty-nine of the Canadian Charter of Rights and Freedoms is the section of Charter that most specifically addresses rights regarding denominational schools and separate schools. ... Education in Canada is provided, funded and overseen by federal, provincial, and local governments. ... Section Four of the Canadian Charter of Rights and Freedoms is one of three democratic rights sections in the Charter. ... Section Five of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada, and the last of three democratic rights in the Charter. ...


Language rights

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. The English language is a West Germanic language that originates in England. ... An official language is a language that is given a unique legal status in the countries, states, and other territories. ...


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 statutes and delegated legislation be in both languages and be of equal force.[4] 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.[5]


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. (1) Everyone has the right to use English or French in any debates or other proceedings of Parliament. ... Section Eighteen of the Canadian Charter of Rights and Freedoms is one of the provisions of the Charter that addresses rights relating to Canadas two official languages, English and French. ... Section Nineteen of the Canadian Charter of Rights and Freedoms is one of the provisions of the Charter that addresses rights relating to Canadas two official languages, English and French. ... (1) English and French are the official languages of Canada and have the equality of status and equal rights and privileges as to their use in all institutions of the Parliamnet and government of Canada. ... Section Twenty of the Canadian Charter of Rights and Freedoms is one of the sections of the Charter dealing with Canadas two official languages, English and French. ...


References

  1. ^ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 686.
  2. ^ Rand Dyck, Canadian Politics: Critical Approaches. Third ed. Scarborough, Ontario: Nelson Thomson Learning, 2000, p. 374.
  3. ^ Hogg, Constitutional Law of Canada. 2003 Student Ed., page 682.
  4. ^ Attorney General of Quebec v. Blaikie (No. 1)
  5. ^ ibid. at p. 1029


Quebec (Attorney General) v. ...

Constitution of Canada
v  d  e
Constitution Act, 1867
Division of powers | Peace, order and good government | Criminal law power | Trade and Commerce clause | Works and Undertakings | Property and civil rights | Disallowance and reservation

Canada Act 1982
Constitution Act, 1982
Canadian Charter of Rights and Freedoms | Aboriginal Rights clause | Amending formula

List of Canadian constitutional documents

History of the Constitution
Royal Proclamation of 1763 | Quebec Act | Constitutional Act of 1791 | Act of Union 1840 | British North America Acts | Statute of Westminster 1931
Constitutional debate
Fulton-Favreau formula | Victoria Charter | Meech Lake Accord | Charlottetown Accord | Calgary Declaration | Other unsuccessful amendments
Interpretation of the Constitution
Pith and substance | Double aspect | Paramountcy | Living tree | Implied Bill of Rights | Dialogue principle | Interjurisdictional immunity

  Results from FactBites:
 
Constitution Act, 1867 - Wikipedia, the free encyclopedia (1898 words)
The British North America Act, 1867 established the Dominion of Canada by fusing the North America British colonies of the Province of Canada, the Province of New Brunswick, and Nova Scotia.
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 constitutional conference, ironically, was held on Prince Edward Island, in Charlottetown.
uni.ca - Constitution Act 1867 (6323 words)
The Constitution of the Executive Authority in each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act.
The Provisions of this Act referring to the Lieutenant Governor in Council shall be construed as referring to the Lieutenant Governor of the Province acting by and with the Advice of the Executive Council thereof.
Constitution Act, 1982 Part I Canadian Charter of Rights and Freedoms Whereas Canada is founded upon the principles that recognize the supremacy of God and the rule of law: Guarantee of Rights and Freedoms 1.
  More results at FactBites »

 
 

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