A Consolidation (April 1, 1999)
DEPARTMENT OF JUSTICE CANADA
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, and the text of the Constitution Act, 1982, as amended since its enactment. The Constitution Act, 1982 contains the Canadian Charter of Rights and Freedoms and other new provisions, including the procedure 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 in the Schedule, 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 (U.K.) 1982, c. 11. It is set out in this consolidation as a separate Act after the Constitution Act, 1867, and the Canada Act 1982 is contained in the first footnote thereto.
The law embodied in the Constitution Act, 1867 has been altered many times otherwise than by direct 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 with only such subsequent enactments as directly 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.
The various classes of enactments modifying the text of the Constitution Act, 1867, have been dealt with as follows:
I. Direct Amendments
Repealed provisions (e.g. section 2) have been deleted from the text and quoted in a footnote.
Amended provisions (e.g. section 4) are reproduced in the text in their amended form and the original provisions are quoted in a footnote.
Added provisions (e.g. section 51A) are included in the text.
Substituted provisions (e.g. section 18) are included in the text, and the former provision is quoted in a footnote.
II. Indirect Amendments
1. Alterations by United Kingdom Parliament
Provisions altered by the United Kingdom Parliament otherwise than by direct amendment (e.g. section 21) are included in the text in their altered form, and the original provision is quoted in a footnote.
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 footnote.
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 a footnote reference made to the Act of the Parliament of Canada effecting the alteration.
4. Alterations by the Legislatures
Provisions subject to alteration by legislatures of the provinces, either by virtue of specific authority (e.g. sections 83, 84) or by virtue of head 1 of section 92 (e.g. sections 70, 72), have been included in the text in their original form, but the footnotes refer to the provincial enactments effecting the alteration. Amendments to provincial enactments are not referred to; these may be readily found by consulting the indexes to provincial statutes. The enactments of the original provinces only are referred to; there are corresponding enactments by the provinces created at a later date.
III. Spent Provisions
Footnote references are made to those sections that are spent or are probably spent. For example, section 119 became spent by lapse of time and the footnote reference so indicates; on the other hand, 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 footnote reference therefore indicates the section as being probably spent.
The enactments of the United Kingdom Parliament or the Parliament of Canada, and Orders in Council admitting territories, referred to in the footnotes, may be found in Appendix II to the Revised Statutes of Canada, 1985, and in the annual volumes of the statutes of Canada.
The reader will notice inconsistencies in the capitalization of nouns. 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.
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This consolidation contains material prepared by the late Dr. E. A. Driedger, Q.C. The material has been updated where necessary but the Department gratefully acknowledges Dr. Driedger's earlier work.
THE CONSTITUTION ACT, 1867
30 & 31 Victoria, c. 3. (U.K.)
(Consolidated with amendments)
An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith (29th March 1867)
Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:
And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire:
And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the
Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared:
And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America: (1
1. This Act may be cited as the Constitution Act, 1867. (2)
2. Repealed. (3)
Declaration of Union
3. It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six Months after the passing of this Act, the Provinces of
Canada, Nova Scotia, and New Brunswick shall form and be One Dominion under the Name of Canada; and on and after that Day those Three Provinces shall form and be One Dominion under that Name accordingly. (4)
Construction of subsequent Provisions of Act
4. Unless it is otherwise expressed or implied, the Name Canada shall be taken to mean Canada as constituted under this Act. (5)