Constitutional Documents

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.

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  Repealed provisions (e.g. section 2) have been deleted from the text and quoted in a footnote.

• 2. Amendments

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

• 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 a footnote.

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 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 the legislatures of the provinces, either by virtue of specific authority (e.g. sections 83 and 84) or by virtue of head 1 of section 92 (e.g. sections 70 and 72), have been included in the text in their original form but the footnotes 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

Footnote references are made to those sections that are spent or probably spent. For example, section 119 became spent by lapse of time and the footnote 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 footnote 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 footnotes 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. 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.

French Version

The French version of the Constitution Act, 1867 is the conventional translation. It does not have the force of law since this Act was enacted by the Parliament of the United Kingdom in English only.

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 that Act] shall be prepared by the Minister of Justice of Canada 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 in Parliament in December 1990. The French version of the Final Report is available on the Justice Canada Website at the following URL: http://www.justice.gc.ca/fra/pr-rp/sjc-csj/constitution/loireg-lawreg/index.html.

Acknowledgement

This consolidation of the Constitution Acts, 1867 to 1982 contains material prepared by the late Dr. E. A. Driedger, Q.C. The material has been updated where necessary. The Department of Justice gratefully acknowledges Dr. Driedger’s earlier work.