To Our Dearest Friends,
By now, you have learned about the Constitution Act, 18671 (formerly known as The British North America Act, 1867) and the Constitution Act, 1982.2
At this point, it may be worth considering that the wisest among us recognize the limitations of their knowledge. This week, we will explain that the body of Canada's constitutional law consists of far more than just these two documents, as groundbreaking as they undoubtedly were. Later in the week, we will look at some of the case law, as well as some unwritten principles that have been held to be important parts of Canada's constitution. Then we will muddy the waters further by exploring what has been called "quasi-constitutional" law. Today, we start with the black and white, exploring some of the other statutes that add to our body of constitutional law.
While we have been referring to the Constitution Act, 1867 as “The BNA Act” (and will continue to do so), it is important to note that there were a series of later acts also entitled “British North America Act” (all have since been renamed “Constitution Act” due to patriation in 1982).
Here are a few examples of statutes bearing the name British North America Act that came into force after to the 1867 Act, as well as some highlights explaining what they accomplished:
The British North America Act, 18713 allowed the Dominion of Canada to create new provinces, as well as to alter the boundaries of provinces.
The 1907 Act4 laid out the rules for the transfer of funds from the federal government to the provinces in order to support the provincial legislatures.
In 1915, an Act5 was passed that was especially important for Western Canada, as it laid out the distribution of Senate seats across the country. This Act expanded the Senate by 24 seats for the west.
In 1930, a new BNA Act6 gave the western provinces rights over natural resources extracted from public land controlled by the federal government.
Statutes were passed in 19607 and 19658 that brought in mandatory retirement ages of 75 for judges of superior courts and senators, respectively.
Of course, there is far more to constitutional statutes than laws that are simply entitled Constitution Act (formerly British North America Act). Each province that joined Canada after 1867 had its own legislation that enabled its admission.9 Additionally, in 1880, there was an Order in Council that admitted all adjacent British Territories into Canada.10 This Adjacent Territories Order was basically England's way of calling "dibs" on anything that wasn't the United States, with an eye on organizing it appropriately at a later time.
Although much of this legislation appears to be mostly administrative in nature, it is important to remember that, while the constitution is supreme to all other law, both statute and common law, no part of the constitution is deemed to have superiority over any other. For example, The Canada (Ontario Boundary) Act, 188911 is held to be just as powerful as the Charter.12
While no part of the constitution can be seen as superior to another, we would argue that there are some that are functionally more important than others. We would be negligent in our duties if we failed to recognize the great importance of another constitutional statute, namely the Statute of Westminster, 1931,13 which gave Commonwealth countries a high degree of legislative independence. While much of our constitutional law was still under the control of Britain, and would be until 1982, we finally had control over our own legislation.14
Most Humbly and Respectfully Submitted,
1 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.
2 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
3 Constitution Act, 1871 (UK), 34 & 35 Vict, c 28, reprinted in RSC 1985, Appendix II, No 11.
4 Constitution Act, 1907 (UK), 7 Edw VII, c 11, reprinted in RSC 1985, Appendix II, No 22.
5 Constitution Act, 1915 (UK), 5 & 6 Geo V, c 45, reprinted in RSC 1985, Appendix II, No 23.
6 Constitution Act, 1930 (UK), 20 & 21 Geo V, c 26, reprinted in RSC 1985, Appendix II, No 26.
7 Constitution Act, 1960 (UK), 9 Eliz II, c 2, reprinted in RSC 1985, Appendix II, No 37.
8 Constitution Act, 1965, SC 1965, c 4, part I.
9 See e.g. Manitoba Act, 1870, SC 1870, c 3; Alberta Act, SC 1905, c 3; Saskatchewan Act, SC 1905, c 42; Newfoundland Act, 12 & 13 Geo VI, c 22 (UK).
10 Adjacent Territories Order (UK), 31 July 1880, reprinted in RSC 1985, Appendix II, No 14.
11 Canada (Ontario Boundary) Act, 1889 (UK), 52 & 43 Vict, c 28.
12 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
13 Statute of Westminster, 1931 (UK), 22 Geo V, c 4, reprinted in RSC 1985, Appendix II, No 27.
14 Canada Act 1982, 1982, c 11 (UK).