Section 2 of the Constitution Act, 1867

Proclamation bringing the Constitution Act into force, July 1, 1867

Section 2 of the Constitution Act, 1867 (French: article 2 de la Loi constitutionnelle de 1867) is a repealed provision of the Constitution of Canada relating to the monarch of Canada. It defined the term "Her Majesty the Queen" for the purposes of the Constitution Act, 1867.

The Constitution Act, 1867 is the constitutional statute which established Canada. Originally named the British North America Act, 1867, the Act continues to be the foundational statute for the Constitution of Canada, although it has been amended many times since 1867. It is now recognised as part of the supreme law of Canada.

Constitution Act, 1867

Main article: Constitution Act, 1867

The Constitution Act, 1867 is part of the Constitution of Canada and thus part of the supreme law of Canada.[1][2] The Act sets out the constitutional framework of Canada, including the structure of the federal government and the powers of the federal government and the provinces. It was the product of extensive negotiations between the provinces of British North America at the Charlottetown Conference in 1864, the Quebec Conference in 1864, and the London Conference in 1866.[3][4] Those conferences were followed by consultations with the British government in 1867.[3][5] The Act was then enacted in 1867 by the British Parliament under the name the British North America Act, 1867.[6][7] In 1982 the Act was brought under full Canadian control through the Patriation of the Constitution, and was renamed the Constitution Act, 1867.[2][6] Since Patriation, the Act can only be amended in Canada, under the amending formula set out in the Constitution Act, 1982.[8][9][10]

Text of section 2

Section 2 has been repealed. As originally enacted in 1867, section 2 read:

Application of Provisions referring to the Queen
2. The Provisions of this Act referring to Her Majesty the Queen extend also to the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland.[11]

Section 2 was found in Part I of the Constitution Act, 1867, dealing with preliminary matters.

Legislative history

The Quebec Resolutions of 1864 and the London Resolutions of 1866 both stated that the new federation was to be under the Crown of Great Britain, and the executive power was to be vested in the "Sovereign of the United Kingdom of Great Britain and Ireland", but did not provide the specific details set out in section 2.[12][13] The more specific details about succession set out in section 2 were presumably introduced by the British legislative drafter responsible for the bill, Francis S. Reilly.[14][15]

Section 2 was repealed by the British Parliament in 1893 in the Statute Law Revision Act 1893. That act repealed outdated provisions of British statutes which no longer had any effect.[16] The repeal may have been because the British Parliament had enacted a new Interpretation Act which had a general provision defining the monarch in legislation,[17] and it was felt that there was no need for a specific provision in other legislation.[18] There is no indication that the British government consulted the government of Canada about the amendment.[19]

Purpose and interpretation

Section 2 defined the term "Her Majesty the Queen" as used in the Constitution Act, 1867. Even though section 2 has been repealed, the courts have held that the references to the British monarch in the Preamble to the Constitution Act, 1867, as well as in section 9 of the Act, relating to the executive powers, establish that the British monarch is also the monarch of Canada.[20][21]

Related provisions of the Constitution Act, 1867

The Preamble to the Act states that Canada is to be a federation under the Crown of the United Kingdom of Great Britain and Ireland.

Section 9 of the Act states that the executive authority is vested in the Queen.

References

1. Peter Hogg and Wade Wright, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters (looseleaf; current to 2022), para. 1:4.
2. Constitution Act, 1982, s. 52, s. 53, and Schedule, item 1.
3. Donald Creighton, The Road to Confederation (Toronto: Macmillan Publishing, 1964; revised ed., Oxford: Oxford University Press, 2012) online.
4. Christopher Moore, 1867 — How the Fathers Made a Deal (Toronto: McClelland & Stewart, 1997).
5. Ben Gilding,"The Silent Framers of British North American Union: The Colonial Office and Canadian Confederation, 1851–67", Canadian Historical Review, Vol. 99, No. 3 (2018), pp. 349–393.
6. Hogg and Wright, Constitutional Law of Canada, para. 1:2.
7. British North America Act, 1867, 30 & 31 Vict. (UK), c. 3.
8. Hogg and Wright, Constitutional Law of Canada, para. 4:1.
9. Constitution Act, 1982, Part V.
10. Canada Act 1982 (UK) 1982, c. 11, s. 2.
11. Constitution Act, 1867, s. 2.
12. Quebec Resolutions, 1864, Resolutions 1 and 4.
13. London Resolutions, 1866, Resolutions 1 and 4.
14. Creighton, The Road to Confederation, p. 418.
15. G.P. Browne (ed.) Documents on the Confederation of British North America (Montreal and Kingston: McGill-Queen's University Press, 2009; reprint of the 1969 edition, with introduction by Janet Ajzenstat): "Rough Draft of the British North America Bill" (undated), clause 67 (document 78, p. 246); "Third Draft of the British North America Bill" (February 2, 1867), clause 2 (document 84, p. 264); "Fourth Draft of the British North America Bill", clause 2 (document 85, p. 279): "Final Draft of the British North America Bill, clause 2 (document 86, pp. 302–303).
16. Statute Law Revision Act 1893, 56-57 Vict., c. 14 (UK).
17. Interpretation Act, 1889, 52 & 53 Vict. (UK), c. 63, s. 30.
18. Thomson Irvine, "Is the British North America Act, 1916 Still on the Books? The Balfour Declaration, Constitutional Amendments and Statute Law Revision Acts" (2021) 15 J.Parl.Pol.Law 471 at 480.
19. F.R. Scott, "Case and Comment: Forgotten Amendments to the Canadian Constitution", Canadian Bar Review (1942), vol 20, no 4, 1942 CanLIIDocs 59.
20. Motard v. Attorney General of Canada, 2019 QCCA 1826; leave to appeal denied, Geneviève Motard v. Procureur général du Canada, 2020 CanLII 29392 (SCC).
21. O’Donohue v. Canada, 2003 CanLII 41404 (ON SC).