User:Mr Serjeant Buzfuz/Section 4 of the Constitution Act, 1867

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Royal Proclamation which brought the Act into force on July 1, 1867

Section 4 of the Constitution Act, 1867 (French: article 4 de la Loi constitutionnelle de 1867) is a provision of the Constitution of Canada relating to the meaning of the name "Canada".

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[edit]

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 4[edit]

Section 4 reads:

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.[11]

Section 4 is found in Part II of the Constitution Act, 1867, dealing with the union.

Legislative history[edit]

Neither the Quebec Resolutions nor the London Resolutions dealt with the name of the new country, leaving it to the formal choice of the Queen. However, by the time of the London Conference in 1866, there was general agreement among the delegates that the name would be Canada, which they then recommended.[12]

Section 4 was not included in the drafts of the Act until the final draft.[13] As originally enacted, it read as follows:

4 The subsequent Provisions of this Act shall, unless it is otherwise expressed or implied, commence and have effect on and after the Union, that is to say, on and after the Day appointed for the Union taking effect in the Queen’s Proclamation; and in the same Provisions, unless it is otherwise expressed or implied, the Name Canada shall be taken to mean Canada as constituted under this Act.[14]

It was amended by a British statute law revision act in 1893, which deleted the first part of the sentence.[15] There is no indication that the British government consulted the government of Canada about the amendment.[16] Section 4 has not been amended since 1893.[11]

Purpose and interpretation[edit]

The initial wording, as originally adopted in 1867, was a transitional provision, giving guidance on the implementation of the statute, since it would come in force on proclamation, rather than immediately on royal assent. This initial wording was spent once the Act was in force and was eventually repealed by the British Parliament by the Statute Law Revision Act, 1893.

The second part of the section, preserved in the current version, is a definitional section. The word "Canada" is used in the Act to refer to the new country, but it also occurs in references to the Province of Canada, Lower Canada, and Upper Canada. The provision indicates that when "Canada" is used in the Act, it generally refers to the new country.[17]

Related provisions[edit]

Section 6 of the Act refers to the Province of Canada, Upper Canada, and Lower Canada.

References[edit]

  1. ^ Peter Hogg and Wade Wright, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters (looseleaf; current to 2022), para. 1:4.
  2. ^ a b Constitution Act, 1982, s. 52, s. 53, and Schedule, item 1.
  3. ^ a b Donald Creighton, The Road to Confederation (Toronto: Macmillan Publishing, 1864; 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. ^ a b 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. ^ a b Constitution Act, 1867, s. 4.
  12. ^ Creighton, The Road to Confederation, p. 421.
  13. ^ 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): "Final Draft of the British North America Act" (February 9, 1867), clause 4 (Document 86, p. 303).
  14. ^ British North America Act, 1867, s. 4.
  15. ^ Statute Law Revision Act, 1893, 56-57 Vict., c. 14 (UK).
  16. ^ F.R. Scott, "Case and Comment: Forgotten Amendments to the Canadian Constitution", Canadian Bar Review (1942), vol 20, no 4, 1942 CanLIIDocs 59.
  17. ^ W.H. McConnell, Commentary on the British North America Act (Toronto: MacMillan Co. of Canada, 1977), p. 26.
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