Thursday Thinkpiece: Laws of the Constitution–Consolidated

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Laws of the Constitution: Consolidated

Author: Donald F. Bur
ISBN: 978-1-77212-490-3
Publisher: University of Alberta Press
Page Count: 960
Publication Date: November 2020
Regular Price: $250.00 (hardback)

Excerpt: From the Preface

Preface

Generally, a “constitution” is simply a foundational document or documents. Because the modern state is very complicated, there is nevertheless no precise definition of the scope of that foundation. A partial definition is given in section 52(2) of the Constitution Act, 1982, which states that the “Constitution of Canada includes” [1] and then refers in particular to a schedule of 30 documents. The word “includes” shows that this was never meant to be an exhaustive definition, [2] and, of course, this is supported by the fact that in 1867 there were seven colonies in British North America, four of which initially agreed to form the union called Canada [3]—all of which had their own constitution pre-dating the Constitution Act, 1867.

In addition to pre-confederation constitutions, from the very beginning each colony was created with a constitution “similar in Principle to that of the United Kingdom,” although this expression was initially planted in the Constitution Act, 1867. In territories acquired by conquest, this originally meant a simple appointment of a crown representative with the authority to call individuals together in a bicameral assembly to make laws. Of course, the bulk of the constitution at that time would have been based on conventions inherited from the United Kingdom. However, even when each jurisdiction created constitutional laws for their structure, many of these conventions continued. Even today, these conventions, [4] like judicial decisions, [5] provide a content to the structure created by constitutional laws.

To have a complete understanding about how a country is structured, regard could be given to a broad concept of Constitution. This would include not only the written law but also unwritten conventional rules and judicial decisions. It might also include rules dictating how primary lawmakers make law, but also on how delegated lawmakers make regulations. These all form the fabric of how the country is constituted.

For the purposes of this book, I dealt with a narrower, and more particular, definition. At its most basic, a constitution creates and regulates those entities that make law. These constitutional rules are all written, and enforceable, so from a positivist point of view they are the country’s primary laws. Moreover, because no lawmaker operates in a vacuum, I have also included material on how this country has acquired its territory, and how the Crown in each jurisdiction has acquired its property.[6]

These constitutional laws come from a variety of sources—international treaties, domestic treaties, royal proclamations, constitutional amendment proclamations, United Kingdom statutes, Canadian statutes, provincial statutes, territorial statutes, orders in counsel, commissions, letters patent, arbitrations and petitions. Different types of laws were used because of the different circumstances involved, but throughout they have added to the constitutional complexity of the country as it evolved.

Since confederation, there have been various compilations of these laws. Of particular interest are: William Houston, Documents Illustrative of the Canadian Constitution (Toronto: Books for Libraries Press, 1892); A. Shortt and A. G. Doughty, Documents Relating to the Constitutional History of Canada 1759–1791 (Ottawa: S.E. Dawson, 1907); W.P.M. Kennedy, Statutes, Treaties and Documents of the Canadian Constitution 1713–1929 (Toronto: Oxford University Press, 1930); and M. Ollivier, British North America Act and Selected Statutes (Ottawa: Queen’s Printer, 1962).

A simple compilation has a number of disadvantages. Without structural limits on a book, the compiler is authorized to insert more documents than simply constitutional laws. Thus, you see in the excellent books by Kennedy and by Shortt and Doughty the inclusion of numerous letters, reports, complaints, petitions and memoranda. The inclusion of these additional materials, all of interest because of their relationship to the main subject, was understandable in the early years, when there was only a handful of actual constitutional laws.

Time seems to have resolved the first problem, and at the same time created a second problem. Since the early part of the 20th century, this country has experienced a substantial expansion of constitutional law. By 1962, therefore, Olliver could generally limit his compilation to constitutional laws and yet fill a whole book of some 660 pages. [7] As we know, however, since the last half of the 20th century, there has been a further proliferation of constitutional law. Accordingly, in the compilation by Christian L. Wiktor and Guy Tanguay, Constitutions of Canada, Federal and Provincial (New York: Oceana Publications, 1978–1987), the material has expanded to four volumes.

Size continues to be a problem in any collection that attempts to be comprehensive, but that problem is complicated by another problem—the difficulty in comprehending what is in fact current law. For some unknown reason, constitutional laws are often drafted differently from normal legislation. Normally, if a parliament or legislature seeks to repeal or amend an earlier law and replace it with a new one, it will specifically state what law is repealed or amended and how the new law reads. With constitutional laws, in most instances, the amendment or repeal of an earlier constitutional law is only implied. Even when a constitutional law specifically amends an earlier provision, it will generally not provide a revised wording in the new law. A compilation that keeps intact all of the earlier documents provides to the reader provisions that may have been expressly, or impliedly, repealed or amended. This not only adds to the size of the compilation but also to the difficulty in comprehending what are the current constitutional rules.

Consolidation deals both with the problem of a collection that contains repealed or amended provisions, and with the problem of the sheer volume of material, by deleting those provisions that no longer exist and by putting the remaining material into a form that is accessible to the reader. However, it is a difficult proposition. That is why, until now, consolidation has only been attempted in a limited manner. Elmer Drieger, working with the Department of Justice, created A Consolidation of the Constitution Acts 1867 to 1982 (Ottawa: Department of Justice, 2001). As the title suggests, this consolidation was limited only to the two major constitutional documents—the Constitution Act, 1867 and the Constitution Act, 1982. A more expansive collection was included in Bernard W. Funston and Eugene Meehan’s Canadian Constitutional Documents Consolidated (2nd ed.) (Toronto: Carswell, 2007), although even here the authors limited themselves primarily to the documents listed in the Schedule to the Constitution Act, 1982.

While a consolidation results in material that is manageable both in its size and in its accessibility to the current state of the law, to date these have lost the comprehensiveness found in compilations. Ideally, a collection of constitutional law would be both comprehensive and accessible in terms of size and readability. That is the goal of this book.

The process of creating this book has involved a number of steps. First I had to compile all of the documents. I was assisted, of course, by the compilations listed above. In addition, certain individuals provided assistance in terms of access to material that I could not otherwise find. […]

Once all of the documents had been assembled, I began examining them chronologically. Every subsequent law had to be examined to determine whether they added something new, or whether they appealed or amended an earlier provision. In the absence of express wording that an earlier provision had been amended or repealed, I exercised my judgement and removed the affected provision from the body of the text. While I have advised the reader in the footnotes regarding any amendments or repeals or if a provision has been spent, when in doubt it is important to have recourse to the original document.

When all of the cutting was complete, what was left over was our current constitution or constitutions. However, cutting provisions from laws causes those laws to lose their form. This is particularly the case where these laws, in a variety of different forms and from different sources, were in most instances never designed to fit together. To give them back their forms, I have placed all of the remaining material within 14 different parts that each describe the nature of the legal provisions within them. This has sometimes resulted in the same provision being cited in more than one part, but only because that particular provision either applies to more than one jurisdiction or to more than one theme. In doing this, I have kept the original numbering of each provision, even though I realize that the juxtaposition of different numbering systems may look a bit odd. However, I believe that the merits of organizing the laws of the constitution thematically overrides these particular problems.

There are a number of advantages to this type of re-organization. First, by separating constitutional laws into provisions that have survived, and provisions that have been repealed, spent or amended, it is possible to see the evolution of the constitution of this country. I hope that this evolution can be observed more easily in the Table of Constitutional Documents provided [see a sample here]. In this document, the bolded numbers show the provisions that are still active. Second, there have been a number of constitutional amendments over the years, many of which simply involve small changes in wording. These laws, found in separate documents compiled amongst hundreds of other documents, are often known only to the expert. By placing these amendments within their proper context, I hope that I have made them more visible. Third, in viewing constitutional provisions in a thematic way, rather than in their legislative context, they can be seen as part of a rich and diverse tapestry of constitutional rules.

Fourth, and perhaps most importantly, it has been possible to elevate certain constitutional provisions to their rightful place. The eighth part of the book is illustrative of this last point. Since confederation, the Constitution Act, 1867 (originally known as the British North America Act, 1867) has occupied the primary focus of all constitutional consideration in this country. Perhaps because it was the source of so much litigation, arising out of sections 91 and 92, it attained a sort of pre-eminence over other constitutional laws. Yet much of that Act is concerned with simply creating the structures and procedures of the Canadian Parliament. While Parliament’s structure and procedure are important constitutional laws, they are no more important than their provincial equivalents. Yet, while the 1867 Act has been widely published in constitutional sources, the equivalent provincial laws have been completely ignored. Now, in part 8, Canadian and provincial laws can be seen side by side, with their similarity in function earning the provincial constitutions an equality of status.

These laws come from various sources—from the United Kingdom, Canada, the provinces and territories, and from international treaties. Originally, the UK, Canada and the provinces made use of the same style for referencing statutes, that is by reference to a particular parliament in the reign of a particular monarch. In order to distinguish amongst laws of different jurisdictions, I have indicated in each case the jurisdictional source of the provision. In more recent legislation, the citation of the legislation is more particular to the legislating jurisdiction.

The reader should also bear in mind that the year given to a particular enactment may be different from the date on which the Act came into force. There are a couple of rules that affect the date. First, until 1793, all Acts passed in a session of Parliament were deemed to be passed in the year in which the session began rather than the date on which they received royal assent. Second, until 1752, the old-style calendar year started on Lady Day or March 25. Both of these quirks are noticeable with regard to the Bill of Rights, which is assigned the date 1688, even though it did not receive royal assent until December 16, 1689. However, the parliamentary session began on February 13, which under the old style of calendar was considered as 1688, and the Act was treated as being enacted at the beginning of this session.

Of course, the copyright in the original document remains with the jurisdiction that created it. The documents in this book are not official copies. The official Statutes and Regulations should be consulted for all purposes of interpreting and applying the law, and in order to view the law currently in force. […]

The book has been updated to its publication date, and I hope that it may provide some value to those wishing to learn about the Constitution. […]

Donald F. Bur

February 2020

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1. I have argued elsewhere that the word “Canada” in the 1982 Act was inappropriate. Whereas, prior to this Act, that word referred to the federal Parliament, in the 1982 Act, it appears to describe the country as a whole.
2. In this regard, see New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; and Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3; and, Reference re Supreme Court Act, ss. 5 and 6, [2014] 1 S.C.R. 433.
3. I am including Ontario and Quebec as separate colonies in this count, even though at the time of confederation they formed one province called Canada.
4. For example, the Manual of Official Procedures of the Government of Canada (Ottawa, 1968) was 543 pages long. An exhaustive analysis of the conventions not only of Canada, but also of the provinces and territories and of the relation of each jurisdiction to the other would likely be longer.
5. My analysis of Part vi of the Constitution Act, 1867, together with ss. 96 and 101, in Donald F. Bur, Laws of the Constitution: Distribution of Powers (Toronto: LexusNexus, 2016) comprised 1741 pages. There are, in addition, numerous voluminous books on the Canadian Charter of Rights and Freedoms.
6. My one regret is that I have not been able to include the description of land acquired by the Crown through treaty negotiations with First Nations. Part of the problem is that this material is very large. In addition, in many cases, the description of the property acquired is described in such a way that it would be virtually meaningless to most readers. I have referenced, however, sources where that material can be found.
7. Olliver did, however, include some extraneous material dealing with marriage and divorce.
8. A note that some of the letters have been modernized for readability, but all original spelling in other regards has been recorded.