Introduction

Over the last five weeks or so, two of my closest constitutional compatriots have independently of one another brought up the same issue with me on the subject of section 16 of the Constitution Act, 1867, so I thought that this wonderful nerdy serendipity called for a fun little blogpost on the subject. They certainly came to the right person for that discussion. They also brought up the issue on Twitter as well in a bit of fun about the NCC and the atrocious proposal to attach a giant radiator to the Chateau Laurier.

https://twitter.com/PhilippeLagasse/status/1149378348919009280

https://twitter.com/SkinnerLyle/status/1149785062742745089

I first presented a paper on “Canada’s Legal-Constitutional Continuity, 1791-1867” at the “Constitution at 150” Conference at the Université de Montréal in May 2017. My journal article of the same name will come out in 2020 in the Journal of Parliamentary and Political Law. In that manuscript, I made the following observation about section 16 of the Constitution Act, 1867:

On 1 July 1867, the parliament buildings, Legislative Assembly, and Legislative Council of the Province of Canada became the parliament buildings, House of Commons, and Senate of the Dominion of Canada. Alpheus Todd himself, who had served as the last Parliamentary Librarian of the Province of Canada, became the first Parliamentary Librarian of the Dominion of Canada. Ottawa, the last capital city of the Province of Canada, became the capital of the Dominion of Canada pursuant to section 16 of the British North America Act: “Until the Queen otherwise directs, the Seat of Government of Canada shall be Ottawa.” In theory, the Prime Minister of Canada could send an Instrument of Advice to the Queen that she issue a proclamation declaring that a new city be made the capital of the Dominion of Canada. In practice, this would pose great logistical difficulties and is unlikely to occur.[1]

The Province of Canada’s Capital Oscillation

The Province of Canada’s capital city cycled through several cities, which reinforced the united province’s tenuousness and political instability. Between 1841 and 1844, the legislature met in Kingston. The legislature then sat in Montreal from 1844 until Loyalist rioters destroyed the building in 1849 in protest against the Rebellion Losses Act. The seat of government then alternated between Toronto (1850-1851 and 1855-1859), and Quebec City (1852-1854 and 1860-1865).[2] The legislature in Quebec City also burned down in 1854, by accident rather than by arson. The Province of Canada did not formally receive a permanent capital city until 1857-1858, when Queen Victoria named on the advice of Sir Edmund Head, Governor General of the Province of Canada, and Henry Labouchere, the Colonial Secretary. The selection of the capital city being an Imperial matter, the Governor General reported directly to his superior, the Colonial Secretary, without the knowledge of and without advice from the government of the Province of Canada, led by Sir John A. Macdonald and George-Etienne Cartier.[3] Governor General Head frankly stated his reason for recommending Ottawa in his memorandum to Labouchere:

On the whole, therefore, I believe that the least objectionable place is the City of Ottawa. Every city is jealous of every other city, except Ottawa. The second vote of every place (save, perhaps, for Toronto) would be given for Ottawa. The question, it must be remembered, is essentially one of compromise. Unless some insuperable bar exists to its selection, it is expedient to take that place which would be most readily acquiesced in the majority.[4]

Incidentally, the Province of Canada’s first (and last) legislative session in Ottawa did not take place until 1866, since the new buildings needed to be constructed from scratch. Section 16 allowed the Dominion of Canada to hedge its bets and change its capital city once again if necessary – and the history of the Province of Canada suggested that it would be. The selection of Canada’s capital city had broader Imperial implications, especially with respect to the United States and the prospect of another invasion of British North America, and so London would have wanted to reserve this authority of choosing a new capital city for the British cabinet, even after Confederation.

The question of the Dominion of Canada’s capital city generated no controversy at all during the Confederation Debates, according to G.P. Browne’s authoritative tome.[5] The records show that elected representatives throughout British North America – the Province of Canada and in the Atlantic alike –readily agreed at both the Quebec Conference in 1864 and at the London Conference in 1866 that Ottawa, the capital of the Province of Canada, would continue as the capital of the Dominion of Canada after Confederation. The factors that made Ottawa acceptable for the Province of Canada – central location between Toronto, Kingston, Montreal, and Quebec City; symbolic middle ground between English and French; access to the Rideau Canal and the St. Lawrence; and a readily defensible location with existing military infrastructure and Crownland – made it equally appropriate as a capital of the Dominion of Canada.[6] Item 52 of the Quebec Resolutions says, “The Seat of Government of the Federated Provinces shall be Ottawa, subject to the Royal Prerogative.”[7] This carried over as item 51 of the London Resolutions in 1866: “The Seat of Government of the Confederation shall be Ottawa, subject to the Royal Prerogative.”[8]

Section 16 of the British North America Act clarified what “royal prerogative” means and opted not to name the Dominion of Canada the “Federated Provinces” or “the Confederation.” It says simply: “Until the Queen otherwise directs, the Seat of Government of Canada shall be Ottawa.”

Why Sections 16 and 26 Remain Active Provisions of the Constitution Act, 1867

As I alluded but did not delve into too deeply in my upcoming journal article, I would argue that Section 16 of the Constitution Act, 1867 remains operative in the strict legal sense, but that it could only have been used one time, and that the massive logistical undertaking and practical considerations of changing capital cities will ensure that section 16 remains dormant. I would further argue that the constitutional evolution of the Dominion of Canada in the early to mid-20^th century has rendered the sections of the Constitution Act, 1867 which refer to the “Queen in Council” (the Disallowance of federal statutes by Imperial Order-in-Council under section 56 and the Reservation of federal statutes for Royal Assent or veto by Imperial Order-in-Council under section 57) dead letters, standing sentinel like petrified trees and testament to an Imperial relationship that has gone extinct. In contrast, the superficially similar provisions which refer only to the “Queen,” like section 26 on the appointment of additional Senators and section 16, remain potent.

Indeed, the Mulroney government invoked section 26 in September 1990 through a comedically complicated chain of executive instruments made necessary by the layering of advice contained in section 26:[9]

1. 26 September 1990: the Mulroney government presented an Order-in-Council 1990-2061 for the Governor General’s signature. This advised His Excellency to “recommend to Her Majesty the Queen that Letters Patent, to which Her Majesty may be graciously pleased to affix Her signature thereto, do issue under the Great Seal of Canada directing, pursuant to section 26 of the Constitution Act, 1867, that eight Members be added to the Senate in order that the Governor General may by Summons to eight qualified persons, representing equally the Four Divisions of Canada, add to the Senate accordingly”;
2. 27 September 1990: The Queen of Canada issued Letters Patent under the Great Seal of Canada stating: “We, on the recommendation of Our Governor General, do by these Presents direct, pursuant to section 26 of the Constitution Act. 1867, that eight Members be added to the Senate of Canada”;
3. 27 September 1990: Prime Minister Mulroney issued instrument of advice 1990-13 to Governor General Ray Hnatyshyn that he summon eight additional Senators, “representing equally the Four Divisions of Canada, to the Senate”: Dr Wilbert Joseph Keon, Mr. Michael Arthur Meighen, Mr. Norman Grimard, Mrs. Therese Lavoie-Roux, Mr. James W. Ross, Mr. John Michael Forrestall, Mrs. Janis Johnson, Mr. Eric Arthur Bresnton.[10]

Originally, the “Queen” in these provisions referred to the one and indivisible Imperial Crown, where the Sovereign would act for Canada but on the advice of British ministers. The Sovereign therefore appointed the Governor General of Canada on the advice of British Ministers, and the Governor General then reported directly to the Colonial Secretary and represented the Imperial Crown. But in light of the constitutional evolution of the Dominion and Canada and the multiplication of the Imperial Crown into a personal union of separate Crowns for each self-governing Realm, “Queen” in the Constitution Act, 1867 now refers to the Queen of Canada who acts upon the advice of Canadian ministers. Sections 16 and 26 therefore survived Canada’s evolution from self-governing Crown colony to independent and sovereign state under its own separate Crown. In particular, if a Canadian Prime Minister had ever wanted to invoke section 16 before 1931, the constitutional advice would have snaked its way up the chain from the Prime Minister to the Governor General of Canada, who would, in turn, have passed along the recommendation to the Colonial Secretary. If the Colonial Secretary agreed, then either he would have put the question to the full cabinet, which would then have presented an Order-in-Council for the Sovereign’s signature, or the Colonial Secretary would have advised the Sovereign directly that Letters Patent or a proclamation be issued.

Prior to 1931, invoking section 26 followed precisely that procedure. In 1874, the Ministry led by Minister Alexander Mackenzie, the first Liberal Prime Minister since Confederation, advised Governor General Lord Dufferin to recommended that section 26 be invoked and that additional Senators be summoned, but Colonial Secretary Lord Kimberley decided not to recommend the additional appointments to Queen Victoria on the grounds that section 26 should only “provide a means of bringing the Senate into accord with the House of Commons in the event of a collision of opinion between the two Houses.”[11] Mackenzie wanted to invoke section 26 pre-emptively simply because the Liberals lacked a majority in the Senate, not because the Conservative majority in the Senate had blocked any specific legislation.[12] Prime Minister Mulroney’s use of section 26 certainly did meet Lord Kimberley’s test because the Liberal majority continued to block several confidence measures, like the bill to establish the Goods and Services Tax. Henry Davis predicted in the Manual of Official Procedure of the Government of Canada in 1968 what the Mulroney government did in 1990: “Today the United Kingdom Government would not become involved. A recommendation from the Governor General would be put before the Queen who would be bound to accede to it.”[13]

We should have repealed sections 56 and 57 upon Patriation; Conservative MP Scott Reid actually introduced a motion in January 2014 that the House of Commons pass the resolution necessary for a constitutional amendment (presumably under the General Amending Procedure but perhaps under the Unanimity Procedure) to repeal both the federal and provincial reservation and disallowance provisions of the Constitution Act, 1867. Reid quite rightly pointed out that these provisions are “not compatible with Canada’s status as a Sovereign State or with the direct Relationship between the Queen, the Parliament of Canada, and the Queen’s Canadian Ministers that exists under the terms of the Statute of Westminster, 1931, and has therefore fallen into Desuetude.”[14] Scott Reid has demonstrated a keen interest and expertise over these subjects over the years, so I presume that he worded his amendment to strike out the words “in Council” from section 57 but leave the rest of the section intact so that the Reservation Procedure could morph into a clear means of allowing the Queen of Canada to give Royal Assent to Canadian bills for special occasions, because some scholars like Barry Strayer have argued that the Queen of Canada cannot exercise Royal Assent under the primary provision of section 55 of the Constitution Act, 1867.[15] But in reality, George VI as King of Canada did grant Royal Assent to six bills on the Royal Tour of 1939, so such an amendment would merely remove any doubt.[16]

Conclusion

In conclusion, the Prime Minister could issue an instrument of advice to the Queen of Canada to issue an executive instrument (probably by proclamation but perhaps by letters patent) that would move Canada’s federal capital from Ottawa to somewhere else (presumably still within Canada though) pursuant to section 16 of the Constitution Act, 1867. But like bee’s sting, section 16 would become spent after its first and only use. Section 16 does not confer an unlimited and general authority to move Canada’s federal capital multiple times. I base that interpretation on standard logical grammatical meaning, which, of course, would not necessarily correspond to how lawyers conduct statutory interpretation.

“16. Until the Queen otherwise directs, the Seat of Government of Canada shall be Ottawa.”

The main clause “the Seat of Government of Canada shall be Ottawa” remains in force, and Ottawa obligatorily remains the capital city by default if the Sovereign does nothing. That has indeed been the case since 1 July 1867 when that provision became law, so Ottawa has remained the federal capital city. Standard grammar in the English language means that the subordinate clause “Until the Queen otherwise directs” depends upon the main clause “the Seat of Government of Canada shall be Ottawa.” In other words, the authority contained in the subordinate clause allowing the Queen to name a new capital on ministerial advice depends upon Ottawa being the capital in the first place. Once the Sovereign promulgates an executive instrument on prime ministerial advice pursuant to section 16, “the Seat of Government of Canada” would no longer be in Ottawa, and the conditional authority granted in the subordinate clause would therefore become spent. If section 16 became spent, the Parliament of Canada could then provide for subsequent changes in capital city in accordance with its head of legislative power under section 91 of the Constitution Act, 1867.

Similarly, sections 40 and 41 of the Constitution Act, 1867, respectively, established electoral districts for the seats in the House of Commons and continued the Province of Canada’s electoral law to the Dominion of Canada begin, and they begin with the subordinate clause “Until the Parliament of Canada otherwise provides.” These transitional clauses provided continuity between the Province and Dominion of Canada, and the Department of Justice now regards them both as spent because the Parliament of Canada otherwise provided for these laws in the early years of the Dominion in the 1870s. In addition, section 25 of the original British North America Act, 1867 provided that Queen Victoria would appoint the first group of Senators for the Dominion of Canada; logically, this provision became a dead letter immediately after the Queen invoked it:

25.  Such Persons shall be first summoned to the Senate as the Queen by Warrant under Her Majesty’s Royal Sign Manual thinks fit to approve, and their Names shall be inserted in the Queen’s Proclamation of Union.

Perhaps a Prime Minister could invoke Section 16 as an exercise in reinforcing Canada’s sovereignty over its Arctic landmass by moving the capital city to, say, Whitehorse. We could also create a proper federal district and abolish the ghastly National Capital Commission. If we moved the federal capital to somewhere in the territories under section 16 of the Constitution Act, 1867, then the Parliament of Canada alone could repeal the National Capital Act and create a new federal district from within Yukon, since the territories fall under the ultimate jurisdiction of the federal parliament and since the amending procedure under section 43 (a) of the Constitution Act, 1982 only applies to “any alteration to the boundaries between provinces” but not to creating new territories from existing territories. Parliament most recently exercised that authority by carving Nunavut out of Northwest Territories through the Nunavut Act.

Or perhaps we could move the capital city to more temperate climes on Vancouver Island, or to drier, sunnier areas on the Prairies – or anywhere else in Canada that did not once sit on a malaria-ridden swamp. Many federal civil servants would no doubt welcome the escape from Ottawa’s gross humid summers.

Similar Posts:

• My Presentation to the Constitution at 150 Conference

Notes

[1] James W.J. Bowden, “Canada’s Legal-Constitutional Continuity, 1791-1867,” Journal of Parliamentary and Political Law: forthcoming, 2020.

[2] Suzanne Langevin (ed), La Procédure parlementaire du Québec, 3e édition (Québec City: Assemblé national, 2012),, 24-25.

[3] David B. Knight, Choosing Canada’s Capital: Conflict Resolution in a Parliamentary System (Ottawa: Carleton University Press, 1991), 242.

[4] David B. Knight, Choosing Canada’s Capital: Conflict Resolution in a Parliamentary System (Ottawa: Carleton University Press, 1991), 254.

[5] G.P. Browne, editor, Documents of the Confederation of British North America (Montreal-Kingston: McGill-Queen’s University Press, 2009 reprint).

[6] Canada, Department of Public Works and Government Services, “History of the Hill,” 18 May 2017; Canada, National Capital Commission, “A Capital in the Making,” 5 December 2005.

[7] G.P. Browne, editor, Documents of the Confederation of British North America (Montreal-Kingston: McGill-Queen’s University Press, 2009 reprint), 162.

[8] G.P. Browne, editor, Documents of the Confederation of British North America (Montreal-Kingston: McGill-Queen’s University Press, 2009 reprint), 226.

[9] Constitution Act (Re) (B.C.C.A.), [1991] B.C.J. No. 244 pages 5-6.

[10] Canada, Prime Minister’s Office, Instrument of Advice 1990-13, 27 September 1990. Obtained from ATIP 2015-00304.

[11] Mollie Dunsmuir, “The Senate: Appointments Under Section 26 of the Constitution Act, 1867,” Library of Parliament Briefing BP-244E (August 1990): no page number in the HTML version.

[12] Canada. Privy Council Office, PC 1873-1711, “Appointment of Six Additional Senators Under Section 26 of the British North America Act, 1867,” 22 December 1873.

[13] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa: Government of Canada, 1968): 552.

[14] Scott Reid, [“M-488”], in House of Commons, Notice Paper, no. 35, 41^st Parliament, 2^nd Session, 27 January 2014.

WHEREAS the Power of the Queen in Council under section 56 of the Constitution Act, 1867, to disallow Acts of the Parliament of Canada is not compatible with Canada’s status as a Sovereign State, and has therefore fallen into Desuetude;

WHEREAS the Power of the Queen in Council under section 57 of the Constitution Act, 1867, to deny Assent to Bills of the Parliament of Canada is not compatible with Canada’s status as a Sovereign State or with the direct Relationship between the Queen, the Parliament of Canada, and the Queen’s Canadian Ministers that exists under the terms of the Statute of Westminster, 1931, and has therefore fallen into Desuetude;

AND WHEREAS the Power of the Governor General under section 90 of the Constitution Act, 1867, to disallow Acts of the Legislatures of the several Provinces and the power of the Lieutenant Governors of the Provinces to reserve Bills of the legislatures of the several provinces for the signification by the Governor General of the Queen’s Pleasure are powers that are not compatible with the political maturity that has been attained by the Provinces of Canada, and have therefore fallen into Desuetude;

NOW, THEREFORE, the House of Commons resolves that His Excellency the Governor General be authorized to issue a proclamation under the Great Seal of Canada in accordance with the schedule hereto:

SCHEDULE

AMENDMENT TO THE CONSTITUTION OF CANADA

1. The Constitution Act, 1867, is amended by deleting section 56.
2. The Constitution Act, 1867, is amended in section 57 by deleting the following words: “in Council”.
3. (1) The Constitution Act, 1867, is amended in section 90 by deleting the following words: “the Disallowance of Acts, and the Signification of Pleasure on Bills reserved,”.

(2) The Constitution Act, 1867, is amended in section 90 by deleting the following words: “and for a Secretary of State, of One Year for Two Years,”.

4. This amendment may be cited as the Constitution Amendment, 2014 (Disallowance and Reservation) and a reference to the Constitution Acts, 1867 to 1982, shall be deemed to include a reference to the Constitution Amendment, 2014 (Disallowance and Reservation).

[15] Barry Strayer, Canada’s Constitutional Revolution (Edmonton: The University of Alberta Press, 2013) , 101.

[16] Ibid.