“Canada’s Legal-Constitutional Continuity, 1791-1867” Published in the Journal of Parliamentary and Political Law


Some of you might be interested; some of you might not. The JPPL published an updated version of the paper that I first presented back in May 2017 at the Université de Montréal’s “Constitution at 150” conference.

This article presents a splendidly irrelevant yet manifestly incontrovertible argument with no particular contemporary application, as far as I can tell: “Canada” as a polity dates back to 1791, not 1867, because Upper Canada and Lower Canada continued as the Province of Canada, which in turn, continued as the Dominion of Canada and as Ontario and Quebec. The Imperial Parliament established Upper Canada and Lower Canada with Crowns-in-Parliament, including elected Legislative Assemblies through the Constitutional Act, 1791, subsequently merged these polities into the Province of Canada through the Act of Union, 1840, and then bifurcated the Province into the Dominion of Canada on the one hand and Ontario and Quebec on the other through the British North America Act, 1867.

The germ of the idea really first came to me in 2015 after reading a passage in Alpheus Todd’s Parliamentary Government in the British Colonies where he states matter-of-factly that Sir John A. Macdonald’s second-last term as Prime Minister went from 1864 to 1873, rather than 1867 to 1873. This, in turn, led me to ask why Todd – a contemporary of the Confederation Debates and Parliamentary Librarian of both the Province and Dominion of Canada – would take such a statistic for granted. I then went through the Act of Union, 1840 and the British North America Act, 1867 and found every instance of “continue” in their provisions. There are quite a lot of them, as it turns out. Canadians in the 19th century readily and implicitly understood the fact of this continuity because they had seen the parliament buildings, executive government, and capital city of the Province continue seamlessly into those of the Dominion. The last group of Legislative Councillors of Canada West and Canada East even became the first group of Senators for Ontario and Quebec, appointed by Her Majesty Queen Victoria by the same proclamation which promulgated the BNA Act into force. I catalogue numerous other examples of how institutions continued from the Province to the Dominion upon Confederation (there were fewer governmental institutions to continue from the Canadas to the Province in the 1840s), from the Geological Survey, banknotes, and the Decennial Census.

I have uploaded a copy of the original British North America Act, 1867 here — which is to say, the statute of the Imperial Parliament that received Royal Assent on 29 March 1867 and entered into force on 1 July 1867, the beginning of the fiscal year throughout the British Empire at the time. (In Australia and New Zealand, the fiscal year still begins on 1 July). In this copy, I highlighted instances of “continue” and referred to this edition throughout my research.

Alas, I just discovered on the evening of 22 December another keyphrase which reinforces my argument and for which I should have searched: “Parliament of Great Britain.” Once more, I stumbled upon this little detail while looking for something else entirely. (Hopefully, I’ll be able to provide you all an update on that in the first half of 2021). This phrase “Parliament of Great Britain” appears in section 12 (dealing with statutory authorities of the Governor General), section 23 (pertaining to the qualifications of Senators), section 65 (a direct equivalent of section 12 with respect to the Lieutenant Governors of Ontario and Quebec), and section 129 (which continues all existing laws throughout the Dominion and provinces). The phrase appears as “the Parliament of Great Britain or the Parliament of the United Kingdom of Great Britain and Ireland.” That formulation takes into account the Act of Union, 1801, by which the Westminster Parliament abolished the Crown of Ireland and Parliament of Ireland, destroying Ireland as a separate kingdom in a dual monarchy or personal union with Great Britain and subsuming the island as part of a broader union state. The Westminster Parliament thus underwent a transformation from the Parliament of Great Britain to the Parliament of the United Kingdom of Great Britain and Ireland; in fact, the 18th Parliament of Great Britain, elected in 1796, simply became by proclamation the 1st Parliament of the United Kingdom of Great Britain and Ireland even without fresh elections. His Majesty George III went from “King of Great Britain, France, and Ireland [etc]” to “King of the United Kingdom of Great Britain and Ireland [etc],” dropping also the centuries-old claim to France after its revolution, regicide, and the Napoleonic Wars. In fact, the Act of Union, 1840 included similar phrasing. Section 40 (or XL for the snobbish legislative drafters of the 1840s) of the Act of Union, 1840 serves as a direct equivalent to section 12 of the British North America Act, 1867 and contains the phrase “notwithstanding this Act, and any other Act or Acts passed in the Parliament of Great Britain, or in the Parliament of the United Kingdom of Great Britain and Ireland.”

But why would the British North America Act, 1867 bother to make this distinction? The only logical reason is that it was taking into account any statute law going back to at least 1791 as far as the Dominion of Canada, Ontario, and Quebec were concerned, and thus to the Constitutional Act, 1791 through which the Parliament of Great Britain created Upper Canada and Lower Canada. Sections 12 and 65 take into account all statutes affecting the Governor General and Lieutenant Governors which extend back to 1791 and, in the cases of New Brunswick and New Scotland, stretching even earlier into the 18th century. Section 23 takes into account the possibility that some Senators appointed for the 1st Parliament of Canada in 1867 could have been 66 years old or older and naturalised as British subjects before 1801. And section 129 acknowledges that some statute laws in force in Canada, Ontario, and Quebec could date back to 1791, and that those in New Brunswick and New Scotland could pre-date even that year, which in either case would mean that the Parliament of Great Britain enacted them.

In the 19th century, and probably up until the 1920s or so, the fact that Upper Canada & Lower Canada, the Province of Canada, and the Dominion of Canada form an unbroken line as continuators remained common knowledge amongst historians, lawyers, judges, and probably most politicians themselves. But as with many things, this knowledge died out at some point by the mid-20th century, perhaps as early as the Inter-War Period, and would strike most 21st-century observers — especially those anti-monarchist pedants who insist that “Canada didn’t exist during the War of 1812” and see 1867 as a Year Zero — as preposterous absurdity, yet it remains true all the same. The fact inhabits the text of the Constitution Act, 1867, with other clues scattered throughout Canadian historical literature, waiting to be discovered by anyone who cared to read it.

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About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively in my field. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
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2 Responses to “Canada’s Legal-Constitutional Continuity, 1791-1867” Published in the Journal of Parliamentary and Political Law

  1. Donald Bur says:

    There is a great deal of confusion in this country because of the word “Canada”. In section 101 of the Constitution Act, 1867, when dealing with the federal courts, the courts have treated that word as referring only to the federal government. When dealing with the SCC, however, it has been treated as the country as a whole. The former, in my view, is the correct view.
    There is a lot of references to “continue” in the 1867 Act, but the things that continue are things like executive authority and some of the provinces. Whether Canada as a province continues as Canada the federal government depends on a different word—constitutes.
    Canada, as a province, has as you point out has already been constituted or created. That is dealt with in section 6 where it specifically refers to the “Province of Canada” as “formerly constituted”. Does that mean that Canada, the federal government, is also formerly constituted? The answer must be no.
    Section 4 defines “Canada” to mean “Canada as constituted under this Act”. The province of Canada was not constituted by the 1867 Act. In fact, as it expressly points out, it was formerly constituted. The only thing “constituted” under the 1867 Act was the federal government. In fact, because the executive government was continued, the only part of Canada was constituted was its legislative authority. That is clear from the preamble to the 1867 Act when it states: “not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared”

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  2. wilfredday says:

    Good documentation. But the only thing I find surprising is that “this knowledge died out at some point by the mid-20th century.” I missed seeing that.

    Now, next you might research what was the social reality underlying the creation of the polity in 1791. In 1774 the first continental congress met in Philadelphia. Quebec, Saint John’s Island, and Nova Scotia, although invited, declined to attend, and declined again in 1775. By no coincidence, the 1774 Quebec Act had satisfied many grievances in Quebec, and was considered by the American colonists to be one of the “Intolerable Acts” although unrelated to the other “Intolerable Acts.”

    It took until 1791 for Canada to become a polity. In what year or years did it become a reality?

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