Section 91 of the Constitution Act, 1867
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| Long title | An Act for the Union of Canada, Nova Scotia and New Brunswick, and the Government thereof; and for Purposes connected therewith. |
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| Citation | 1867 c. 3 |
| Territorial extent | Canada |
| Dates | |
| Royal assent | March 29, 1867 |
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Status: Current legislation
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| Text of statute as originally enacted | |
| Revised text of statute as amended | |
The Constitution Act, 1867 (originally enacted as The British North America Act, 1867, and referred to as the BNA Act), is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. The British North America Acts, including this Act, were renamed in 1982 with the patriation of the Constitution (originally enacted by the British Parliament); however, it is still known by its original name in United Kingdom records. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.
The Act begins with a preamble that declares that the three provinces New Brunswick, Nova Scotia and the Province of Canada (which would become Ontario and Quebec) have requested to form "one Dominion...with a Constitution similar in Principle to that of the United Kingdom". This description of the Constitution has proven important in its interpretation. As Peter Hogg wrote in Constitutional Law of Canada, some have argued that since the United Kingdom had some freedom of expression in 1867, the preamble extended this right to Canada even before the enactment of the Canadian Charter of Rights and Freedoms in 1982; this was a supposed basis for the Implied Bill of Rights. In New Brunswick Broadcasting Co. v. Nova Scotia, the leading Canadian case on parliamentary privilege, the Supreme Court of Canada grounded its 1993 decision on the preamble. Moreover, since the UK had a tradition of judicial independence, the Supreme Court ruled in the Provincial Judges Reference of 1997 that the preamble shows judicial independence in Canada is constitutionally guaranteed. Political scientist Rand Dyck has criticized the preamble, saying it is "seriously out of date". He claims the Constitution Act, 1867 "lacks an introduction".
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