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User:Mr Serjeant Buzfuz/Section 18 of the Constitution Act, 1867

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

Section 18 of the Constitution Act, 1867 (French: article 18 de la Loi constitutionnelle de 1867) is a provision of the Constitution of Canada relating to parliamentary privilege.

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

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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 18

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Section 18 reads:

Privileges, etc., of Houses
18 The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.[11]

Section 18 is found in Part IV of the Constitution Act, 1867, dealing with the legislative powers of the federal Parliament. This version of section 18 was enacted in 1875, as an amendment to the original version.[11]

Legislative history

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London Conference, 1866, where the issue of parliamentary privilege was first raised

There was no mention of parliamentary privilege in the Quebec Resolutions. The issue first appeared in the London Resolutions, as Resolution 30:

30. The powers and privileges of the House of Commons of the United Kingdom of Great Britain and Ireland shall be held to appertain to the House of Commons of the Confederation, and the powers and privileges appertaining to the House of Lords in its legislative capacity, shall be held to appertain to the Legislative Council [ie the Senate].[12]

This resolution was not included in drafts of the bill until the fourth draft. The provision took final form in the bill introduced in Parliament. Instead of the draft version which stated that the privileges of the Senate would be the same as those of the House of Lords, the final version provided that the privileges of the Canadian House of Commons and the Senate would both be the same as those of the British House of Commons. [13][14]

Section 18 has been amended once since 1867.[11] As originally enacted, section 18 provided:

18 The Privileges, Immunities, and Powers to be held, enjoyed, and exercised by the Senate and by the House of Commons and by the Members thereof respectively shall be such as are from Time to Time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof.[7]

Purpose and interpretation

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The Preamble to the Act provides that Canada is to have a Constitution "similar in principle to that of the United Kingdom", which has been held to be an additional basis for parliamentary privilege.

References

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  1. ^ Peter Hogg and Wade Wright, Constitutional Law of Canada, 5th ed. (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 (Macmillan Publishing, 1964; revised ed., Oxford University Press, 2012) online
  4. ^ Christopher Moore, 1867 — How the Fathers Made a Deal (McClelland & Stewart, 1997).
  5. ^ Ben Gilding, "The Silent Framers of British North American Union: The Colonial Office and Canadian Confederation, 1851–67", (2018) 99:3 Canadian Historical Review.
  6. ^ a b Hogg and Wright, Constitutional Law of Canada, para. 1:2.
  7. ^ a b British North America Act, 1867 (UK), 30 & 31 Vict., 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 c Constitution Act, 1867, s. 18.
  12. ^ London Resolutions, Resolution 30.
  13. ^ "Fourth Draft of the British North America Act" (undated), clause 121, in G.P. Browne and Janet Ajzenstat (eds.) Documents on the Confederation of British North America (McGill-Queen's University Press, 2009, reprint of the 1969 edition), Document 85, p. 300.
  14. ^ "Final Draft of the British North America Act" (February 9, 1867), clause 18, Browne and Ajzenstat, Documents, Document 86, p. 306.
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