Section 89 of the Constitution Act, 1867 () is a repealed provision of the Constitution of Canada relating to the first elections after Confederation in the provinces of Ontario, Quebec and Nova Scotia.

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

The Constitution Act, 1867 is part of the Constitution of Canada and thus part of the supreme law of Canada.Peter Hogg and Wade Wright, Constitutional Law of Canada, 5th ed. (Thomson Reuters (looseleaf; current to 2025)), para. 1:4.Constitution Act, 1982, s. 52, s. 53, and Schedule, item 1. 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.Donald Creighton, The Road to Confederation (Macmillan Publishing, 1964; reprinted ed., Oxford University Press, 2012); online version.Christopher Moore, 1867 — How the Fathers Made a Deal (McClelland & Stewart, 1997). Those conferences were followed by consultations with the British government in 1867.Ben Gilding,"The Silent Framers of British North American Union: The Colonial Office and Canadian Confederation, 1851–67" (2018) 99:3 Canadian Historical Review. The Act was then enacted by the British Parliament under the name the British North America Act, 1867.Hogg and Wright, Constitutional Law of Canada, para. 1:2.British North America Act, 1867, 30 & 31 Vict., c. 3 (UK). In 1982 the Act was brought under full Canadian control through the Patriation of the Constitution, and was renamed the Constitution Act, 1867. Since Patriation, the Act can only be amended in Canada, under the amending formula set out in the Constitution Act, 1982.Hogg and Wright, Constitutional Law of Canada, para. 4:1.Constitution Act, 1982, Part V.Canada Act 1982, 1982, c. 11, s. 2 (UK).

Text of section 89

Section 89 reads:

Section 89 was found in Part V of the Constitution Act, 1867, dealing with provincial constitutions. It was repealed in 1893 as part of a general statute law revision.Statute Law Revision Act, 1893, 56 Vict. (UK), c. 14, s. 1 and schedule, item "30 & 31 Vict. c. 3".

Legislative history

Development of the provision There was no provision in either the Quebec Resolutions or the London Resolutions dealing with the first provincial elections after Confederation. Both sets of resolutions simply provided that the government structure of the provinces would be determined by the provincial legislatures.Quebec Resolutions, resolution 41, 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 34, p. 160.London Resolutions, resolution 40, in Browne and Ajzenstat, Documents, document 74, p. 223.

The issue of elections was not raised until the fourth draft of the bill, during the negotiations between the delegates and the British government. That draft used wording very similar to the final wording, although it referred to the "House of Assembly" rather than the House of Commons."Fourth Draft of the British North America Bill" (undated), clause 114, in Browne and Ajzenstat, Documents, document 85, p. 299. The provision took final form in the last draft before the introduction of the bill in the British Parliament."Final Draft of the British North America Bill" (February 9, 1867), clause 92, in Browne and Ajzenstat, Documents, document 86, p. 322.

Repeal

Section 89 was repealed by the British Parliament in 1893, in the Statute Law Revision Act 1893. The revision act was of a housekeeping nature, repealing statutory provisions which no longer had any purpose. Since the first elections had been held under this provision in 1867, section 89 was no longer needed and was repealed.

There is no indication that the British government consulted the government of Canada about the repeal.F.R. Scott, "Case and Comment: Forgotten Amendments to the Canadian Constitution", Canadian Bar Review (1942), vol 20, no 4, 1942 CanLIIDocs 59.Paul Gérin-Lajoie, Constitutional Amendment in Canada (University of Toronto Press, 1950), pp. 129–130.Reference re Resolution to Amend the Constitution, 1 SCR 753, at p. 889.

Purpose and interpretation

Section 89 provided the mechanism for elections in the two new provinces of Ontario and Quebec, and also required an election in the existing province of Nova Scotia. The Lieutenant Governors of each province were to issue writs for the general elections, which were held concurrently with the elections for the new federal Parliament, and at the same voting locations. That approach would minimise confusion in the elections for the new governments.

The provinces of Ontario and Quebec were created by the Constitution Act, 1867, replacing the old Province of Canada. Elections were necessary for the new legislatures of Ontario and Quebec.

Nova Scotia was included in the provision because the previous election for the Nova Scotia House of Assembly had been held in May 1863, and by law the Assembly lasted for four years.Nova Scotia Legislature: Election and Dissolution Dates.

New Brunswick was not included in the provision because there had been a general election in May and June of 1866,Journal of the House of Assembly of the Province of New Brunswick, June 21, 1866, p. 77. so there was no need for an immediate election in that province.

The 1867 federal election was spread over several weeks, as had been the practice in the Province of Canada, rather than being held on a single day. The federal election period ran from August 7 to September 20, 1867.Eric Janse and Jeffrey LeBlanc (eds.), House of Commons Procedure and Practice 4th ed. (House of Commons: 2025), Appendix 12: General Election Results Since 1867. Quebec and Ontario therefore held their first elections during the months of August and September.Assemblée Nationale du Québec — Les élections générales.Journals of the Legislative Assembly of Ontario, 1st Parl., 1sr sess. (1867), vol.1, pp. v to viii: "Return of the Names of the Members chosne to serve in the Legislativ Assembly". The Nova Scotia election was held on a single day, September 18, 1867.

Related provisions Section 69 of the Act created the Legislature of Ontario.

Section 71 of the Act created the Legislature of Quebec.

Section 81 of the Act required the Legislatures of Ontario and Quebec to be summoned within six months of the date of the union, which occurred on July 1, 1867.

Section 88 of the Act continued the existing Legislature of Nova Scotia.

References