Section 55 of the Constitution Act, 1867

Section 55 of the Constitution Act, 1867 () is a provision of the Constitution of Canada relating to the power of the Governor General of Canada to give royal assent to a bill passed by the federal houses of Parliament. It also contains the former power of the governor general to reserve a bill for the consideration of the British government. The provision no longer has any effect, as a result of the growth of Canadian autonomy and constitutional conventions in the 20th century.

The power in section 55 also applies indirectly to the provinces. Section 90 of the act provides that the provision respecting the assent to bills also applies to provincial bills.

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 2024)), 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 55

Section 55 reads:

Section 55 is found in Part IV of the Constitution Act, 1867, dealing with the legislative power of the federal Parliament. It has not been amended since the Act was enacted in 1867. However, the reservation power contained in this section has been negated by constitutional conventions developed in the 20th century, with the growth of Canadian autonomy.Hogg and Wright, Constitutional Law of Canada, paras. 3:1, 9:3 n. 2.

Legislative history

Section 55 traces its origins back to section 37 of the Union Act, 1840, the constituent statute of the Province of Canada, which dealt with this issue:

The delegates to the Quebec Conference and the London Conference agreed that the monarch would continue to have the power to consider bills reserved by the governor. The Quebec Resolutions provided that bills could be reserved "in the usual manner" for assent by the queen.Quebec Resolutions, resolution 50, 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. 162. The London Resolutions used the same phrase.London Resolutions, resolution 49, in Browne and Ajzenstat, Documents, document 74, p. 225.

After the London Conference approved the London Resolutions, it appointed a committee of the four provincial attorneys general to prepare the first draft of the proposed bill.Creighton, Road to Confederation, p. 418. This rough draft used the language of section XXXVII of the Union Act, 1840 as the basis for the reservation power."Rough Draft of the London Conference for the British North America Bill" (undated), clause 31, in Browne and Ajzenstat, Documents, document 78, p. 236. See also Joseph Pope, Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (Carswell, 1895), at p. 129. Minor stylistic changes were made in subsequent drafts."Initial Draft of the British North America Bill" (January 23, 1867), clause 30, in Browne and Ajzenstat, Documents, document 79, p. 236; see also Pope, Confederation, at p. 149. The wording of the clause was settled in the final draft of the bill."Final Draft of the British North America Bill" (February 9, 1867), clause 56, in Browne and Ajzenstat, Documents, document 86, p. 314; see also Pope, Confederation, at p. 224.

Purpose and interpretation

Historical origins

During the colonial period, the local legislatures were based on the model of the British Parliament. Royal assent to a bill was required for each bill passed by the colonial legislatures. The colonial governors had the power to grant or withhold royal assent on behalf of the monarch. If a governor granted royal assent to a bill passed by a colonial legislature, it became law. If the governor refused royal assent, the bill died.W.H. McConnell, Commentary on the British North America Act (MacMillan of Canada, 1977), pp. 107–108.

In addition to granting or withholding royal assent, the colonial governors had a third option: they could reserve a bill for consideration by the monarch, in effect, the British government, which could consider whether the bill was consistent with British colonial policy. The British government could advise the monarch to grant or refuse royal assent to a reserved bill.Hogg and Wright, Constitutional Law of Canada, para. 3:1 n. 5.Report on the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929 (King's Printer (Canada), 1930), paras. 18–23.

When responsible government was established in the British North American provinces (starting with Nova Scotia in 1848), the governors effectively lost the power to deny royal assent. Under the principles of responsible government, the governors would only exercise their powers on the advice of the elected government. In theory they retained the power to deny royal assent, but by constitutional convention, if a bill was passed by the houses of a legislature, the governor normally granted royal assent, since the bill expressed the wishes of the elected representatives.Hogg and Wright, Constitutional Law of Canada, paras. 9:2, 9:3.

This principle was established in the Province of Canada in 1849, when Governor General Lord Elgin granted royal assent to the controversial Rebellion Losses Bill. The bill was passed by both houses of the Parliament of the Province of Canada, as a measure proposed by the government of Louis-Hippolyte Lafontaine (co-premier from Canada East) and Robert Baldwin (co-premier from Canada West). The bill was to compensate residents of Canada East (now Quebec) who had suffered property losses during the Lower Canada Rebellion of 1837–1838.J.M.S. Careless, The Union of the Canadas: The Growth of Canadian Institutions 1841—1857 (McClelland and Stewart, 1967), pp. 124–126.John Ralston Saul, Louis-Hippolyte LaFontaine & Robert Baldwin (Penguin, 2010), pp. 173–202.

The Tory opposition members of the Parliament strongly opposed the measure, arguing that it compensated disloyal French-Canadians, even though a similar bill had been passed a few years earlier to compensate residents of Canada West (now Ontario) who had suffered property losses during the similar Upper Canada Rebellion. The Tory opposition members called on Lord Elgin to deny royal assent.

When Lord Elgin instead granted royal assent, on the advice of the LaFontaine-Baldwin government, riots broke out in Montreal, where Parliament met, and the parliament building was burnt by the rioters. Nonetheless, the principle was established that the governors would grant royal assent to bills passed by the legislature. The only exception was if the governor considered the bill should be reserved for consideration by the British government, under the instructions the British government gave to the governor on appointment.

Application to federal acts of Parliament

Section 17 of the Act provides that the monarch is part of the federal Parliament, and section 91 of the Act provides that the monarch is part of the legislative process for federal laws. The monarch's assent is therefore necessary for a bill passed by the House of Commons and the Senate to become law. As set out in section 55, the Governor General carries out the function of granting royal assent, but under the principles of responsible government, the Governor General grants royal assent as a matter of course.

However, when the Constitution Act, 1867 was passed, the Governor General was considered to be an officer of the British government, carrying out British imperial policies. Section 55 continued the power of reservation, giving the Governor General the power to reserve a federal bill for the consideration of the British government. If the Governor General reserved a bill, the monarch then could grant or deny royal assent, under section 57 of the Act, acting on the advice of the British government.

The power to reserve a federal bill was only exercised in the early days of Confederation, between 1867 and 1878. During that time, the governors general reserved twenty-one federal bills for consideration by the British government. Of the twenty-one bills reserved, six were denied royal assent. In 1878, as a result of lobbying by the Canadian government, the British government changed the instructions it gave to the Governor General, removing instructions to reserve certain classes of bills. No federal bills have been reserved since then.

Effect of the Balfour Declaration

As Canada developed its own identity, Canadian autonomy became more and more established, and the role of the Governor General as an officer of the British government diminished. Finally, with the Balfour Declaration of 1926, the British and Dominion governments agreed that the constitutional position had changed. The United Kingdom and the Dominions were now equal in status:

The Conference went on to conclude that the changed status of the Dominions mean that the governors general were no longer to be considered officers of the British government. Instead, the governors general were recognised as fulfilling the role of the monarch in each Dominion, acting under the principles of responsible government, and only taking advice from the Dominion government, not from the British government."Report of Inter-Imperial Relations Committee", Imperial Conference 1926: Summary of Proceedings (King's Printer (Canada), 1926), p. 14.

With this change in the role of the Governor General, the provision for reservation of a bill for the monarch's consideration ceased to have any political justification. Based on the Balfour Declaration, three years later the British and Dominion governments agreed that the British government would no longer instruct the governors general to reserve bills. Since the Governor General of Canada now takes advice solely from the federal Cabinet, and grants royal assent on the advice of the federal Cabinet, there is no likelihood that the federal Cabinet would advise the Governor General to reserve royal assent to a bill passed by both houses of Parliament.