Section 90 of the Constitution Act, 1867 () is a provision of the Constitution of Canada relating to provincial appropriation and taxation bills, the recommendation for money votes in provincial legislative assemblies, and the federal government's power of disallowance and reservation with respect to provincial laws.

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 90

Section 90 reads:

Section 90 is found in Part V of the Constitution Act, 1867, dealing with provincial constitutions. It has not been amended since the Act was enacted in 1867.

Legislative history

The Quebec Resolutions dealt with the issues of appropriation and taxation bills, royal assent, reservation and disallowance in a series of separate provisions, applicable to both the federal and provincial governments:

resolution 48 provided that taxation bills had to originate in either the House of Commons or the House of Assembly;Quebec Resolutions, resolution 48, 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.

resolution 49 provided that the House of Commons and the House of Assembly could not pass an appropriation or tax bill unless it had been recommended by the governor general or the lieutenant governor;Quebec Resolutions, resolution 49, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 34, p. 162.

resolution 50 provided that federal bills could be reserved by the governor general for the monarch's consideration, and provincial bills could be reserved by the lieutenant governor for the governor general's consideration;Quebec Resolutions, resolution 50, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 34, p. 162.

resolution 51 provided that federal bills could be disallowed by the monarch within two years of passage, and provincial bills could be disallowed by the governor general within one year of passage.Quebec Resolutions, resolution 51, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 34, p. 162.

The London resolutions took the same approach.London Resolutions, resolutions 47 to 50, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 74, p. 225.

However, the rough draft of the bill prepared by the four provincial attorneys general after the main session of the London Conference took a somewhat different approach. The provisions respecting taxation and appropriation bills continued to apply equally to the federal government and to the provincial governments,"Rough Draft of the British North America Bill" (undated), clauses 48 and 49, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 78, p. 236. but there were separate provisions respecting royal assent, reservation, and disallowance. The procedures for royal assent, reservation, and disallowance for federal bills were set out in considerable detail in three separate clauses,"Rough Draft of the British North America Bill" (undated), clauses 31, 32, and 33, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 78, pp. 236–237. while the equivalent provincial provisions were set out in one clause."Rough Draft of the British North America Bill" (undated), clause 34, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 78, p. 237.

The approach to the issue changed again in the next draft. All of the provisions were changed to relate only to the federal Parliament, with a note indicating that the delegates were to provide a draft relating to the provinces."Initial Draft of the British North America Bill" (January 23, 1867), clauses 28 to 31, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 79, pp. 254–255; see note, p. 262. That came in the fourth draft, where there were entirely separate provisions governing taxation and appropriation bills, royal assent, reservation and disallowance for the provinces."Fourth Draft of the British North America Bill" (undated), clauses 116 to 122, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 85, pp. 300. The approach changed yet again in the final draft bill, where there was a single short clause which instead applied all of the federal provisions to the provinces."Final Draft of the British North America Bill" (February 9, 1867), clause 93, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 86, p. 322. At some point between that draft and the introduction of the bill in Parliament, section 90 received its current wording.

Purpose and interpretation

Prior to Confederation, there were well-established parliamentary restrictions on appropriation and taxation bills. In addition, the British government had powers to regulate colonial legislation, such as royal assent, disallowance and reservation. The delegates to the Quebec Conference and the London Conference were in general agreement that those statutory provisions and prerogative powers should continue to exist, applicable to both the federal and the provincial governments.

Application of sections relating to federal Parliament

Section 90 is in Part V of the Act, which deals with the powers of the provincial legislatures. Section 90 picks up several provisions from Part IV of the Act, dealing with the federal Parliament, and applies them to the provincial legislatures, rather than reproducing them in detail. As a result, the provisions relating to federal taxation and appropriation bills (section 53 of the Act), the recommendation for money votes (section 54), royal assent and reservation of bills (section 55 and section 57), and the disallowance of acts (section 56), all apply to provincial legislatures, with appropriate changes to terminology.

Appropriation and tax bills

Section 53 of the Act provides that all federal bills to appropriate public money, or to impose taxes, shall originate in the federal House of Commons.Constitution Act, 1867, s. 53. This requirement has its origins in English constitutional history, when one of the major issues of the 17th century was control over public finances. The result in England, carried forward into the United Kingdom, was that all revenue bills relating to taxation and appropriation were required to originate in the elected House of Commons, not in the hereditary House of Lords. Section 53 of the Act applied that requirement to the Parliament of Canada, requiring all revenue bills to originate in the Canadian House of Commons.W.H. McConnell, Commentary on the British North America Act, (Toronto: MacMillan of Canada, 1977), pp. 131–133.

Section 90 applied the requirement of financial control by the elected chamber to the provinces. At Confederation, the provinces of New Brunswick,Constitution Act, 1867, s. 88. Nova Scotia, and QuebecConstitution Act, 1867, s. 71. all had bicameral legislatures, with appointed upper houses, called legislative councils, and elected lower houses, called legislative assemblies. Only Ontario had a unicameral legislature, consisting of the elected legislative assembly.Constitution Act, 1867, s. 69. The effect of section 90 was that appropriation and taxation bills had to be introduced in the elected legislative assemblies of the provinces, by analogy to section 53's requirement that such bills be introduced in the federal House of Commons.

Over time, the provinces with legislative councils abolished them. Quebec was the last province to abolish its legislative council, in 1968.Government of Quebec: Revolution tranquille: L’Assemblée législative devient l’Assemblée nationale, 31 décembre 1968. With the abolition of the provincial legislative councils, the question was whether this part of section 90 had any further effect, since all the legislative assemblies were now unicameral. At least one constitutional scholar, W.H. McConnell, argued that this part of section 90 was spent.

This issue was raised in a case in the Supreme Court of Canada, Re Eurig Estate. Eurig Estate (Re), 2 SCR 565. The majority of the Court rejected the argument that section 53 no longer had any application to the provinces. They held that section 53 set out the principle of "no taxation without representation", and meant that all provincial taxes had to be clearly authorised by the legislative assembly of the province. The tax in question, a probate fee, had not been properly authorised by the legislative assembly, and therefore was unconstitutional. The Supreme Court gave further guidance on the interpretation of section 53, and its application to the provinces via section 90, in a later case, Ontario English Catholic Teachers’ Association v. Ontario (Attorney General). Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15, 1 SCR 470.

Recommendation of money votes

Section 54 of the Act sets out a procedural requirement for the consideration of bills concerning taxes or appropriation of public funds, commonly called "money bills". Section 54 provides that any bills concerning taxes or appropriations must be accompanied by a recommendation from the Governor General. Under the principles of responsible government, that means that the Governor General makes the recommendation on the advice of the federal Cabinet.Marc Bosc and André Gagnon (eds.), House of Commons Procedure and Practice (3rd ed., 2017), chap. 18: Financial Procedures.

Section 90 applies section 54 to the provincial legislative assemblies, with the change that the recommendation is made by the lieutenant governor, on the advice of the provincial Cabinet.