Section 16 of the Constitution Act, 1867 () is a provision of the Constitution of Canada, making Ottawa the seat of government of Canada.

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. (Toronto: Thomson Reuters (looseleaf; current to 2022), 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 (Toronto: Macmillan Publishing, 1964; revised ed., Oxford, Oxford University Press, 2012) online.Christopher Moore, 1867 — How the Fathers Made a Deal (Toronto: 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", Canadian Historical Review, Vol. 99, No. 3 (2018), pp. 349–393. The Act was then enacted in 1867 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. (UK), c. 3.] 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 (UK) 1982, c. 11, s. 2.

Text of section 16

Section 16 reads:

Section 16 is found in Part III of the Constitution Act, 1867, dealing with the executive power of the federal government.

Section 16 has not been amended since the Act was enacted in 1867.

Legislative history

At the Quebec Conference, one issue which needed to be addressed for the new country was the location of the seat of government. Both the Quebec Resolutions and the London Resolutions provided that the seat of government should be Ottawa, but stated that the designation of the seat of government was "subject to the Royal Prerogative".Quebec Resolutions, 1864, Resolution 52.London Resolutions, 1866, Resolution 51.

During the drafting of the bill, this provision first appeared in the fourth draft, which continued to refer to the royal prerogative. The section took its current wording in the final draft of the bill, which gave the Queen the statutory power to direct a different location, rather than citing the royal prerogative. G.P. Browne (ed.), Documents on the Confederation of British North America (Montreal & Kingston: McGill-Queen's University Press, 2009; reprint of 1969 edition, with introduction by Janet Ajzenstat), "Fourth Draft of the British North America Bill" (undated), clause 5 (Document 85, p. 282); "Final Draft of the British North America Bill" (February 9, 1867), clause 16 (Document 86, p. 305).

Purpose and interpretation

Previous dispute about the seat of government

The location of the seat of government had been a major political issue in the Province of Canada, resulting in an itinerant parliament over the course of twenty-five years, a referral of the issue to Queen Victoria, and the fall of the Canadian government in 1858.Wilfrid Eggleston, The Queen's Choice: A Story of Canada's Capital (Ottawa: Queen's Printer, 1961), pp. 98–110.

From 1841 to 1866, the seat of government of the Province of Canada had been in five different cities, and had moved six times. Its original location was Kingston, in Canada West (now Ontario), from 1841 to 1843. It then moved to Montreal, Canada East (now Quebec), from 1843 to 1849; Toronto (Canada West) (1850 to 1851); Quebec City (1852 to 1854); Toronto again (1855 to 1859); Quebec City again (1860 to 1865); and finally Ottawa, Canada West (1866)."Ottawa Becomes the Capital" (Ottawa: Ottawa Archives, 2007), p. 3. Each of these relocations had triggered significant political debates, as there were strong regional feelings concerning the location of the seat of government. It is estimated that there were at least 200 votes in Parliament on the issue.Richard Gwynn, John A.: The Man Who Made Us (Vintage Canada, 2008), pp. 174–17767.

In 1857, the two co-premiers of the Province of Canada, John A. Macdonald and George-Étienne Cartier, proposed that Queen Victoria should be asked to decide the seat of government. Their own Cabinet was divided on the issue, as Macdonald admitted in the Legislative Assembly, and the regional loyalties were divisive.W.L. Morton, The Critical Years: The Union of British North America 1857–1873 (Toronto: McClelland & Stewart, 1964), pp. 13–14.Eggleston, The Queen's Choice, pp. 100–101.

The Legislative Assembly adopted that suggestion,Journals of the Legislative Assembly of the Province of Canada, 3rd Session, 5th Provincial Parliament of Canada, 1857, pp. 130–133. but it was controversial. The Globe newspaper in Toronto, published by one of the leading Reform party members, George Brown, condemned the decision, saying that it amounted to a vote "to destroy responsible government by sending to Downing Street for Mr Labouchere [the Colonial Secretary] to fix the seat of government."J.M.S. Careless, The Union of the Canadas: The Growth of Canadian Institutions 1841—1857 (Toronto: McClelland and Stewart, 1967), pp. 206–207.

The Governor General of Canada, Sir Edmund Head, prepared a confidential memorandum on the issue for the British government. He recommended Ottawa as a reasonable regional compromise, and also for military reasons, given its distance from the American border, unlike Toronto, Kingston and Montreal.Eggleston, The Queen's Choice, pp. 102–108.James A. Gibson, "Sir Edmund Head's Memorandum on the Choice of Ottawa as the Seat of Government of Canada", Canadian Historical Review (1935), vol. 15, no. 4, pp. 411–417. [Article starts at fifth page of linked document.] The Colonial Secretary, Henry Labouchere, agreed with Head's position and recommended Ottawa to Queen Victoria. The Prince Consort, Prince Albert, also favoured Ottawa. Late in 1857, the Queen made her decision, in favour of Ottawa.

The Queen's choice did not end the dispute, and gave rise to a complicated political episode, the Double Shuffle. In the parliamentary session in 1858, the Macdonald–Cartier government introduced a motion to authorise funding to build parliament buildings at Ottawa. The opposition, led by Antoine-Aimé Dorion and George Brown, opposed the proposal, and the government was defeated in the Assembly on the issue. The Macdonald–Cartier government treated the defeat as a matter of confidence and resigned. Brown and Dorion formed a government, but within a few days, they too were defeated and also had to resign. In the interval, Macdonald and Cartier were able to find additional support in the Assembly and were reappointed by Governor General Head.Eggleston, The Queen's Choice, pp. 108–110.Morton, The Critical Years, p. 17–19.

The next year, 1859, the Cartier–Macdonald government returned to the issue. This time, after a bitter debate lasting two weeks, they were able to carry the motion for the construction of the new parliament buildings in Ottawa, in an exchange for a commitment that the Parliament would sit at Quebec City until the new buildings were ready in Ottawa.Careless, Brown of the Globe, pp. 291–293.Journals of the Legislative Assembly of the Province of Canada, 6th Parl., 2nd sess., vol. 17 (February 2 and 14, 1859), pp. 21, 56–57.

Even that was not the end of the debate. There was one final attempt in the parliamentary session of 1860 to re-open the question, but this time it was defeated by a strong majority in the Assembly.

Construction of Parliament buildings

Construction of the new Parliament buildings began in 1860. Progress was initially fast, but the construction was temporarily halted in 1862 because of large cost overruns. A public inquiry was held, which found various faults with the construction process, but recommended that the original architects and builders be allowed to continue the project. By the time the buildings were completed in 1865, the total cost was $2,591,760, a considerable cost overrun from the original budget of £225,000 (equivalent to $1,094,985 at the statutory conversion rate then in use).James Powell, A History of the Canadian Dollar (Ottawa: Bank of Canada, 2005), p. 23.

The last session of the Parliament of the Province of Canada was held in Ottawa in 1866."Ottawa Becomes the Capital", p. 56.Morton, The Critical Years, p. 197.

Fathers of Confederation choose Ottawa

With that history of political conflict, and the cost of the new Parliament buildings, it was not surprising that the delegates to the Quebec Conference agreed on Ottawa as the seat of government.Eggleston, The Queen's Choice, pp. 98–99. On October 26, 1864, Macdonald proposed to the Conference that Ottawa be the seat of government, "subject to the royal prerogative". The motion passed unanimously. Browne (ed.), Documents on the Confederation of British North America, "Hewitt Bernard's Minutes of the Quebec Conference", October 26, 1864 (Document 31, p. 88).

There are some indications that behind the scenes, the issue was not yet firmly settled. On his return from the London Conference, Macdonald stated publicly that "he had some doubts before going to England as to whether the seat of government for the Dominion would remain in Ottawa, but he was now happy to say there was no question Ottawa was confirmed as the capital of the new Dominion."Eggleston, The Queen's Choice, p. 137.

The Governor General, Lord Monck, was privately grumbling over the choice of Ottawa. In a confidential letter to the Colonial Secretary, he stated that the choice of Ottawa "...seems like an act of insanity." He predicted that within four years the seat of government would move, likely to Quebec City.Eggleston, The Queen's Choice, pp. 99, 137.

Although the monarch retains the power to move the seat of government under section 16, there has not been any such proposal since the enactment of the Constitution Act, 1867.

Provincial jurisdiction over Ottawa

Unlike other federations, Canada does not have a specially designated capital area under the exclusive jurisdiction of the federal government. Municipalities are under provincial jurisdiction, through section 92(8) of the Constitution Act, 1867. The city of Ottawa is in the province of Ontario and is incorporated under Ontario law.Eggleston, The Queen's Choice, pp. 181, 249. The federal government has a considerable presence in the office towers of the city of Gatineau, located across the Ottawa River in Quebec, but Gatineau is incorporated under Quebec law.Eggleston, The Queen's Choice, pp. 181, 211–212.