Section 18 of the Constitution Act, 1867

Section 18 of the Constitution Act, 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

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; revised ed., Oxford University Press, 2012) online 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", 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., 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 18

Section 18 reads:

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.Parliament of Canada Act, 1875, 38 & 39 Vict., c. 38 (UK).

Legislative history Original version: 1867 to 1875

As originally enacted in 1867, section 18 provided:

Resolutions and drafts relating to parliamentary privilege

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

The issue of parliamentary privilege was included in the very first draft of the bill, prepared by the delegates to the London Conference. It continued the proposal that the Legislative Council would have the same privileges as the House of Lords, and the Canadian House of Commons would have the same privileges as the British House of Commons."Rough Draft of the British North America Act" (undated), clauses 16 and 27, in Browne and Ajzenstat (eds.), Documents on the Confederation of British North America, document 78, pp. 233, 236.

The issue of privilege was omitted from the next draft, prepared by the British drafters, with a note that privilege "may be provided for by colonial legislation.""Initial draft of the British North America Bill" (January 23, 1867); Browne and Ajzenstat, Documents on the Confederation of British North America, document 79, p. 262. It reappeared in the third draft, with a proposal that both houses would have the same privileges as the British House of Commons."Third draft of the British North America Bill" (February 2, 1867), clause 53; Browne and Ajzenstat, Documents on the Confederation of British North America, document 84, p. 272.

The fourth draft also provided that both Canadian houses would have the same privileges and powers as the British House of Commons, with the addition that the Canadian powers and privileges would not "... exceed those now held" by the British House of Commons and its members."Fourth Draft of the British North America Act" (undated), clause 121; Browne and Ajzenstat (eds.), Documents on the Confederation of British North America, document 85, p. 300. With some minor modifications in wording, that became the final form of section 18, as passed by the British Parliament in 1867."Final Draft of the British North America Act" (February 9, 1867), clause 18; Browne and Ajzenstat, Documents on the Confederation of British North America, document 86, p. 306.

Current version, 1875 onwards

The original 1867 version was repealed and replaced in 1875 as a result of the Pacific Scandal of 1873, which had resulted in the fall of the Conservative government of Sir John A. Macdonald, and the installation of the Liberal government of Alexander Mackenzie.Pierre Berton, The National Dream: The Great Railway 1871–1881 (Toronto: McClelland and Stewart Limited, 1970), pp. 134–143, 184–186. The events of the Pacific Scandal had shown that the grant of parliamentary privileges in section 18 was limited, and the new Mackenzie government asked the British government to amend section 18 to give broader powers to the Canadian Parliament.W.H. McConnell, Commentary on the British North America Act (Toronto: MacMillan of Canada, 1977), p. 58–59. In response to that request, the British Parliament enacted the Parliament of Canada Act, 1875, which repealed the original version of section 18 and enacted the current version.McConnell, Commentary on the British North America Act, pp. 59–60.

The difference between the two versions was that the original version provided that the federal Parliament could not enact legislation relating to privilege that exceeded the powers of the British House of Commons as of the date of the Constitution Act, 1867 coming into force, namely July 1, 1867. The 1875 version provides that the federal Parliament can enact laws relating to parliamentary privilege, provided the laws do not exceed the powers of the British House of Commons, as of the date the federal laws are enacted.Marc Bosc and André Gagnon, House of Commons Procedure and Practice (3rd ed, 2017), Chapter 3 – Privileges and Immunities – Historical Perspective.

Purpose and interpretation Evolution of section 18 Pre-Confederation

Prior to Confederation, issues arose in the British North American provinces about the parliamentary privileges of the legislative assemblies. In some cases, the assemblies claimed the same privileges as the British Houses of Parliament, while in other cases, they claimed more limited rights, such as only claiming freedom of speech in the assembly.Joseph Maingot, Parliamentary Privilege in Canada (Butterworths: 1982), pp. 2–4, 166–172.

During this period, the scope of the privileges of the assemblies sometimes arose in judicial proceedings, and sometimes required legal opinions from the British law officers of the Crown. The conclusion drawn was that colonial legislatures did not have the same privileges as the British Parliament, which were based on the historical origins and the lex parlamenti of the British Parliament. Instead, colonial legislative bodies had only those privileges which were necessary for the functioning of a legislature, such as freedom of speech in the assembly. The colonial legislative assemblies did not have the more extensive powers of the British Parliament, such as the power to commit an individual for contempt of Parliament.

An additional limitation was that the Crown, acting through the British government, did not have the power to confer broad privileges on a colonial legislature. Only the British Parliament could give those powers to a colonial legislature, by statute. That was the reason for section 18 of the Constitution Act, 1867, to give the Parliament of Canada the same privileges as that of the British Parliament.

Constitutional issue

Six years after Confederation, in 1873, a serious political scandal arose which tested the limits of the privileges of the Parliament of Canada. The Pacific Scandal was triggered by allegations that the Conservative Party, led by Prime Minister John A. Macdonald, had received large donations for the 1872 federal election, from a business group led by Sir Hugh Allan of Montreal. Allan was seeking the federal contract to build the Canadian Pacific Railway, a transcontinental railway to the Pacific coast. When the scandal broke, the opposition Liberals called for a parliamentary inquiry, with the power to compel testimony under oath.Berton, The National Dream: The Great Railway 1871–1881, pp. 90–94. The Parliament of Canada passed a statute, the Oaths Act, to give the committee that power.Berton, The National Dream: The Great Railway 1871–1881, pp. 94–95.Oaths Act, SC 1873, c 1.

Questions were raised almost immediately about the constitutional validity of the act. The original version of section 18 limited the parliamentary privileges of the Canadian House of Commons and the Senate to the privileges possessed by the British House of Commons at the time the Constitution Act, 1867 was passed. However, in 1867, the British House of Commons did not have the power to compel testimony under oath; it only obtained that power by a British statute enacted in 1871.Sir David Natzler KCB et al, Erskine May’s treatise on the law, privileges, proceedings and usage of Parliament (25th edition, 2019), "Administration of oaths by committees", para. 38.37.Parliamentary Witnesses Oaths Act 1871, 34 & 35 Vict., c 83 (UK). The issue was whether the 1873 Oaths Act improperly expanded the parliamentary powers beyond what had been allowed in 1867. Macdonald indicated in the debate on the bill that he shared the concerns whether Parliament had the necessary authority to enact it, but he was prepared to agree to its passage.

Macdonald, in his capacity as Attorney General of Canada, drew the issue to the attention of Governor General Dufferin. Macdonald indicated that he shared the serious concerns being raised about the constitutionality of the act, and asked the Governor General to consider referring the issue to the British government for a legal opinion.Memo from Sir John A. Macdonald to Governor General Dufferin, April 30, 1873; reproduced in Journals of the House of Commons, 2nd Parliament, 2nd session, vol. VII, pp. 8–9. Dufferin also had the benefit of an opinion from Alpheus Todd, a leading Canadian expert on British parliamentary practice. Todd disagreed with Macdonald and concluded that the Oaths Act was constitutional.Memo from Alpheus Todd to Governor General Dufferin, May 3, 1873; reproduced in Journals of the House of Commons, 2nd Parliament, 2nd session, vol. VII, pp. 9–10. Dufferin referred the matter to the Colonial Secretary, the Earl of Kimberley, including the memos from Macdonald and Todd.Dispatch from the Earl of Dufferin to the Earl of Kimberley, May 3, 1873; reproduced in Journals of the House of Commons, 2nd Parliament, 2nd session, vol. VII, pp. 5–8.