Section 38 of the Constitution Act, 1867 () is a provision of the Constitution of Canada, giving the Governor General of Canada the power to summon the House of Commons, the lower house of the Parliament 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. (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 (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", Canadian Historical Review, Vol. 99, No. 3 (2018), pp. 349–393 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 38

Section 38 reads:

Section 38 is found in Part IV of the Constitution Act, 1867, dealing with the legislative power of the federal Parliament. It has never been amended.

Legislative history

There was no equivalent provision to section 38 in either the Quebec Resolutions of 1864Quebec Resolutions, in G.P. Browne and Janet Ajzenstat (eds.), Documents on the Confederation of British North America (Montreal and Kingston: McGill-Queen's University Press, 2009; reprint of the 1969 edition), document 34, p. 153. or the London Resolutions of 1866.London Resolutions, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 74, p. 217.

The first provision which referred to the power of the Governor General to summon Parliament was in the rough draft of the British North America bill, prepared by the four provincial attorneys general after the London Resolutions had been finalised.Creighton, Road to Confederation, p. 418. The rough draft contained a provision authorising the Governor General to summon the Parliament for the first time, after the proposed act came into force, but no mention of an ongoing power."Rough Draft of the British North America Bill" (undated), clause 22, in Browne and Ajzenstat, Documents on the Confederation of British North America, document 78, p. 235. The next draft had no equivalent provision."Initial Draft of the British North America Bill" (January 23, 1867), in Browne and Ajzenstat (eds.), Documents on the Confederation of British North America, document 79, p. 247.

The third draft provided that the Governor General was to summon the first Parliament within a set time after the act came into force, but added that the Governor General had the power "thereafter from time to time ... to summon and call together a House of Commons in and for Canada.""Third Draft of the British North America Bill" (February 2, 1867), clause 28, in Browne and Ajzenstat (eds.), Documents on the Confederation of British North America, document 84, p. 269. Similar wording was used in the fourth draft."Fourth Draft of the British North America Bill" (undated), clause 38, in Browne and Ajzenstat (eds.), Documents on the Confederation of British North America, document 85, p. 285.

Finally, in the fifth draft, the provision for the first general election was split off from the general power of the Governor General to summon the House of Commons."Final Draft of the British North America Bill" (February 9, 1867), clauses 39, 43, in Browne and Ajzenstat (eds.), Documents on the Confederation of British North America, document 86, pp. 310, 311–312. The general power to summon the House of Commons became section 38 of the Act, while section 19 required that the first Parliament be summoned within six months of the act coming into force.Constitution Act, 1867, section 19.

Purpose and interpretation

Parliament does not sit continuously. The Senate is a continuing body, but the House of Commons is elected periodically in a general election. Following a general election, the newly elected House of Commons is summoned by the Governor General under this section, on the advice of the prime minister.Hogg and Wright, Constitutional Law of Canada, para. 9:6.Marc Bosc and André Gagnon (eds.), House of Commons Procedure and Practice, (3rd ed., 2017), Chapter 8: Opening of a Parliament and a Session — Summoning Parliament. As well, Parliament must meet annually,Canadian Charter of Rights and Freedoms , s. 5. and can be summoned by the Governor General under this section if it has been prorogued. The Governor General again acts on the advice of the prime minister in exercising this power.Bosc and Gagnon (eds.), House of Commons Procedure and Practice, Chapter 8: The Parliamentary Cycle — Recall During a Prorogation.

Each House of Commons lasts for no more than five years,Canadian Charter of Rights and Freedoms, s. 4(1). and can be dissolved by the Governor General prior to the expiry of the five-year term,Constitution Act, 1867, s. 50. again on the advice of the prime minister.Bosc and Gagnon (eds.), House of Commons Procedure and Practice, Chapter 8: The Parliamentary Cycle — Prorogation and Dissolution.

Related provisions of the Constitution Act, 1867

Section 19 of the Act required the Governor General to summon the first Parliament within six months of the date the Act came into force.

Section 50 sets out the five-year term for the House of Commons, and mentions the power of the Governor General to dissolve the House of Commons prior to the end of the five-year term.

Section 82 sets out the power of the Lieutenant Governors of Ontario and Quebec to summon the Legislative Assemblies of those provinces.

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