Section 71 of the Constitution Act, 1867 () is a provision of the Constitution of Canada creating the Legislature of the province of Quebec, which did not exist prior to 1867. The Constitution Act, 1867 created Quebec, including the institutions of the new provincial government, such as the Legislature.
The Legislature was originally bicameral, consisting of the Lieutenant Governor of Quebec, the appointed Legislative Council, and the elected Legislative Assembly. The Legislative Council was abolished in 1969 and the Legislative Assembly was renamed the National Assembly of Québec. In 1982, the Legislature renamed itself the Parliament of Québec. Quebec operates on the Westminster parliamentary system of responsible government, with the government drawn from, and responsible to, the National Assembly.
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 71
Section 71 reads:
Section 71 is found in Part V of the Constitution Act, 1867, dealing with provincial constitutions. It has been amended twice by the Legislature of Quebec. In 1969, the Legislature abolished the Legislative Council and renamed the Legislative Assembly as the National Assembly of Québec. In 1982, the Legislature renamed itself the Parliament of Québec. Those substantive amendments did not formally change the wording of s. 71.
Legislative history
At the Quebec Conference, the Quebec Resolutions provided that the existing Province of Canada would be divided into two new provinces, Quebec and Ontario. The conference delegates left the constitutional structure of the two new provinces to the government of the Province of Canada to determine.Quebec Resolutions, resolution 41, 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. 160.
In July 1866, the Parliament of the Province of Canada considered an additional set of resolutions, to set out the framework for the constitutions of the two new provinces.Creighton, Road to Confederation, pp. 397–399; online version.P.B. Waite, The Life and Times of Confederation (University of Toronto Press, 1962; republished, Robin Blass Studio, 2001), pp. 307–310. The additional resolutions were introduced in the Legislative Assembly on July 13, 1866, by the joint premiers, George-Étienne Cartier and John A. Macdonald. The fourth resolution provided that Lower Canada (the old name for what would become Quebec), would have a legislature composed of two chambers, a legislative council and a legislative assembly.Journals of the Legislative Assembly of the Province of Canada, 8th Parliament, 5th session (July 13, 1866), p. 141.
At the London Conference in December 1866, the delegates adopted the same approach as in the Quebec Resolutions: the local governments would be as determined by the Province of Canada.London Resolutions, resolution 40, in Browne and Ajzenstat, Documents, document 74, p. 223.
The first rough draft of the British North America bill was then prepared by the four provincial attorneys general present at the London Conference.Creighton, Road to Confederation, p. 418. That draft simply provided that the provincial governments would be constituted by the provincial legislatures, "subject to the provisions of this act"."Rough Draft of the British North America Bill" (undated), clause 41; Browne and Ajzenstat, Documents, document 78, p. 240.
The initial draft prepared by the British drafter similarly did not deal with the details of the provincial constitutions. Instead, in referring to the provincial constitutions, there was a note to the draft which stated: "It is understood that Draft Clauses on these Subjects are being prepared by the Delegates of the several Colonies, which when completed can be considered in Consultation with them.""Initial Draft of the British North America Bill", January 23, 1867; Browne and Ajzenstat, Documents, document 79, p. 262.
It was not until the third draft that provision was made for the legislature of Quebec, composed of two chambers, although the name had not yet been determined."Third Draft of the British North America Bill" (February 2, 1867), clause 75; Browne and Ajzenstat, Documents, document 84, p. 276. The provision took final form in the fourth draft: the Legislature would consist of the lieutenant governor and two chambers, called the Legislative Council and the Legislative Assembly."Fourth Draft of the British North America Bill" (undated), clause 75, in Browne and Ajzenstat, Documents, document 85, p. 290.
Purpose and interpretation
The province of Quebec did not exist prior to 1867. In 1841, the British government had merged Lower Canada and Upper Canada to form the Province of Canada.J.M.S. Careless, The Union of the Canadas — The Growth of Canadian Institutions, 1841–1857 (McClelland and Stewart, 1967), pp. 1–5 Twenty years later, in the negotiations leading to Confederation, the Canadians agreed from the start that the Province of Canada would be split into two separate provinces in the new federation.Creighton, The Road to Confederation, pp. 39–69; online version.W.L. Morton, The Critical Years: The Union of British North America 1857–1873 (McClelland & Stewart, 1964), pp. 146–147. Each of the new provinces would need a completely new constitution, including a legislature, because the old Parliament of the Province of Canada would cease to exist.W.H. McConnell, Commentary on the British North America Act (MacMillan of Canada, 1977), pp. 119-120.
The delegates at the Quebec Conference did not put a great deal of work into the constitutions of the provinces. Some of the delegates viewed the provinces as simply large municipalities, who would have much less power than the previous colonial provinces, while others thought they were continuations of the provinces. Ultimately, the delegates fell back on the well-known structure of the pre-Confederation governments, based on the fundamental principle of responsible government.Creighton, Road to Confederation, pp. 163–164; online version.
In the summer of 1866, the Legislative Assembly of the Province of Canada produced a series of resolutions to set out the constitutions of the two new provinces, Ontario and Quebec. There was a significant difference between the two: Quebec would have a bicameral legislature, while Ontario would have a unicameral legislature. Cartier, co-premier from Canada East, insisted on a bicameral legislature as being within the legislative traditions of British North America. A conservative Bleu, he also considered that an appointed upper house was closely linked to the principles of responsible government and monarchical institutions. Some Bleus believed that a bicameral legislature would provide greater protection for the province from the centralising tendencies of the federal government. There was also some suggestion that an appointed upper house could help protect the interests of the anglophone minority.P.B. Waite, The Life and Times of Confederation (University of Toronto Press, 1962; republished, Robin Blass Studio, 2001), pp. 307–310.
Accordingly, section 71 of the Act created the Legislature of Quebec as a bicameral legislature, consisting of the elected Legislative Assembly, the appointed Legislative Council, and the appointed Lieutenant Governor of Quebec, the representative of the Crown.McConnell, Commentary, pp. 124-128.
The Legislative Assembly originally had 65 seats, the same number of seats Canada East had held in the Legislative Assembly of the Province of Canada, and which was also the same as Quebec's representation in the new federal House of Commons. The Legislative Assembly also used the same electoral map as had been used in the Province of Canada Legislative Assembly and would be used initially in the House of Commons.Constitution Act, 1867, s. 40, s. 80.
The Legislative Council had 24 seats, the same number which Canada East had held in the Legislative Council of the Province of Canada, and the same number which Quebec would have in the new Senate of Canada. The members of the Legislative Council of Quebec and the senators from Quebec were appointed to the same map of seats as had been used for the Legislative Council of the Province of Canada.Constitution Act, 1867, s. 72. The members of the new Legislative Council were appointed for life by the Lieutenant Governor of Quebec, acting on the advice of the provincial government.
The two houses had near-equal legislative authority. The only constitutional difference was that money bills relating to provincial finances had to originate in the Legislative Assembly. However, the Legislative Council had the power to reject money bills, could initiate any other type of legislation, and could amend or reject bills passed by the Legislative Assembly.McConnell, Commentary, pp. 125-128.
Subsequent developments Abolition of the Legislative Council
Although the Legislative Council had broad legislative powers, it rarely initiated legislation. It did, on occasion, obstruct passage of bills passed by the Legislative Assembly.
In the 1960s, when Premier Jean Lesage of the Quebec Liberal Party took office, the Union Nationale had a majority in the Legislative Council. Lesage warned the legislative councillors that if they obstructed passage of the Liberals' plan to nationalise the electrical system, he would consider legislation to abolish the Legislative Council. The legislative councillors duly passed the nationalisation measure.