Preamble to the Constitution Act, 1867

The Constitution Act, 1867 is part of the Constitution of Canada and thus part of the "supreme law of Canada".[1] It was the product of extensive negotiations between the provinces of British North America in the 1860s.[2][3] 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. Originally enacted by the British Parliament under the name the British North America Act, 1867,[4] in 1982 the Act was brought under full Canadian control through the Patriation of the Constitution, and was re-named the Constitution Act, 1867.[5] Since Patriation the Act can only be amended in Canada, under the amending formula set out in the Constitution Act, 1982.[6]

The Preamble reads:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:

And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire:

And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared:

And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America:[7]

The Preamble has not been amended since it was enacted in 1867.

The Preamble has had a significant impact on constitutional jurisprudence concerning the nature of Canadian Confederation and the independence of the Canadian courts.

Although significant cases had been decided on the general nature of Confederation since the 1930s, it was not until 1997 that the Supreme Court of Canada endeavoured to explain and consolidate its jurisprudence that derives from the Preamble. Lamer C.J. summarized it thus:[8]

• preambles can be used to identify the purpose of a statute, and also as an aid to construing ambiguous statutory language
• the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme
• it speaks of the desire of the founding provinces “to be federally united into One Dominion”, and thus, addresses the structure of the division of powers
• by its reference to “a Constitution similar in Principle to that of the United Kingdom”, the preamble indicates that the legal and institutional structure of constitutional democracy in Canada should be similar to that of the legal regime out of which the Canadian Constitution emerged
• it points to the nature of the legal order that envelops and sustains Canadian society. In Re Manitoba Language Rights that is described as “an actual order of positive laws”, which is embraced by the notion of the rule of law
• one example where the Court has inferred a fundamental constitutional rule which is not found in express terms is the doctrine of full faith and credit, where the courts of one province are under a constitutional obligation to recognize the decisions of the courts of another province (as noted in Hunt v. T&N plc)
• another example where the Court has inferred a basic rule of Canadian constitutional law despite the silence of the constitutional text is the doctrine of paramountcy
• it also provides for the constitutionalization of legislative privileges for Parliament and the provincial legislatures, to ensure that they can perform their functions free from interference by the Crown and the courts
• there is interdependence between democratic governance and freedom of political speech, and only Parliament can legislate any limitation of political expression
• the judicial independence of the courts is guaranteed

• Re Manitoba Language Rights, [1985] 1 SCR 721, 1985 CanLII 33 (SCC) Full text of Supreme Court of Canada decision at LexUM and CanLII

• Corbett, S.M. (1998). "Reading the Preamble to the British North America Act, 1867" (PDF). Constitutional Forum. Centre for Constitutional Studies, University of Alberta. 9 (2): 42–47. Retrieved 2012-10-11.