Constitutional Framework: Reference Points
“The constitution” “unconstitutional”, what is Nova Scotia’s constitutional framework?
People typically think of our Constitution Act of 1982, also known as the Charter (http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-38), or perhaps the BNA Act of 1867 (http://www.justice.gc.ca/…/constit…/lawreg-loireg/p1t11.html), but many do not consider Nova Scotia’s constitution.
“One must appreciate an important historical fact: the constitutional heritage of the country is older than the country itself. This is so because several of the provinces that would eventually become part of the Dominion of Canada had their own colonial constitutions before Confederation – before the enactment of Canada’s federal constitution in the form of the British North America Act (BNA Act), 1867 (now Constitution Act, 1867). The oldest of these pre-confederation constitutions belong to the Maritime provinces: Nova Scotia, New Brunswick and Prince Edward Island. This is no accident. History is the mother of the law, and in the constitutional context, the earliest settled (or conquered) colonies were vested by the British Crown with the earliest constitutions.
The early constitutions of the Maritime provinces are still relevant to the post-Confederation constitutional framework, since they were retained (with only slight modifications) as each province entered confederation. For Nova Scotia and New Brunswick, two of the founding provinces of Canada, the BNA Act, 1867 affirms the continuation of the “Constitution of the executive authority” (s.64) and the “Constitution of the Legislature” (s.88) as they existed at the time of union. The continuation of the constitution for each province is made “subject to the provisions of this Act” (the BNA Act), and until altered under the authority of the Act.”
In regards to Nova Scotia’s constitution more specifically:
“As with most Canadian constitutional developments, Nova Scotia holds the founding position in constitution-making. Nova Scotia is the oldest of the British North American colonies that would eventually form Canada, and has the country’s oldest constitution. The Commission of Edward Cornwallis, by letters patent dated May 6, 1749, called for the appointment of the Governor, and gave him authority to appoint an Executive Council to advise the Governor in colonial matters. As noted by J.E. Read in “The Early Provincial Constitutions”, 1948 Can. Bar Review 621, at p.626, this Council served not only as an executive council, but also in the capacity of a Legislative Council – a second chamber of the Legislature; and the “Principal Court of Judicature”.
On the legislative front, Cornwallis’s Commission granted the Governor the authority, with the advice and consent of the Council, to summon a General Assembly of the “freeholders and planters within your government according to the usage of the rest of Our colonies and Plantations in America.” The Governor, with the advice and consent of the Council and Assembly, was given the full power and authority to “make, constitute and ordain Laws, Statutes and Ordinances for the Publick peace, welfare of our said province and of the people and inhabitants thereof.” Through this latter provision, legislative authority for Nova Scotia was vested in the Governor, the Legislative Council, and General Assembly. However, so that “nothing may be passed or done by our said council or assembly to the prejudice of us (the Crown), our heirs and successors”, the Governor was given a general veto power over any laws so passed.
The terms of the 1749 Commission required the Governor to comply with its provisions, and to govern according to the Instructions therewith, or thereafter given. In the Instructions dated April 29, 1749 the Governor was ordered, among other things, to establish a Principal Court of Judicature, in the form of a General Court consisting of the Governor and his Council; and inferior courts with a right of appeal to the General Court. The 1749 Instructions further provided that the Governor take care to ensure the speedy and impartial administration of justice in the courts, and the preservation of the legal rights and property of subjects of the province through the writ of habeas corpus.
As far as constitutional changes, this article glosses over a few, but there have been many more.
“The colonial constitutions of Nova Scotia, New Brunswick and P.E.I were continued after their admission to the Canadian union, subject to the provisions of the BNA Act, 1867. For all three, this meant a change in the way the executive head of the province was appointed (the Lieutenant- Governor appointed by Governor General, s. 58), and a curtailment of the legislative powers of the provincial assemblies through the division of powers in sections 91 and 92 of the BNA Act, 1867.
Section 92 of the BNA Act allows the legislature of each province to make laws that amend the constitutions of each province. The Maritime legislatures have taken advantage of this provision to abolish the Legislative Council in each of their respective provinces.”
So, Nova Scotia’s constitution is unwritten, and contained in case law and royal directive. It is amended by the BNA Act of 1867 and the Constitution Act of 1982 (The Charter). This, is the constitutional makeup and framework which determine whether a law or government policy is constitutional – or not.
The Constitutions of the Maritime Provinces
Lefroy, A.H.F., A Short Treatise on Canadian Constitutional Law (Toronto: The Carswell Company Ltd., 1918)
Clement, W.H.P, The Law of the Canadian Constitution (Toronto: The Carswell Company Ltd., 1916)
Hogg, Peter W., Constitutional Law of Canada, 2nd ed. (Toronto: The Carswell Company Ltd, 1985)
Read, J.A., “The Early Provincial Constitutions” (1948), 26 Can. Bar Review 621