Canada: Notes - Archontology

Canada: Notes

Part A. Preliminary note on legislation before 1953.

All Statutes and Orders-in-Coucil cited in this account that became effective before 1953 are Acts of the Parliament of the United Kingdom and British Orders-in-Council, respectively, a fact that will not be explicitly recalled. The language of their text is English, and they do not themselves provide a French-language version; the official character of the occasional citations from the French-language versions in what follows is of undocumented origin.

Part B. Definition and extent.

The polity Canada originates in the British North America Act, 1867 - statutorily restyled, retrospectively, the Constitution Act, 1867 - assented to 29 Mar 1867, in the following terms:

3. It shall be lawful for the Queen … to declare by Proclamation that on and after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick shall form and be One Dominion under the name of Canada; and on and after that Day those Provinces shall form and be One Dominion under that Name accordingly.

4. Unless it is otherwise expressed or implied, the Name Canada shall be taken to mean Canada as constituted under this Act.

The Royal Proclamation alluded to in the Act is issued on 22 May 1867, and Canada comes into being on 1 Jul 1867 accordingly. The Province of Canada is replaced, by the cited Act, by the Province of Ontario and the Province of Quebec.

Article 146 of the Constitution Act, 1867, provides for the prospective admission into what is informally styled "the Union" of:

  • Rupert's Land and the North-western Territory, i.e., the lands leased by the Crown to the Hudson's Bay Company ("The Governor and Company of Adventurers of England into Hudson's Bay"); by purchase of the Company's rights;
  • The Colonies or Provinces of Newfoundland, Prince Edward's Island, and British Columbia.

These admissions are effected by Statute and/or Order-in-Council as follows:

  • Rupert's Land and North-Western Territory Order (23 Jun 1870), effective 15 Jul 1870;
  • British Columbia Terms of Union Order (16 May 1871), effective 20 Jul 1871;
  • Prince Edward Island Terms of Union Order (26 Jun 1873), effective 1 Jul 1873;
  • Adjacent Territories Order (31 July 1880);
  • British North America Act, 1949 - retrospectively styled Newfoundland Act - (23 Mar 1949) effective 31 Mar 1949.

Part C. Official languages.

Art. 133 of the Constitution Act, 1867, provides that English and French are the official languages for all purposes relating to the Parliament of Canada, including legislation. This provision is amplified and consolidated by Canadian legislation beginning in 1968, and anchored by the Constitution Act, 1982 = Loi constitutionnelle de 1982.

Part D1. Polity Style: English.

As noted, the Constitution Act, 1867 very specifically dictates the polity style "Canada". Some sources on the making of this Act hesitate in explaining the origin of the phrase "One Dominion under the name of Canada".

It appears that, contrary to the explicit language of the Act, the polity style "Dominion of Canada" immediately acquires official standing. On 17 Dec 1867 both Houses of the Parliament of Canada issued an "Address to Her Majesty the Queen from The Senate and the House of Representatives of the Dominion of Canada" regarding the admission of Rupert's Land; this document appears as Schedule A to the Rupert's Land and North-Western Territory Order, dated 23 Jun 1870, cited previously.

The style "Dominion of Canada" soon co-exists, mostly predominantly, with "Canada", the latter being found only in highly technical contexts, such as "the Parliament of Canada", and the Royal Style and Titles (for which see below). "Dominion of Canada" and "Dominion of New Zealand" (the latter a term of older vintage) appear in lists of "self-governing Dominions" in United Kingdom legislation, prominently the in "Articles of Agreement for a treaty between Great Britain and Ireland", signed 6 Dec 1921 and ratified by Act of the Parliament of the United Kingdom, effective by Royal Proclamation 6 Dec 1922; and most significantly in the Statute of Westminster, 1931, assented to 11 Dec 1931:

1. In this Act the expression 'Dominion' means any of the following Dominions, that is to say, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland.

The official use of "Dominion of Canada" begins to wane after World War II; a symptomatic event is the replacement, in the Letters Patent of 1947 constituting the office of Governor-General, of the term "Dominion of Canada", used in the 1931 version, by the term "Canada". By the time of the patriation of the Constitution in 1982, the style "Dominion of Canada" is defunct, except for some fossil remnants in the names of a few government related institutions. It was never formally abolished, just as it was never formally instituted.

Part D2. Polity Style: French.

The French-language version of the Constitution Act, 1867 (See Part A for the question of the French-language text), Loi constitutionnelle de 1867 (originally Acte de l'Amérique du Nord britannique, 1867) has:

3. Il sera loisible à la Reine ... de déclarer par proclamation qu'à compter du jour y désigné ... les provinces du Canada, de la Nouvelle-Écosse et du Nouveau-Brunswick ne formeront qu'une seule et même Puissance sous le nom de Canada; ...

The constitutionally mandated polity style is "Canada" ("le Canada" in constructed form). While "Dominion of Canada" becomes pervasive in English, the corresponding style, "Puissance du Canada", is indeed the official equivalent, as documented, e.g., in Royal proclamations published in The Canada Gazette; this style, however, does not catch on in general use; in fact, even the anglicism "Dominion" is in occasional French-language use. French-language contexts prefer to use "Confédération" as noun and "fédéral" as adjective for English-language "Dominion". The source cited above argues that the awkward co-existence of "Dominion of Canada" in English with French-language unsanctioned circumlocutions contributes to the ultimate return to "Canada" as the preferred, and eventually almost sole, polity style.

Part E. Sovereignty and Patriation.

The Constitution Act, 1867, in creating Canada does not purport to grant the new polity sovereign status. While declaring Canada to be "part of the British Empire", it gives the Parliament and the Government standing in international relations with supremacy over the Provinces:

132. The Parliament and Government of Canada shall have all Powers necessary or Proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.

The Supreme Court of Canada reflected this uncertainty when it said in Re: Offshore Mineral Rights of British Columbia that Canada's "sovereignty was acquired in the period between its separate signature of the Treaty of Versailles in 1919 and the Statute of Westminster, 1931..." In that context, Canada increasingly functions as a sovereign entity, e.g., as full member of the League of Nations.

The Statute of Westminster, assented to 11 Dec 1931, makes the "Dominions" legislatively independent of the British Parliament and the appointment of their governors-general independent of the British government, with a very significant reservation regarding Canada. The Parliament of the United Kingdom is not only allowed to legislate for Canada at the request of the Parliament of Canada, as is common to all "Dominions", but remains the sole ultimate source of the Constitution of Canada and its amendments so long as it does not partially or totally renounce this authority.

The process of this renunciation is known as "Patriation" (sc. of the Constitution); it proceeds by stages, and culminates with the passing, by the Parliament of the United Kingdom, of the Canada Act, 1982 = Loi de 1982 sur Le Canada (French-language version is Schedule A to this Act), assented to 29 Mar 1982. This Act enacts the Constitution Act, 1982 = Loi constitutionnelle de 1982 passed by the Parliament of Canada, (contained in Schedule B), and provides:

2. No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.

2. Les lois adoptées par le Parlement du Royaume-Uni après l'entrée en vigueur de la Loi constitutionnelle de 1982 ne font pas partie du droit du Canada.

Part F1. Royal Style and Titles before 1953.

The Royal Style and Titles prescribed by Statute in the United Kingdom are necessarily in use in English-language documents in Canada before 29 May 1953.

It should be noted that in the Letters Patent Constituting the Office of Governor General of Canada, effective 1 Oct 1947, the Style and Titles of the King omit the phrase "Emperor of India"; while the India Independence Act, which authorises this omission, is effective from 15 Aug 1947, the omission is only made effective by Royal Proclamation of 22 Jun 1948.

There is no statutorily prescribed French-language form of the Royal Style and Titles (Désignation et titres royaux) before 29 May 1953. The individual pages showing the English-language Style and Titles of each Sovereign also show such French-language forms as occur in Royal Proclamations. These forms closely follow the English language forms, with occasional variation, specifically with regard to the phrase "British Dominions beyond the Seas." This is usually rendered "possessions britanniques au delà des mers", but in at least one instance "possessions" is replaced by "territoires". An official government page actually uses "dominions" instead.

The proclamation of the accession of Elizabeth II on 6 Feb 1952 adds the phrase "Supreme Liege Lady in and over Canada = Dame lige suprême du Canada" to the recitation of the titles; this addendum has no statutory authority.

Part F2. Royal Style and Titles from 1953.

Giving effect to the "Act respecting the Royal Style and Titles = Loi sur la désignation et les titres royaux", assented to 11 Feb 1953, a Royal Proclamation, dated 28 May 1953 (published 29 May 1953) prescribes the following Royal Style and Titles:

... By the Grace of God of the United Kingdom, Canada and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith ...

... Par la grâce de Dieu, Reine du Royaume-Uni, du Canada et de ses autres royaumes et territoires, Chef du Commonwealth, Défenseur de la Foi

Sources: [1][2]

[1] The Canada Gazette.
[2] "The Constitutional Structure of the Commonwealth", by K. C. Weare (Oxford: Clarendon Press, 1960).