Section 8 of the Constitution Act, 1867

Section 8 of the Constitution Act, 1867 (French: article 8 de la Loi constitutionnelle de 1867) is a provision of the Constitution of Canada requiring a census every ten years.

Royal Proclamation which brought the Act into force on July 1, 1867

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

Main article: Constitution Act, 1867

The Constitution Act, 1867 is part of the Constitution of Canada and thus part of the supreme law of Canada.^[1][2] 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.^[3][4] Those conferences were followed by consultations with the British government in 1867.^[3][5] The Act was then enacted in 1867 by the British Parliament under the name the British North America Act, 1867.^[6][7] In 1982 the Act was brought under full Canadian control through the Patriation of the Constitution, and was renamed the Constitution Act, 1867.^[2][6] Since Patriation the Act can only be amended in Canada, under the amending formula set out in the Constitution Act, 1982.^[8][9][10]

Text of section 8

Section 8 reads:

Decennial Census
8 In the general Census of the Population of Canada which is hereby required to be taken in the Year One thousand eight hundred and seventy-one, and in every Tenth Year, thereafter, the respective Populations of the Four Provinces shall be distinguished.^[11]

Section 8 is found in Part II of the Constitution Act, 1867, dealing with the union of the provinces.

Legislative history

Section 8 is based in part on the provisions of the Quebec Resolutions relating to the census. The requirement for a census every ten years is closely tied to the redistribution of seats in the House of Commons. The Quebec Resolutions provided that there should be a census every ten years, starting in 1871, that no redistribution of seats could occur until after the 1871 census, and that there should be a redistribution of seats after every decennial census.^[12] The London Resolutions were to similar effect.^[13] The census requirement for the purposes of redistribution was in the first rough draft of the bill, varied in the initial draft, and took final form in the version introduced in the British Parliament.^[14]

Section 8 has not been amended since the Act was enacted in 1867.^[11]

Purpose and interpretation

George Brown, advocate for representation by population

At Confederation, the population imbalance between Canada East (now Quebec) and Canada West (now Ontario) was one of the major political issues which contributed to the push for Confederation. Canada East and Canada West had equal representation in the Parliament of the Province of Canada, but Canada West had substantially more people. George Brown, one of the leading Reformers in Canada West, campaigned for several years on "rep by pop", namely that the representation of each section in Parliament should be directly tied to each section's population. That principle was recognised in the Quebec Resolutions, crafted by the Fathers of Confederation at the Quebec Conference in 1864. They agreed that representation in the lower house of the new Parliament would be based on each province's share in the national population.^{[12][15][16][17]}

Section 8 of the Act implemented this principle by requiring a national census every ten years, with the total population broken down by province. That way, the seats in the House of Commons could be allocated to each province based on the province's share of the national population.^[12]

Related provisions

Section 51 of the Act requires that there be a redistribution of seats in the House of Commons every ten years, after the decennial census.

Section 52 of the Act provides that the House of Commons can be increased in size, provided the increase does not affect the proportionate representation of the provinces.

References

1. Peter Hogg and Wade Wright, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters (looseleaf; current to 2022), para. 1:4.
2. Constitution Act, 1982, s. 52, s. 53, and Schedule, item 1.
3. Donald Creighton, The Road to Confederation (Toronto: Macmillan Publishing, 1964; revised ed., Oxford, Oxford University Press, 2012.) online
4. Christopher Moore, 1867 — How the Fathers Made a Deal (Toronto: McClelland & Stewart, 1997).
5. 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.
6. Hogg and Wright, Constitutional Law of Canada, para. 1:2.
7. British North America Act, 1867, 30 & 31 Vict. (UK), c. 3.]
8. Hogg and Wright, Constitutional Law of Canada, para. 4:1.
9. Constitution Act, 1982, Part V.
10. Canada Act 1982 (UK) 1982, c. 11, s. 2.
11. Constitution Act, 1867, s. 8.
12. Quebec Resolutions, resolutions 17, 18 and 19.
13. London Resolutions, resolutions 18, 19, and 20.
14. G.P. Browne (ed.) Documents on the Confederation of British North America (Montreal and Kingston: McGill-Queen's University Press, 2009; reprint of the 1969 edition, with introduction by Janet Ajzenstat): "Rough Draft of the British North America Bill" (undated), clause 19 (Document 78, p. 234); "Initial Draft of the British North America Act" (January 23, 1867), clause 25 (Document 79, p. 253); "Final Draft of the British North America Act" (February 9, 1867), clause 55 (Document 86, p. 314).
15. J.M.S. Careless, Brown of the Globe — The Voice of Upper Canada (Toronto: Macmillan Company of Canada Ltd., 1959), pp. 165–169.
16. Moore, 1867 — How the Fathers Made a Deal, pp. 14–17.
17. Donald Creighton, The Road to Confederation, pp. 45, 63, 117, 154–157, 161. online