Section 55 of the Constitution Act, 1867

The Constitution Act, 1867 is part of the Constitution of Canada and thus part of the "supreme law of Canada". 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. Those conferences were followed by consultations with the British government in 1867. The act was then enacted by the British Parliament under the name the British North America Act, 1867. In 1982 the act was brought under full Canadian control through the Patriation of the Constitution, and was renamed the Constitution Act, 1867. == Text of section 55 ==

Section 55 reads: Section 55 is found in Part IV of the Constitution Act, 1867, dealing with the legislative power of the federal Parliament. It has not been amended since the Act was enacted in 1867. == Legislative history ==

Section 55 traces its origins back to section 37 of the Union Act, 1840, the constituent statute of the Province of Canada, which dealt with this issue: The delegates to the Quebec Conference and the London Conference agreed that the monarch would continue to have the power to consider bills reserved by the governor. The Quebec Resolutions provided that bills could be reserved "in the usual manner" for assent by the queen. The London Resolutions used the same phrase. After the London Conference approved the London Resolutions, it appointed a committee of the four provincial attorneys general to prepare the first draft of the proposed bill. This rough draft used the language of section XXXVII of the Union Act, 1840 as the basis for the reservation power. Minor stylistic changes were made in subsequent drafts. The wording of the clause was settled in the final draft of the bill. ==Purpose and interpretation==

Historical origins During the colonial period, the local legislatures were based on the model of the British Parliament. Royal assent to a bill was required for each bill passed by the colonial legislatures. The colonial governors had the power to grant or withhold royal assent on behalf of the monarch. If a governor granted royal assent to a bill passed by a colonial legislature, it became law. If the governor refused royal assent, the bill died. In addition to granting or withholding royal assent, the colonial governors had a third option: they could reserve a bill for consideration by the monarch, in effect, the British government, which could consider whether the bill was consistent with British colonial policy. The British government could advise the monarch to grant or refuse royal assent to a reserved bill. When responsible government was established in the British North American provinces (starting with Nova Scotia in 1848), the governors effectively lost the power to deny royal assent. Under the principles of responsible government, the governors would only exercise their powers on the advice of the elected government. In theory they retained the power to deny royal assent, but by constitutional convention, if a bill was passed by the houses of a legislature, the governor normally granted royal assent, since the bill expressed the wishes of the elected representatives. This principle was established in the Province of Canada in 1849, when Governor General Lord Elgin granted royal assent to the controversial Rebellion Losses Bill. The bill was passed by both houses of the Parliament of the Province of Canada, as a measure proposed by the government of Louis-Hippolyte Lafontaine (co-premier from Canada East) and Robert Baldwin (co-premier from Canada West). The bill was to compensate residents of Canada East (now Quebec) who had suffered property losses during the Lower Canada Rebellion of 1837–1838. The Tory opposition members of the Parliament strongly opposed the measure, arguing that it compensated disloyal French-Canadians, even though a similar bill had been passed a few years earlier to compensate residents of Canada West (now Ontario) who had suffered property losses during the similar Upper Canada Rebellion. The Tory opposition members called on Lord Elgin to deny royal assent. With this change in the role of the Governor General, the provision for reservation of a bill for the monarch's consideration ceased to have any political justification. Based on the Balfour Declaration, three years later the British and Dominion governments agreed that the British government would no longer instruct the governors general to reserve bills. Since the Governor General of Canada now takes advice solely from the federal Cabinet, and grants royal assent on the advice of the federal Cabinet, there is no likelihood that the federal Cabinet would advise the Governor General to reserve royal assent to a bill passed by both houses of Parliament. The reservation power with respect to federal bills has thus been nullified by constitutional convention. Although the power of reservation of federal bills is still mentioned in sections 55 and 57, it is now anachronistic. == Difference from disallowance of acts ==

The power to reserve a bill under section 55 is different from the power of disallowance under section 56 of the Act. Under the reservation power in section 55, the Governor General would neither grant nor deny royal assent, and the bill would not become law. The Governor General would instead forward the bill to London for consideration by the British government, and the monarch could grant or withhold royal assent under section 57 of the Act, on the advice of the British government. Unless the monarch granted royal assent, the bill never had force of law. The disallowance power in section 56 applied to acts to which the Governor General had granted royal assent. Once royal assent is given, a bill becomes an act of Parliament and has force of law. The Governor General was required to forward all acts to London, and the British government then had up to two years to decide whether to disallow an act. If the monarch disallowed the act on the advice of the British government, it would cease to have force of law. == Application to the provinces ==

Section 55 only refers to the reservation power of the governor general with respect to federal bills. However, it applies indirectly to the provinces, by means of section 90 of the act, which adapts the reservation power to provincial bills. == Proposals for repeal ==

With the movement toward Patriation in the 1970s onwards, there have been proposals to abolish the reservation power by removing it from section 55. The Victoria Charter, 1971, was a proposal for patriation which included the abolition of the reservation power, but it was not enacted. The final Patriation package, set out in the Constitution Act, 1982, did not include the abolition of the reservation power and did not repeal section 55. but the Accord was defeated in a national referendum. ==Related provisions of the Constitution Act, 1867==

Section 17 of the Act provides that the federal Parliament is composed of the monarch, the Senate and the House of Commons. Section 56 of the Act sets out the power of the British government to disallow laws passed by the Parliament of Canada. Section 57 of the Act sets out the power of the British monarch-in-council to grant royal assent to federal bills which the Governor General has reserved. Section 90 of the Act applies the powers set out in section 55, section 56 and section 57 to the provincial governments, with the necessary adjustments in terminology. == Notes ==