The Evolution of the British North America Act

October 22, 2014

150 years ago this month, October 1864, delegates from a handful of British North American colonies met in Québec City to discuss the creation of a Federal Union. The 72 resolutions that were produced in Québec became the blueprint for the British North America Act, 1867 (now the Constitution Act, 1867). This was no small feat. As George Brown, editor of the Globe and one of the leading delegates put it, there was “no other instance on record of a colony peacefully remodeling its own constitution, such changes having been always the work of the parent state and not of the colonists themselves.”


The Québec Conference was a crucial way station along what historian Donald Creighton called the “road to Confederation.” The destination, Confederation, gets lots of attention. On this anniversary of the Quebec Conference, we want instead to emphasize the journey. The BNA Act, 1867, after all, did not appear fully-formed from John A. Macdonald’s brow but was the product of a lively, lengthy, floating debate in which all sorts of ideas were discussed and rejected, drafts written and re-written, and provisions added and excised. We know about the existence of several dozen drafts of the constitutional blueprints that were produced between 1864 and 1867; there are likely even more (so check your grandmother’s attic).


Where did the wording come from and how did it change? What was added to the text? What was removed? What was re-ordered? How was it edited?


There are good reasons to take the constitutional drafts seriously. For one thing, they can help establish what the Fathers of Confederation intended when they chose some words instead of others. This is important because, traditionally, courts have sought to find the legislator’s intent in order to interpret a statutory provision that wasn’t clear. Although this approach is less prevalent today, courts still try to discover the original meaning in some contexts. The framers’ intent, for example, recently was addressed by the Supreme Court of Canada in Reference re. Senate Reform, 2014.


Taking the drafts seriously is also important because our history is constructed by those who interpret – and re-interpret – the past. Benedict Anderson has famously argued that all countries create stories about themselves that stitch together a single national identity from many and various strands. Telling stories about a country’s “founding” is one of the most popular ways of creating these “imagined communities.” But this raises a whole other set of questions. What do we make, for instance, of the constitutional “out takes” that ended up on the cutting room floor? Do the drafts simply reinforce the official story? Do we discount them entirely? Or do they provide an alternative narrative that deserves to be revived and reconsidered?


You be the judge. Take our quiz – and see how much you know both about the BNA Act and “the road not taken.” Alternatively, you can also take the quiz at:



  1. Which of the following communities are not mentioned in the drafts of the BNA Act, 1867?:

(a) Roman Catholics

(b) Protestants

(c) Quakers

(d) Métis

(e) Moravians


Answer: The answer is (d), the Métis. Catholics and Protestants, of course, were mentioned in the context of denominational schools in Ontario and Québec. What is less well known is that Quakers and Moravians were included in some of the drafts of the BNA Act out of concern they would not be able to undertake the oaths of allegiance that were required for varying office holders. The place of the Métis nation in Canada is neglected in the various draft constitutions; soon after Confederation its status provoked a political crisis.


  1. On which of the following topics did the delegates find common ground during the first three days of the Québec Conference?:

(a) Canada would be a federal state

(b) Canada would have a constitution similar in principle to the U.K.

(c) Canada would be a monarchy

(d) Journalists would be barred from the conference

(e) All of the above


Answer: The delegates were in basic agreement about the major institutional pillars of the new Canada – federalism, the Westminster model of parliamentary government, and the Crown. But they also agreed that they didn’t want journalists in the conference room with them. Prime Minister Brian Mulroney was only following a time-honored Canadian tradition of drafting constitutional provisions behind closed doors when he and provincial leaders met at Meech Lake. The answer is (e).


  1. True or False: Drafts of the BNA Act, 1867 defined the word “person” and included a provision to ensure that use of male pronouns such as “he” or “him” would be interpreted by the courts in a gender neutral manner.


The answer is true. Some of the earlier drafts of the BNA Act included an interpretative section. One draft provides that “Words importing the singular number or the masculine gender only, shall include more persons, parties, or things of the same kind than one, and females as well as males, and the converse.” Another draft provision defined “person,” to “include any body corporate, company or society not corporate.” The issue is significant because in the Persons’ Case, the courts focused on whether the term “persons” in the BNA Act, 1867 included women for the purpose of being appointed to the Senate.


At first glance, you might think that these draft interpretative provisions meant that the Fathers of Confederation were early feminists. Not true. In the 1860s, there was no intention of giving women a meaningful role in political life. Indeed, they couldn’t even vote.




  1. At the Québec Conference, there was discussion as to what powers would be allocated to the federal government. Which of the following was not considered by the delegates for inclusion in the list of matters of exclusive federal responsibility?:

(a) the making of Canadian foreign policy

(b) regulations pertaining to fire and life insurance companies

(c) roads and bridges linking provinces

(d) penitentiaries

(e) lighthouses


The answer is (a). Great Britain retained control over international relations for the fledgling country; this was uncontroversial. There was a discussion as to whether to include the regulation and incorporation of fire and life insurance companies as an exclusive responsibility of the federal government, but it never made its way into the final document. This omission led to an important legal dispute in the 1880s that instead entrenched provincial jurisdiction over intra-provincial business arrangements. This case constitutes one of the first big constitutional victories for the provinces over the federal government as it limited the potential scope of Ottawa’s jurisdiction over trade and commerce. And the federal government almost had exclusive jurisdiction regarding all roads and bridges linking the provinces. But New Brunswick’s Samuel Tilley successfully argued for removing this provision – likely because it was a powerful weapon in a provincial politician’s patronage arsenal.



  1. True or False: There was always widespread acceptance that members of the newly created Senate would be appointed for life by the Crown.


Answer: False. Representatives from Prince Edward Island argued at Québec that members of the upper house in Ottawa should be elected by provincial legislators for eight year terms. They were ultimately unsuccessful, but if this debate sounds familiar it’s because 150 years later we are still arguing about it.



  1. Lands, minerals and mines were recognized as important revenue sources for the fledgling provincial governments. But allocating such revenues to provinces was controversial. Which of the following did not appear in drafts of the BNA Act?:

(a) Newfoundland would surrender all rights to mines, minerals and unoccupied lands for $75,000 bi-annually.

(b) Prince Edward Island, with few to no natural resources of its own, would receive annual payments from the federal government to re-purchase its lands.

(c) the federal government would have jurisdiction to regulate all matters pertaining to customs duties but not on goods such as timber from New Brunswick and coal from Nova Scotia.

(d) Ontario would allocate 50% of its revenues from its rich mineral base to Québec to ensure some kind of equity when they were split apart as two separate provinces in 1867.


Answer: (d). Ontario’s representatives never offered to share its mineral revenues with Québec, nor did Québec leaders make such an offer to Ontario. All of the other ideas were floated at one time or another between 1864 and 1867, and all of them appear in one or another draft of the BNA Act.



  1. According to the BNA Act, 1867, which of the following was to be conjointly owned by the provinces of Ontario and Québec?:

(a) Hudson’s Bay Company

(b) the Law Society of Upper Canada

(c) the property on which the Parliament Buildings were erected in Ottawa

(d) Upper Duck Island

(e) all bridges crossing the Ottawa River between Hull and Ottawa


Answer: It might take more than one lawyer by surprise, but the answer is (b) the Law Society of Upper Canada. Prior to Confederation in 1867, the colony of Canada consisted of Upper Canada (now Ontario) and Lower Canada (now Québec). It had to be dissolved and its assets divided prior to Confederation in 1867. Schedule 4 of the BNA Act, 1867 provides that the Law Society of Upper Canada, among other assets, was to be conjointly owned by Ontario and Québec. Other assets to be owned jointly included the Montreal Turnpike Trust, Normal School and Lunatic Asylums.



  1. What issue or feature of the BNA Act, 1867 garnered the most discussion at the conference in Québec City in October 1864?

(a) funding for education and hospitals

(b) taxation

(c) the division between federal and provincial powers

(d) Senate appointments

(e) French language rights


Answer: More time was spent discussing the Senate (originally called the Legislative Council) than any other single issue – by far. George Brown later claimed that it took the delegates 3 days to sort out the issue and that the conference nearly broke up over it. Perhaps if they had devoted more time to it we wouldn’t still be debating it today.



  1. The BNA Act, 1867 or its drafts included a reference to:

(a) Truro, Nova Scotia

(b) the District of Algoma in Ontario

(c) Rivière-du-Loup, Québec

(d) Fredericton, New Brunswick

(e) all of the above


Answer: Fredericton, the capital of New Brunswick, was named in both the drafts and final version of the BNA Act, 1867. This is also true for the Algoma district where all men over 21 could vote even if they did not own real property. Resolution 68 at Québec provided that the new nation would build a railroad line between Truro and Rivière-du-Loup. So the answer is (e) all of the above.



  1. True or False: The provisions of the BNA Act, 1867 were relatively unique and distinct, designed by its colonists to address the country’s particular circumstances.


Answer: False. By the 1860s, drafting constitutional arrangements for the British colonies was practically a cottage industry. The legislation was one of several constitutional documents enacted by the UK government designed both to protect and promote the interests of the British Empire around the world. Although some provisions of the BNA Act, 1867 addressed specifically Canadian issues, many others were pinched or modified from earlier British legislation governing colonies in Australia, New Zealand, India and even British Columbia. The powers of reservation and disallowance, the role of the Governor General, the phrase “peace, order and good government,” and the appointment of judges are just a few of the many commonalities among the colonial constitutions.


No less interesting are the powers that were awarded to other colonies but not Canada. In 1855, for example, the British legislation establishing the colony of Victoria in Australia provided that its colonial government could amend its own constitution. Any such amendments had to be passed with an absolute majority of the Members of both the colony’s houses during second and third readings of the legislation. The amendment then was reserved for the signification of Her Majesty’s pleasure.