Section 22 of the Constitution Act, 1867 () is a provision of the Constitution of Canada setting out the number and distribution of seats in the Senate of Canada, the upper house of the Parliament of Canada.
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
The Constitution Act, 1867 is part of the Constitution of Canada and thus part of the "supreme law of Canada".Peter Hogg and Wade Wright, Constitutional Law of Canada, 5th ed. (Thomson Reuters (looseleaf; current to 2022)), para. 1:4.Constitution Act, 1982, s. 52, s. 53, and Schedule, item 1. 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.Donald Creighton, The Road to Confederation (Macmillan Publishing, 1964; reprinted ed., University Press, 2012); online version.Christopher Moore, 1867 — How the Fathers Made a Deal (McClelland & Stewart, 1997). Those conferences were followed by consultations with the British government in 1867.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. The Act was then enacted by the British Parliament under the name the British North America Act, 1867.Hogg and Wright, Constitutional Law of Canada, para. 1:2.British North America Act, 1867, 30 & 31 Vict., c. 3 (UK). In 1982 the Act was brought under full Canadian control through the Patriation of the Constitution, and was renamed the Constitution Act, 1867. Since Patriation, the Act can only be amended in Canada, under the amending formula set out in the Constitution Act, 1982.Hogg and Wright, Constitutional Law of Canada, para. 4:1.Constitution Act, 1982, Part V.Canada Act 1982, 1982, c. 11, s. 2 (UK).
Text of section 22
Section 22 reads:
Section 22 is found in Part IV of the Constitution Act, 1867, dealing with the legislative power of the federal Parliament. It has been amended by implication many times since 1867, and once by express amendment in 1915. The wording of section 22 has not been formally altered by the implied amendments,Paul Gérin-Lajoie, Constitutional Amendment in Canada (University of Toronto Press, 1950), p. 90. but the amendments since 1915 have been consolidated to the present wording by the federal Department of Justice in the online version of the Constitution Act, 1867.
Legislative history
The basic allocation of seats was determined at the Quebec Conference in October, 1864. The new provinces of Ontario and Quebec would each receive twenty-four seats. The Maritime provinces would receive twenty-four, with ten each to Nova Scotia and New Brunswick, and four to Prince Edward Island. Not part of the Maritime division, Newfoundland would receive four seats.Quebec Resolutions, resolutions 8 and 9, in G.P. Browne and Janet Ajzenstat (eds.), Documents on the Confederation of British North America (McGill-Queen's University Press, 2009; reprint of the 1969 edition), document 34, p. 155.
At the London Conference in December, 1866, the numbers were somewhat different, since neither Prince Edward Island nor Newfoundland were in attendance. The London Resolutions provided that Ontario and Quebec would each receive twenty-four seats, while the two Maritime provinces, Nova Scotia and New Brunswick, would receive twelve seats each.London Resolutions, resolutions 7 and 8, in Browne and Ajzenstat, Documents, document 74, p. 218.
However, the London Resolutions also provided that if Prince Edward Island were to join Confederation at a later date, it would receive four seats in the Maritime division, and Nova Scotia and New Brunswick would be reduced to ten seats each, as senators from those provinces retired or died.London Resolutions, resolution 9, in Browne and Ajzenstat, Documents, document 74, p. 218. If Newfoundland later joined, it would receive four seats, not part of the Maritime division.London Resolutions, resolution 10, in Browne and Ajzenstat, Documents, document 74, p. 218.
This arrangement was followed in the rough draft of the British North America bill prepared by a sub-committee of the London Conference, composed of the four provincial attorneys general."Rough Draft of the British North America Bill" (undated), clauses 5, 6, and 7; Browne and Ajzenstat, Documents, document 78, pp. 231–232.Creighton, Road to Confederation, p. 418.
A different approach was taken in the initial draft of the bill, in response to concerns raised by the Colonial Secretary, Lord Carnarvon. The initial draft did not use the concept of senate divisions, and simply allocated twenty-four seats each to Ontario and Quebec, and ten each to Nova Scotia and New Brunswick."Initial Draft of the British North America Bill" (January 23, 1867), clause 9; Browne and Ajzenstat, Documents, document 79, p. 249. Although provision was made for the eventual admission of Prince Edward Island and Newfoundland, there was no predetermination of the number of seats they would receive. Their representation would be left to the British Cabinet to determine at the time of admission."Initial Draft of the British North America Bill" (January 23, 1867), clause 44; Browne and Ajzenstat, Documents, document 79, p. 61. The initial draft also proposed that instead of appointments for life, senators would only hold their seats for ten years, with staggered retirement ages."Initial Draft of the British North America Bill" (January 23, 1867), clauses 12 and 13; Browne and Ajzenstat, Documents, document 79, pp. 249–250.
The third draft of the bill took yet another approach. It restored the concept of senate divisions, with the same numbers as in the rough draft, and the proposal for four seats for Prince Edward Island and Newfoundland in the event of admission."Third Draft of the British North America Bill" (February 2, 1867), clauses 11, 12 and 82; Browne and Ajzenstat, Documents, document 84, p. 267. Life tenure was restored, instead of ten year terms. However, the third draft provided for a temporary expansion of the Senate, in case of a disagreement between the Commons and the Senate."Third Draft of the British North America Bill" (February 2, 1867), clauses 16 and 19; Browne and Ajzenstat, Documents, document 84, p. 268. The fourth draft took a similar approach. The provisions were finalised in the fifth and final draft."Final Draft of the British North America Bill" (February 9, 1867), clauses 22 and 143, in Browne and Ajzenstat, Documents, document 86, pp. 306 and 336.
Purpose and interpretation
Regional allocation of Senate seats
The structure of the Senate was one of the most heavily debated issues considered by the Fathers of Confederation.Senate Procedure in Practice (Senate of Canada: 2015), p. 6. There was general agreement on some points. They agreed that the Senate would follow the model of the existing provincial bicameral parliaments. Their upper houses, called legislative councils, traditionally were appointed, not elected. The members of the new Senate (called the Legislative Council in some of the drafts) would similarly be appointed for life, not elected. This was seen as a return to British constitutional models, instead of the experiments with elected upper houses in the Province of Canada and Prince Edward Island.Creighton, Road to Confederation, pp. 144–146.
The major question was how the seats would be allocated. That issue was debated at length in all three of the conferences leading to Confederation: the Charlottetown Conference (September 1864);Creighton, Road to Confederation, pp. 117–118. the Quebec Conference (October 1864);Creighton, Road to Confederation, pp. 148–154. and the London Conference (December 1866).Creighton, Road to Confederation, pp. 414–416. The issue also arose in the Confederation Debates in the Parliament of the Province of Canada.Confederation Debates: Parliamentary Debates on the Subject of the Confederation of the British North America Provinces, Province of Canada, 8th Parliament, 3rd session (1865). For many of the delegates, the Senate, as a counterbalance to the lower house based on population, was considered the heart of the proposed federation.P.B. Waite, The Life and Times of Confederation (University of Toronto Press, 1962; republished, Robin Blass Studio, 2001), p. 121.
At the Charlottetown Conference, the Fathers of Confederation initially agreed that the Senate seats would be allocated by three regions, not by province. The new provinces of Ontario and Quebec would each be considered a region. The three Maritime provinces would be the third region. Each region would have the same number of seats, with the seats in the Maritime region divided between the three Maritime provinces: Nova Scotia, New Brunswick, and Prince Edward Island.
This approach rejected the idea of an upper house based on provincial equality, unlike the Senate of the United States, where each state had equal representation. The general feeling amongst the delegates was that state equality had been one of the factors contributing to the American Civil War, and should not be followed in the proposed new federation. John A. Macdonald, co-premier of the Province of Canada, was a particularly strong advocate of this position.Creighton, Road to Confederation, pp. 149–150.
Another point favouring regional representation was that there was considerable population imbalance between the provinces. Even taken together, the three Maritime provinces had only a fifth of the population of either Ontario or Quebec, so there was a concern that provincial equality would give the Maritimes too much political weight in the upper house. The representatives from Canada East (previously Lower Canada; now Quebec) insisted on regional representation for this reason, with equality between Ontario and Quebec.Richard Gwyn, John A.: The Man Who Made Us (Vintage Canada, 2008), vol. 1: 1815–1867, pp. 319–320.
Quebec Conference
The discussion on the Senate took a full week at the Quebec Conference and came close to breaking up the negotiations.Gwyn, John A., pp. 316–317.Waite, Life and Times, p. 100.
The delegates from the Province of Canada had already advanced the concept of regional representation at the Charlottetown Conference in September 1864. The Maritime delegates had accepted that approach in principle.Waite, Life and Times, p. 91. However, when Macdonald introduced the proposed resolution for seat allocation at the Quebec Conference, he raised a new issue: the representation of Newfoundland in the Senate. Newfoundland had not sent any delegates to the Charlottetown Conference, but did send delegates to the Quebec Conference.Waite, Life and Times, pp. 71, 182. Since Newfoundland had not been present at Charlottetown, no provision had been made at that time for its representation in the Senate.
To deal with this issue, Macdonald proposed that Newfoundland be included in the Maritime division. That approach would bring the Maritime division closer to the populations of Ontario and Quebec, but by dividing the seats between four provinces rather than three, would reduce the number of seats each Maritime province would receive. The Maritimers immediately protested that this was a substantive change, not what they had agreed upon at Charlottetown.Waite, Life and Times, p. 100.