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.
Appropriation and Tax Bills 53 Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.[11]
Section 53 is found in Part IV of the Constitution Act, 1867, dealing with federal legislative power. It has not been amended since the Act was enacted in 1867.[11]
Legislative history
Section 53 traces its origins back to section 57 of the Union Act, 1840, the constituent statute of the Province of Canada, which dealt with this issue:
Provided always, that all Bills for appropriating any Part of the Surplus of the said Consolidated Revenue Fund, or for imposing any new Tax or Impost, shall originate in the Legislative Assembly of the said Province of Canada...[12]
The Quebec Resolutions contained a similar provision,[13][14] as did the London Resolutions.[15][16]
Following the agreement on the London Resolutions, a sub-committee composed of the four provincial attorneys general prepared a rough draft of the British North America bill. It contained a similar provision, with the wording tracking section 57 from the Union Act, 1840.[17][18][a] Subsequent drafts took the same approach, with minor stylistic changes.[19][20] Section 54 took final form in the bill introduced in the British Parliament and enacted as the British North America Act, 1867.[11]
The control over appropriation and taxation had been one of the major issues which led up to the English Civil War. Following the Glorious Revolution, the Bill of Rights 1689 was passed, which declared: "That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal."[22]
Over the course of the next two centuries it became clearly established that the British House of Commons has full control over the finances, including taxation, appropriation, and review of expenditures, to ensure public money has been only been spent as authorized by appropriation acts.[23][24][25]
Colonial period and the Province of Canada
Similar disputes over taxes and appropriations arose in the colonial period of British North America in the early 19th century. The elected legislative assemblies asserted control over the public finances, but the governors (appointed by the British government) and the legislative councils opposed control by the assemblies.[24][26][27][28]
Lord Durham, whose report in 1838 was highly influential
To resolve this dispute, when the Union Act was passed by the British Parliament in 1840, combining Lower Canada and Upper Canada into the Province of Canada, it included section 57. That section set out the principle that bills relating to taxes and appropriations had to originate in the elected Legislative Assembly, but combined with a requirement that the Assembly could only consider financial measures which were recommended by the governor.[12]
This provision was proposed by Lord Durham in his Report on the Affairs of British North America in 1838. Durham considered that this approach, based on the financial practices of the British government, would reconcile the elected Assembly's control over public funds with the need for budgetary control by the executive.[29]
This combined control over finances by the elected legislative body and the executive contributed strongly to the development of responsible government.[24] As a subsequent editor of the Report summarised, "no money votes were to be proposed except with the consent of the Crown, i.e., by the responsible ministers".[30]
House of Commons control over public finances
Like the British House of Commons, the Canadian House of Commons has asserted full control over public finances, relying in part on the historical development of these principles in the United Kingdom.[31] For example, Standing Order 80 of the Canadian House of Commons asserts the basic principle that the House of Commons has full control over the public finances:
Commons alone grant aids and supplies. 80(1) All aids and supplies granted to the Sovereign by the Parliament of Canada are the sole gift of the House of Commons, and all bills for granting such aids and supplies ought to begin with the House, as it is the undoubted right of the House to direct, limit, and appoint in all such bills, the ends, purposes, considerations, conditions, limitations and qualifications of such grants, which are not alterable by the Senate.[32]
Standing Order 80 echoes the language of a similar resolution passed by the English House of Commons in 1678.[24]
Relationship to Section 54
Section 53 is balanced by section 54 of the Act, which requires that any tax or appropriation bills must be accompanied by a recommendation from the Governor General. The recommendation by the Governor General is always on the advice of the federal Cabinet. The combined effect of these two sections is joint control over public finance, reconciling the principle of control by the Commons with the need for budgetary control by the executive.[31][24]
Application to the provinces
Although section 53 only refers to the House of Commons, it also applies to the provincial legislative assemblies. Section 90 of the act provides that several of the provisions relating to the federal Parliament, including section 53, also apply to the provincial legislatures. As of July 1, 1867, three of the four original provinces also had appointed upper houses, similar to the Senate.
Supreme Court cases
The Supreme Court of Canada has given guidance on the meaning of section 53 in two major taxation decisions. In Re Eurig Estate, a majority of the Court held that section 53 implements the principle of "no taxation without representation". Taxation measures must be authorised by legislation. The majority found that a probate fee imposed by order-in-council had not been authorised by legislation, and therefore did not comply with section 53.[33] In a subsequent case, Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), the Court held that a law can delegate to the Cabinet the power to impose a tax by order-in-council, provided the delegation is clear and express.[34]
Related provisions of the Constitution Act, 1867
Section 54 of the Act provides that the House of Commons is not to proceed with a money bill unless the Governor General recommends the bill as necessary for the public finances.
Section 90 of the Act applies various provisions of the Act to the provincial governments, including "provisions relating to appropriation and tax bills".
↑ Quebec Resolutions, resolution 48, in G.P. Browne and Janet Ajzenstat (eds.), Documents on the Confederation of British North America (Montreal and Kingston: McGill-Queen's University Press, 2009; reprint of the 1969 edition), document 34, p. 162.
↑ W.H. McConnell, Commentary on the British North America Act (Toronto: MacMillan of Canada, 1977), pp. 6–8, 105–106, 131-132.
↑ Fernand Ouellette, Lower Canada 1791–1840: Social Change and Nationalism (Toronto: McClelland and Stewart, 1980), pp. 197–200, 213, 253–255.
↑ Gerald M. Craig, Upper Canada: The Formative Years, 1784–1841 (Toronto: McClelland and Stewart, 1963), pp. 191, 211–212.
↑ Donald G. Creighton, "The Struggle for Financial Control in Lower Canada, 1818-1831", Canadian Historical Review, vol. 12, no. 2 (June 1931): 120–144.
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
