Preamble to the Constitution Act, 1867
[8][9][10] The Preamble reads: Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire: And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared:
And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America:[11]The origins of the Preamble are in the Quebec Resolutions adopted by the Fathers of Confederation at the Quebec Conference in 1864: These three resolutions were continued at the London Conference of 1866, which finalised the agreement for Confederation.
[15]This approach is carried out by the fact that the monarch is the head of the federal executive, aided by the Privy Council for Canada.
Parliament operates under the principles of responsible government, which had been implemented in British North America in the 1840s, beginning in Nova Scotia.
The Alberta Legislative Assembly then passed three additional statutes, which the federal government referred to the Supreme Court of Canada for an opinion as to their constitutional validity.
With respect to the Accurate News Act, the six judges all held that it was ultra vires, but differed on their reasons.
They held that the Preamble's reference to a constitution "similar in principle to the United Kingdom" was a guarantee of the vibrant, free debate necessary for a parliamentary democracy to exist and function.
The attempt by the Alberta government to limit free media infringed that principle and was ultra vires on that basis.
[19] On appeal, the Judicial Committee of the Privy Council agreed with the Supreme Court's rulings, but did not find it necessary to address the issue of an implied bill of rights under the Preamble.
One of the judges, Justice Fauteux, cited the Preamble, as well as the Quebec Resolutions, in support of this conclusion: The suggestion that this distribution of legislative authority, enacted by the Imperial Parliament, under the then "existing circumstances", could now be altered by Parliament or the Legislature of a province by transfer, exchange, or delegation, is repugnant to the very intent manifested in the above Resolutions ultimately implemented under the Act.
However, a differently-constituted majority in the same case held that as a matter of constitutional convention, the federal government could not proceed unilaterally.
[23] The Preamble also played a part in a major case on the relationship between parliamentary privilege and the Canadian Charter of Rights and Freedoms: New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) (1992-93).
The unanimous judgment of the Court stated: Allowing for the obvious differences between the governance of Canada and the United Kingdom, it was nevertheless thought important to thus emphasize the continuity of constitutional principles, including democratic institutions and the rule of law; and the continuity of the exercise of sovereign power transferred from Westminster to the federal and provincial capitals of Canada.
