Section 16 of the Constitution Act, 1867: The Queen, the Capital, and Canadian Constitutionalism

Abstract

Section 16 of the Constitution Act, 1867 states that “[u]ntil the Queen otherwise directs, the Seat of Government of Canada shall be Ottawa.” This is is one of the least-studied provisions in the Constitution of Canada. The legal criteria for exercising the section 16 power to move the capital, which could have important consequences for Canadian politics and national identity, are unclear. Our understanding of the content of Canadian constitutional law accordingly remains incomplete. While section 16 appears on its face to mean that the Queen alone can move the capital of Canada, the minimal judicial and academic commentary on the section provides competing interpretations of how to understand it. The section 16 power to move the capital could conceivably be exercised by the Queen herself, the Governor General alone, the Governor General in Council (GGIC), or Parliament — or may even be defunct. This article resolves this issue by determining the meaning of “Seat of Government,” “Ottawa,” and “the Queen”
in section 16 and considering the provision’s relationship to other constitutional provisions and texts. It ultimately argues that the power to move the capital of Canada resides in the GGIC, at least by convention, if not by law, and that any
remaining royal right to reclaim the power can only be exercised, again at least by convention, in consultation with the GGIC. It also considers and analyzes potential amendments to section 16 and the requirements for such amendments.

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ORCID for Michael Da Silva: orcid.org/0000-0002-7021-9847

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