This question came up in Trivia Dominoes, but I don’t want to hijack a perfectly fine thread game:
Trivia?!? Much ink has been spilled, and electrons bent out of shape over this issue.
In 1864, when the Fathers of Confederation met in Quebec to lay the framework for the new country, they did not agree on what it would be called. The delegates were from the Province of Canada, Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland, and there was not yet a strong sense of the new nation to settle on a name.
Quebec Resolution 71 therefore provided:
- That Her Majesty the Queen be solicited to determine the rank and name of the Federated Provinces.
Note that there are two variables there: the “rank” and the “name”.
When they met again in London in 1866 (now just delegates from the Province of Canada, Nova Scotia and New Brunswick), they passed a similar provision in the London Resolutions:
- That Her Majesty the Queen be solicited to determine the rank and name of the Confederation.
However, by this time, there was general agreement that the name should be “Canada”. One unnamed delegate from the Maritimes proposed that, and it was accepted unanimously by the Conference.
That left the “rank”. John A. Macdonald wanted the new country to be the “Kingdom of Canada”, and that name was used in some of the drafts of the British North America Act.
Until the Colonial Office and the Foreign Office got wind of it. “Will no-one think of the Americans!?” was their anguished cry. You see, our republican neighbours to the south were ticked off at Britain, and the Province of Canada, over various episodes during the Civil War, where they thought that Britain and the Province of Canada had favoured the South. (Indeed, our esteemed Elendil’s Heir can expound on one of those events. May have to ply him with beer.)
The mandarins at the Colonial Office and the Foreign Office were concerned that the US, with its republican nature, was already suspicious of this new-fangled British country that was being established, with a monarch, no less! If it was officially named a “Kingdom”, who knew what the consequences might be. What if that Union army, the largest in the world and far better equipped than the British Army units in British North America, were to turn north? Brows were furrowed, lips were pursed, and Whitehall politely told John A. to get stuffed (on this issue, at least).
So, back to the drawing board. And, one account is that Leonard Tilley, one of the leading delegates from New Brunswick and a pious man, took refuge in his Bible and came across Psalm 72, verse 8: “He shall have dominion also from sea to sea…” Perfect, Leonard said to himself, and proposed to the conference that the new country, with transcontinental ambitions, should be called a “Dominion”. (It also fit with the pattern of British imperial law, with references to “Her Majesty’s dominions”, as a general term for plantations and other colonies.)
Lord Carnarvon, the Colonial Secretary, liked it and gave it his blessing. The Prime Minister advised Her Majesty. She apparently thought it was rather humdrum, but agreed to it. (Neither the PM nor the Queen were advised that John A had wanted “Kingdom”. The power of bureaucrats to squash ideas they didn’t like was well-established in Whitehall, long before Sir Humphrey’s day.)
And so, the new country had the rank of “Dominion”, and the name of “Canada”, as set out in s. 3 of the British North America Act, 1867:
3. It shall be lawful for the Queen, by and with the Advice of Her Majesty’s Most Honourable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six Months after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick shall form and be One Dominion under the Name of Canada ; and on and after that Day those Three Provinces shall form and be One Dominion under that Name accordingly.
But you will note that it doesn’t say that the name is “Dominion of Canada”; it says that the new country will be a “Dominion”, but “under the name of Canada”. “Dominion” is a rank; “Canada” is the name.
The central government was generally referred to as the Dominion government, and as a result of the Colonial Conference of 1907, and the Balfour Declaration of 1926, the six major self-governing dominions became known as “Dominions” - capital D, to distinguish them from British colonies. The six were: Canada, Australia, the Union of South Africa, New Zealand, the Irish Free State, and Newfoundland.
Fast forward from 1926 to 1949, skimming over considerable unpleasantnesses, and we come to the proposal that India become independent. As a transitional stage, it would be a “Dominion” (capital D) but would become a republic. But, it wanted to stay within the British Commonwealth, as the Empire was now being referred to. More furrowed brows in Whitehall, but it was done. Fully independent republics could be part of the Commonwealth.
But what did that mean for the Dominions? They decided to abandon that term in favour of “Commonwealth realms”, to highlight their independence, while maintaining the monarch as their sovereign. The change happened gradually. The Irish Free State dropped out and became a republic, the bankrupt Newfoundland became a province of Canada, the Union of South Africa … well, we know what happened there. But, flowing from India’s decision to go republican and stay in the Empire Commonwealth, the concept of a Commonwealth realm was fully established.
So, why hasn’t s. 3 of the British North America Act, 1867 been amended? Well, that’s another long story, but Prime Minister St Laurent finessed the issue by saying that the rank of the country had changed, in the classic British way, without the need for a constitutional amendment. Canada was now a fully independent realm, no longer a “Dominion”, and s. 3 had been overtaken by more recent constitutional events. Plus, the name is “Canada”, anyway; says so right in s. 3.
Skip ahead three decades to 1982, when the British Parliament, at the request of the two houses of the Canadian Parliament, passed the Canada Act 1982, which refers to “Canada”, not the “Dominion of Canada”. In Canadian constitutional law, repeals by implication are accepted, so there is a pretty good argument that the Canada Act 1982 implicitly changed the rank of the country by dropping all references to “Dominion”, and that part of s. 3 has been amended accordingly. (Canada, like Britain, is much more comfortable with constitutional fudges work-arounds than some other countries.)
At any event, since 1982, the federal government has abandoned almost all uses of “Dominion”, in law and in practice.
The article that Dr Paprika cites in the Canadian Encyclopedia is a bit of an outlier. It was written by Eugene Forsey, who was a radical-conservative-socialist. He was one of the founding delegates of the Canadian Commonwealth Federation, the socialist party that emerged from the Great Depression, and which eventually came to power in a certain rectangular province. At the same time as he was a radical socialist, he had a tremendous small-c conservative respect for the principles of British constitutionalism, as implemented in Canada via the British North America Act, 1867. He rejected any suggestion that the rank of the country could be changed implicitly, which is reflected in the Canadian Encyclopedia article.
The issue has never come up in court, and it’s difficult to see how or why a court would rule on it, so there certainly is ambiguity over the issue of implied repeal. But s. 3 says the name of the country is “Canada”, and that’s what the federal government has run with since St Laurent’s time.
