The Canadian Constitution,
A History Lesson.
| TABLE OF CONTENTS. |
| No. 1 - English Common Law:- | No. 2 - The English Constitution:- |
| No. 3 - Three Periods Of English Constitutional History:- | No. 4 - The Glorious Revolution:- |
| No. 5 - The English Bill of Rights, 1690:- | No. 6 - French Regime In Canada:- |
| No. 7 - English Conquest, 1758-60:- | No. 8 - Constitution Act, 1791:- |
| No. 9 - Lord Durham & Union Act, 1840:- | No. 10 - British North America Act, 1867:- |
| No. 11 - Constitution Act, 1982:- | No. 12 - Notes:- |
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No.1 - Common Law & No.2 - The English Constitution:-
We, in Canada, are blessed with a constitution which is fully traceable to the constitution of England, rooted deep, as it is, in English common law, a subject with which I deal elsewhere. The English common law and the English constitution, if it cannot be said they are one and the same, are inextricably linked to one another. They are joined at the head; the one cannot be taken without the other. The English constitution was formed by the common law and it continues to move with it; and, the common law was allowed to grow and flourish, because of the English constitution. The English constitution is without a measurable depth and breadth; it is, by its nature, undefinable; it has never been written down in one spot, nor could it be.
No. 3 - Three Distinct Periods Of English Constitutional History:-
The English constitution is an interesting study and one we may easily enter into because of the work of Henry Hallam, a lawyer who had studied at Oxford, and who wrote, in 1827, the classic treatment covering that period between the times of Henry VII (1457) to the times of George II (1760), a critical period during which the English constitution was substantially formed. Hallam's great work is called The Constitutional History of England. English constitutional history either accounts for or has developed on account of, "the natural impulse of the English people ... to resist authority."
English constitutional history can be broken down into three distinct periods. The first period are those days before the arrival of the Tutor kings in 1485 when all law came from the king's mouth.1 With the end of the War of the Roses and the arrival of Henry Tudor, the English kings, thereafter, found themselves with an assembly of people with whom English kings were obliged to consult. (We need to remind ourselves at this juncture that these times were much before the notion of democratically elected assemblies, "these parliaments were but 'chance' collections of influential Englishmen."2) Thus, for the next two hundred years, or so, to the time of the Glorious Revolution of 1688, there was a Parliament to advise the kings of England, but scarcely a Parliament to control them. With the end of the Glorious Revolution came the end of absolute monarchy in England. Oh! To be sure, -- the appendages of a monarchy continued to exists and do to this day, but England, as of 1688, with the sovereign power resting in Parliament, became, in essence, a republic.
The history of England, is in effect a string of constitutional battles which usually resulted in royal concessions. The process shaped the Celtic aptitude into the recognizable character of the English people, one that reflects a distinct dislike for executive government. The English feeling for freedom is the result of centuries of resistance. Thus, as Bagehot writes, we "look on state action, not as our own action, but as an alien action; as an imposed tyranny from without, not as the consummated result of our own organized wishes."
No. 4 - The Glorious Revolution and No. 5 - The English Bill of Rights, 1690:-
The Glorious Revolution is a name given by historians to the events which led to the removal of James the II (1633-1701) from the English throne. The English political leaders became convinced that James planned to rule as an absolute monarch and to restore Catholicism to England. James' daughter and her Protestant husband, William of Orange of Holland, both in Europe at the time, were approached and recruited upon certain terms. William landed in Devon with his army in 1688; and James, finding himself without both military and popular support, fled to France where he was cordially received by Louis XIV. In an attempt to regain his throne, James landed in Ireland in 1689, but was decisively defeated in the Battle of the Boyne in 1690.
The terms by which William and Mary were placed upon the English throne were constitutionally enshrined in the Bill of Rights (1690). It specifically provided that the crown cannot levy taxes without the consent of Parliament, nor keep a standing army in times of peace; it also provided that Catholics could not be English sovereigns. (In those days Catholicism was more than just a religion; it was a way by which foreigners could intervene in the affairs of England.) Incidentally, the English Bill of Rights did not list the innumerable rights of an Englishman, nor did it have to; but it did confirm two important ones, especially in the context of any dispute which might arise between a tyrannical king and the "people's representatives" such as the very dispute which gave rise to the Glorious Revolution in the first place. It reiterated two rights which are the bastions against a tyrannic regime: the right to bear arms and the right to bring one's grievance before a court of law (right to petition).
It is important to note that as a direct result of the Glorious Revolution, and in defence of it, an influential Englishman, John Locke wrote two treatises on Government. Pushing aside the notion that kings reigned with complete authority because it was their divine right, Locke stated the view that government rested on popular consent and rebellion is permissible when government subverts the ends - the protection of life, liberty, and property - for which government is established.
No. 6 - French Regime In Canada:-
Canada, in the beginning was not an English country: it was French. During the course of the first hundred and fifty years (1610-1760) of European occupation, the English and the French in North America sorted themselves out and settled into two distinct and separate areas. These two ancient enemies could not get along in America any better then they could get along in Europe: they were almost continually at one another's throats. The English -- whose population rose dramatically and always surpassed the French, by far -- had concentrated themselves along the eastern Atlantic seaboard, from French Acadia down through to Spanish Florida. The French presence was thin and far flung. During the 17th century and the first half of the 18th, the French -- though never in any great numbers -- had settled themselves in the northeast of America along the Atlantic coast (Acadia) and notably along the banks of the St. Lawrence River with the French North American capital being at Quebec. Beyond that, the French had established trading posts on various points in the Great Lakes, in the Ohio valley and down the Mississippi to its mouth, such that it effectively thwarted English aspirations to expand into the American west.
Unlike their English neighbors, the French inhabitants of New France were never represented in legislative assemblies. The North American French population was ruled by the king from France through his representatives, the governor and the intendant.3 As it was back home, in France, things were run on feudal principles and was under the rule of an absolute monarch right up to the populist revolution of the late 1700's.4 The point is, that liberty, in the early French Regime during which time France possessed her colonies in North America, for the common man, was not something that was highly valued by the rulers. Public meetings for any purpose were jealously restricted.
New France was to suffer under its medieval political system; whereas, New England, in its natural adoption of the English constitution was to prosper. Sir John George Bourinot made the comparison:
"Whilst the country remained in the possession of France, the inhabitants were never represented in legislative assemblies and never exercised any control over their purely local affairs by frequent town meetings. In this respect they occupied a position very different from that of the English colonists in America. The conspicuous features of the New England system of government were the extent of popular power and the almost entire independence of the parent state in matters of provincial interest and importance. All the freemen were accustomed to assemble regularly in township meetings, and take part in the debates and proceedings. The town, in fact, was "the political unit," and was accordingly represented in the legislature of the colony. Legislative assemblies, indeed, were the rule in all the old colonies of England on this continent - even in proprietary governments like that of Maryland. On the other hand, in the French colony, a legislative system was never enjoyed by the inhabitants."5
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No. 7 - English Conquest, 1758-60:-
The English upon the conquest of Canada, 1758-60, had before them the challenge of setting up a new country; a challenge quite different, as we will see, from that faced by our American neighbours, when, a couple of decades later, having successfully revolted against the English "needed merely to maintain, develop, and correct the state of things political and religious, which already existed." The French and the English residents in the northern territory, which came to be known as Canada, were at different ends of the poles when it came to political and religious feelings, and in the two hundred and thirty years plus since, the French and the English in Canada, though to a considerably lesser degree, are still culturally polarized. There is always potential for a bad situation when newcomers take over, but when the newcomers are the victors and the vanquished are people who had come from lines which had settled on the land as a result of one hundred and fifty years of work; well, - you could only imagine the difficulties that might ensue. But, in Canada, as the history books tell us, things did not, in the beginning, go too badly for the English and the French. In fact, two peoples with different backgrounds came together in 1759, and, without too much dishevelment, began anew as one. As the years unfolded the English had exercised a marked influence on the new Canada, particularly in its governmental institutions; but the subjugated people, mainly because of English policy, continued to keep: their French culture, their French religion, their French language and their French law; in short all of their French habits; which, together with the added English influence, made Canada into a most distinctive nation.
The Englishmen that came to Quebec after 1759 were not thought to be, by Quebecers, intruders or enemies; the English were not open oppressors belonging to another creed. The conditions which had existed in the earlier French regime in Canada, the brewing colonial revolt to the south, the British dominance of the sea, the European dominance over the native Americans; all of these historical facts will lead one to understand why the British conquerors were more than just simply tolerated in Quebec, they were in many quarters welcomed. External forces were in play which hushed all lesser differences and jealousies into silence.
Great Britain, in 1763, set up Quebec as one of its colonies. The other two of concern to us, already existing at that time, were Newfoundland and Nova Scotia. Each of these colonies was governed by a governor, who was, "with the consent of the councils, and the representatives of the people, to make laws and ordinances for the peace, welfare and good government." One observes that these first representative councils were more advisory than legislative. The assembly could not tax, except to the extent that "the inhabitants of any town or district might be authorized to assess or levy within its precincts for roads and ordinary local services."
No. 8 - Constitution Act, 1791:-
The American revolution drove thousands of loyalists into the remaining British provinces of America. While the eastern territory, now defined as the Province of Quebec, got its share of loyalists, most headed to the western territory which we have come to know as the Province of Ontario. The Constitution Act of 1791, opposed by the British inhabitants of that part which was to become Lower Canada, divided Canada into two parts; with the intended effect of creating harmony. The French would be left in the majority in the one province, Lower Canada; and the English would be left in the majority in the other province, Upper Canada. "The British parliament reserved to itself the right of providing regulations, imposing, levying and collecting duties, for the regulation of navigation and commerce to be carried on between the two provinces, or between either of them and any other part of the British dominions or any foreign country."
The Constitution Act of 1791 did not have the intended effect, especially in Lower Canada. Disharmony between the French and English populations continued, and was further soured by those political problems naturally arising when a representative government is coupled with an irresponsible executive. This acerbity was "aided by the want of good municipal institutions; and the same constant interference of the imperial administration in matters which should be left wholly to the provincial governments."6
No. 9 - Lord Durham & Union Act, 1840:-
Shortly after outright rebellion (1837-8), Lord Durham was sent out and in time communicated his report to the British parliament, recommending to it that "no time should be lost in proposing to Parliament a bill for restoring the union of the Canadas under one legislature, and reconstructing them as one province." In the result the Union Act, 1840, was passed by the British parliament; it provided for "most liberal concessions, which would never have been thought of under the old system of restrictive colonial administration." However, there was one part of the 1840 act which gave great offence to the French Canadian population, viz., the clause restricting the use of the French language in the legislature. The British policy was plain, but unacceptable, "without effecting the change so rapidly or so roughly as to shock the feelings and trample on the welfare of the existing generation, it must henceforth be the first and steady purpose of the British government to establish an English population, with English laws and language, in this province, and to trust its government to none but a decidedly English legislature." (The Durham Report.)
No. 10 - British North America Act, 1867:-
Thus, the stage was set for the British North America Act, 1867, (B.N.A. Act), a primary piece of legislation under which Canadians have been working, and living with, ever since.7 It did nothing but spilt up the areas of governmental responsibilities, as was required under a federal system. It did not establish a new constitution for Canada, and, it is not correct to refer to the B.N.A. Act as Canada's constitution. Canada had a constitution before the B.N.A. Act and the B.N.A. Act did nothing to change it. The B.N.A. Act amalgamated the individual provinces into one country, and, of necessity, under a federal system8. Essentially, all the B.N.A. Act did was to divvy up the departments of government between two levels, one being the central or federal government and the other consisting of the provincial or territorial governments. The B.N.A. Act spelled out this division of powers in sections 91 and 92; all done, in order "to protect the diversified interests of the several provinces, and secure efficiency, harmony, and permanency in the working of the union." The B.N.A. Act, set up a general government, "charged with matters of common interest to the whole country," and local governments for each of the provinces, "charged with the control of local matters in their respective sections."9
Four provinces: Ontario, Quebec, Nova Scotia and New Brunswick, came together at the passing of the B.N.A. Act, in 1867. The people of the Red River, Manitoba became part of Canada in 1870; British Columbia in 1871; and Prince Edward Island in 1873. Thus, Canada, by 1873, consisted of these seven provinces, together with Rupert's Land and the Northwest Territories. By 1905 the provinces of Saskatchewan and Alberta were created, and in 1949 Newfoundland joined in.
No. 11 - Constitution Act, 1982:-
The effect of the Constitution Act, brought into being by the Queen's signature that rainy day, at Ottawa, back in April, 1982, so we were told, was to give Canada, finally, her own constitution: Canada had come of age. Well, Canada had a constitution since before 1867; and, this 1982 legislation, did, not, change this fact. What the prime minister of the day achieved, Prime Minister Trudeau, was to feed a movement in Quebec, a movement which had disclosed itself in the late 1960s, a movement for complete political independence from the rest of Canada. In the face of this movement, the federal government and all the other provinces went ahead with the Constitution Act of 1982, in spite of the fact that Quebec had refused to sign the agreement which had formed the basis of this 1982 legislation. In any event, the Constitution Act preserved the B.N.A. Act, but did cut away the colonial appendage of the requirement to go back to mother parliament, the British parliament, for future "constitutional" changes; it also put in writing (as if they did not, prior to that point, exist) certain fundamental rights and annexed it as the Charter of Rights & Freedoms.
The Charter was a political show, and a bad one at that; it backfired. It was thought at the time that such a listing of "rights" would impress people and bring them together with other parts of the country. It was especially aimed at those in Quebec; but Quebec, as represented by their provincial government leaders of the time, didn't want it (for whatever reason). Stupidly, the Prime Minister and the Premiers of that time, refused to wait for an unanimous agreement (necessary in any real partnership, no matter the rules) and pushed The Charter through, without Quebec's agreement. Quebec, with good reason, has been mad ever since.10
We had rights and a constitution before 1982, and the governments back then gave us nothing we did not already have. In any event, "constitutional rights," as some people call them, cannot be created by a country's constitution. The reason for this and the reason for the irrefragable nature of such rights, is that basic human rights existed way before any one dreamt up the idea of writing up a constitution. For a government -- the idea of the divine right of kings having gone by the boards -- to claim legitimacy, what was needed, was a basic set of principles to which all (not just the majority) would subscribe, assuming fully they knew what was at stake. It's a fiction, really, but one that has and will work, provided the constitutional rules are simple, such that they might be understood by all, the educated and the not so educated. A country's constitution is that which the governing part of society tells the rest of us what we cannot do (restrictive, negative, such as is the nature of criminal law). So, therefore, "rights" can never be given by a country's constitution, all a constitution can only ever do, is to spell out when an individual person (an identifiable person at the time of the offense and not individuals within a group identifiable by some trait) will loose, by the the criminal law process, one or more of his or her innate rights (to life, to liberty and to property).11
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No. 12 - NOTES:
1 The Magna Carta of 1215 was but an aberration. It contained a venerable list of rights to which, these days, we can lay real claim, including: The people can only be taxed by a bill passed through the parliament of the people (Art. 12); a Court (of Common Pleas) independent of the executive (the king) was set up (Art. 17); No servant of the crown is able to take a step that effects a citizen's rights without corroborative evidence (Art. 38); The right to a trial by a jury of ones peers (Art. 39); To none will we sell, to none will we deny, to none will we delay right or justice (Art. 40); and, Free passage in and out of England for purposes of trade (Art. 41). The Magna Carta, however, was but a list: the kings and the nobles within a year or two of 1215 returned to their old ways of continual fighting amongst themselves and hundreds of years were yet to pass before any real progress was to made in respect to the rights of the people.
2 Bagehot, The English Constitution, 1867 (Oxford University Press, 1928).
3 Both were powerful people within the colony. Their functions were different, though, in the final analysis, the governor was the superior of the two. I refer the reader to the brief sketch that I have put together on François Bigot.
4 In New France, as in France, absolutism and centralization were the principles on which government was conducted. This compared to "the great governing principle of the English system, which has developed itself slowly since the revolution of 1688 - that great principle which makes the ministry of government of the day responsible both to the sovereign and the legislature for all matters of administration and legislation, and allows it to continue in office only while it retains the approval of the people's house." (See, Bourinot's, A Manual of the Constitutional History of Canada, 1901, (Copp, Clark), page 154.)
5 Bourinot's, Parliamentary and Practice (Montreal: Dawson, 2nd ed., 1892), pp. 1-2.
6 It should be noted that, "by 1848 the provinces of Canada, Nova Scotia and New Brunswick, were in the full enjoyment of the system of self-government, which had been so long advocated by their ablest public men."
7 The preamble to the B.N.A. Act declares "with a constitution similar in principle to that of the United Kingdom."
8 While the theory of federalism seems clear-cut, the reality has been another matter. Since the beginning, the problems of defining the separate powers of the two levels of government and of obtaining continuing agreement on them have been the subjects of enduring dispute.
9 The Quebec Resolutions of 1865.
10 By the Statute of Westminster, in 1931, the British Parliament recognized the independence of self-governing countries of the Commonwealth. But Canada was not ready for such a step as it was unable to agree to an amending process, and thus, needed the British Parliament as a continuing piece of constitutional trapping, so that it might amend the B.N.A. Act, an act of the British Parliament. Canada, had itself excepted out of the primary provision of the Statute of Westminster. Try as they might, since 1927, the federal government and the Canadian provinces, mainly because of the English/French thing, could never come up with an amending formula acceptable to all -- and unanimity, in the setting up of an initiating constitutional term, as constitutional amending formula can only be, was necessary. After, many, many tries, in 1981, everyone threw their hands up: one prime minister and nine premiers [not Quebec] and a "constitutional" amending formula was struck. In 1982, the Canadian government went to an outside authority to achieve constitutional change which it could not achieve at home. What the Canadian government did back in 1982 was not only to ask the British Parliament to send a British statute, the B.N.A. Act, back to Canada rebaptized as a Canadian statute with power to amend; but, at the same time, if you will please, to amend it. It must be borne in mind that while Canada might not have been able to do the first thing (patriate its constitution), once repatriated, it most certainly could by its own constitutional process attend to its own constitutional amendments. It was, as one British MP, the Right Honourable J. Enoch Powell, put it, a fraud perpetrated on the Canadian people. Enoch Powell:
"My object is to distinguish the two separate things which the Committee is invited to do in the Bill, and to approve one of them and exclude the other. My purpose is to ensure that the Bill patriates to Canada the right to make the constitutional and other law of Canada, removes the constitution from the statute book of this country and removes our hitherto retained right to legislate for Canada. That I describe in a single word -- patriation.
The Bill also enacts a charter of rights and constitution for Canada which has not existed before. I believe that the Bill should do the first of those two things and should not do the second ..." [As quoted by Kenneth McDonald in His [Trudeau] Pride Our Fall, (Toronto: Key Porter Books, 1995) pp. 38-9.] Powell, incidentally, and completely collateral to his point, was of the view that the charter in its use of general terms, was "incompatible with the rule of law ... which requires that the law shall be so defined and of such a character that the citizen may reasonably inform himself in advance of what will or will not be adjudged to be lawful.")
11 To understand the inalienable nature of a person's rights, one will have to have an appreciation of the theories which were first espoused, in 1690, by John Locke.