Jan. 17, 2022

Part 1 – The Canadian Constitution – maligned and misunderstood

The Canadian Constitution is a unique document that deserves to be revered. It came into being to resolve bitter political rivalries that rendered the Province of Canada, formerly Upper and Lower Canada, ungovernable.

Another factor for confederation was the end of the American Civil War in 1865. The Canadian colonies knew that the US had a large, experienced federal army that might invade and add to its territory. The French-speaking residents of the former Lower Canada were concerned as if an invasion succeeded, the US was unlikely to grant them the privileges they enjoyed under the 1774 Quebec Act.

The US Constitution, which came into effect 90 years earlier, in 1779 was extensively consulted. The US and Canada would exist as neighbours, and Canadians would expect similar rights and freedoms enjoyed by their neighbours.

The Canadian delegation and the British government wanted to preserve the Westminster form of governance, familiar to all.

What emerged was the framework for a Constitutional Monarchy. The Monarch, represented in Canada by a Governor General, became the Executive Branch, the Senate and a Commons (together) formed the Governance Branch and a Judicial Branch.

The Senate consisted of four divisions: East, Quebec, Ontario, and West, to ensure that legislation passed by the Governance Branch did not work against the interests of any division.

The Attorney General is Head of the Judicial Branch and required to be politically neutral along with the Judiciary, Senate, Governor General, Privy Council (advisory to the GG), and the Civil Service.

Appointees to public office serve at the Monarch’s pleasure, and their appointment can be rescinded for malfeasance.

Various subjects were set out as responsibilities of the federal government, and a separate list set of subjects as the responsibility of provincial governments.

The constitution is based on several unwritten principles:

  • The Executive, Privy Council (advisors to the GG), Senate, Judiciary, and Civil Service must be politically neutral, ready to work with whatever government the people elect.
  • The Senate was divided into four regions, the West, Ontario, Quebec and the East. Each region was responsible for ensuring that legislation passed by the Commons did not unduly interfere with the interests of regional residents.
  • Residual obligations not set out in the lists of subjects in either the federal or provincial domains were considered to be in the federal domain.
  • Governance should be at the level closest to the people governed.

In reading the constitution, one must be mindful of the meaning of language in use when it was written. English and French are living languages that evolve; words used in 1867 have a different interpretation 155 years later.

Section 91 notes: “And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”   

The intent is to confine federal jurisdiction to subjects enumerates and avoid interfering in local subjects assigned to the provinces. It follows that if a subject not enumerated was of a local or private nature, the federal government should relegate the subject to the provinces.

The same principle applies to provinces that should give to municipalities (or whatever other designation internal jurisdictions are given) governance over subjects the internal jurisdiction can manage.

The major flaw in the constitution is that the original draft made no provision for how the document was to be amended.

Amendment provisions became an issue with the passage of the British Statute of Westminster on December 11, 1931. The Statute granted Canada independence from British regulations and the freedom to pass, amend, and repeal laws within an autonomous legal system. Provinces and the federal government could not agree on a means for amending the constitution at the time. Consequently, amendments to the constitution had to be approved by Britain until 1982.

After considerable political wrangling, a formula for amendment was agreed upon and was the central provision of the 1982 Canada Act. Unfortunately, the bar for modification is set so high it is almost impossible to meet. It could be employed in a confederation where political infighting did not trump common sense and reason, but that is still a Canada of our dreams.

I will deal with how we went wrong in Part 2.

Here is a hint: The lists of subjects enumerated as either federal or provincial are misrepresented by politicians as “powers.” They are not powers over the people of Canada; they are obligations to the people of Canada.

For example, Parliament must provide Militia, Military and Naval Service, and Defence. It must ensure that we have a robust enough military to protect our sovereignty and prevent an invasion of our lands and waters. That is not an option; it is an obligation.