Constitutional anniversaries, like constitutions and countries themselves, can be complicated. July 1st in Canada has always been so. I hope it stays that way.
1 July 1867 began in disagreement. John A Macdonald thought the timing was wrong and pressed for a date later in July. Great Britain decided otherwise. “[W]e are to be united in Holy Matrimony on 1st July,” Macdonald wrote, “a fortnight too soon.”
Whether premature or not, Macdonald recognized that on 1 July, “Confederation will be a fixed fact and we think it well that some ceremony should be used in inaugurating the new system.” 150 years later we are still debating whether the “new system” the framers of the British North America Act (renamed the Constitution Act, 1867) is worth celebrating.
More than a moment for just parades and fireworks, picnics and barbeques, Canada’s constitutional anniversary has always been about seeing the constitutional past reflected through the constitutional challenges of the present. That is not a sign of Canada’s constitutional weakness, but of its enduring strength.
“Every one acknowledges that Canadian Confederation has been a great success, and those who had the greatest doubts about the venture are now ready to confess that the plan was a wise one,” a confident Globe editorial announced the year Canada turned 10 in 1877. The Manitoba Free Press agreed, although pointed out that “some difference of opinion as to the usefulness of the Senate” remained (some constitutional truths remain eternal).
By the time Canada reached 50, the First World War raised different constitutional challenges. “It is the fate of nations,” the Vancouver Sun argued “to have their national structures cemented with blood,” while Le Devoir warned that conscription posed a danger to “l’avenir de la nation,” and proposed to ruin “les principes sur lesquels la Confédération fut faite.”
Canada celebrated in 1967 with equal parts constitutional optimism and worry. “[T]he core of the constitution is 100 years old and looks its age,” the Ottawa Citizen noted. “[N]o nation has celebrated,” the Winnipeg Free Press observed, “with more doubt and inward questioning.” With Quebec in the midst of the Quiet Revolution, Le Devoir complained of a Canadian constitution “baigne dans un climat de colonialism et d’imperalisme.” “Oh Canada, how can I celebrate with you this Centenary,” Chief Dan George of the Tsleil-Waututh Nation asked the crowd of 32,000 at Vancouver’s Empire Stadium on July 1. “Shall I thank you for the reserves that are left to me of my beautiful forests?”
Constitutional fatigue and frustration dominated editorial coverage of Canada 125 in 1992 – a precursor to the failed Charlottetown Accord later that year. “The constitutional striptease continues,” the Ottawa Citizen observed, “but it looks more tawdry and predictable by the day.”
Beneath the surface of the official celebrations, Canada 150 has sparked the same constitutional introspection of the here and now. Indigenous leaders and scholars are calling for a decolonizing of Canada’s constitutional documents, while Quebec proposes “to resume a meaningful dialogue on the evolution of federalism.”
Is it any wonder that many Indigenous peoples refuse to cheer for a constitution that treats them as a subject to control – listed in section 91 of the Constitution Act, 1867 alongside the postal service, lighthouses, and banks – rather than as constitutional partners? Can we really raise a glass to Canada’s constitutional anniversary given the unrepaired fracture with Quebec over its exclusion in the Constitution Act, 1982? Can 1 July celebrate the constitution given the legalized racism of Canada’s constitutional history: the Chinese head tax, the denial of voting rights on racial grounds, and the internment and dispossession of Japanese Canadians?
I think we can, especially if we view our constitution not as a fixed point of light, but as a spectrum of principles that we aspire to recognize and live up to.
Canada’s constitution represents more than the omissions, flaws, and missteps made in its name. The Constitution Act, 1867 is hardly an act of poetry. It is no fun to read. But a deeper look into the structures it created, and the ideas that lay behind them – democracy, federalism, collective and individual rights and freedoms, the rule of law – reveals a document of deep constitutional wisdom.
“The Fathers of Confederation found a means of solving problems that seemed insoluble,” the Globe wrote in in celebration of Dominion Day 100 years ago, “and of evolving peace and national unity from jarring elements, racial and religious, that appeared to be irreconcilable.” At Canada’s constitutional core is an aspiration to live and flourish together in mutual respect of each other’s rights and aspirations. The “Desire to be federally united” as the Constitution Act, 1867’s preamble proclaims, is the guiding spirit of the Constitution Act, 1867 – even if the document and its history sometimes failed to deliver on that promise.
At the same time we should celebrate Canada’s undeniable constitutional successes: the acts of vision and humility, principle and compromise, wisdom and innovation that made and continues to make this multinational and multicultural nation possible. To live up to and achieve the constitutional ideals we have set for ourselves is the ongoing legacy of Confederation.
In that spirit we can begin to image a different constitutional relationship with Indigenous peoples, we can continue to work on the shared project of Canadian constitutionalism, and we can continue to tell and learn from our moments of constitutional regret and failure.
On 1 July, that is the Canadian constitutional tradition I will happily celebrate.