Blog

Isn't Canada Better than the USA?

Dear Sir or Madam,

This week we have broken down the components of Canada’s constitution, written and unwritten, rigid through legislation and flexible through case law. Today we’ll move from our living constitution’s composition to its function, and interestingly, its limits.

Per s. 52 of the Constitution Act, 1982, the constitution is the “supreme law of Canada”, and any law inconsistent with the constitution is of no force or effect. Essentially this creates a conversation between parliament and the courts. The government can pass laws to govern society, which courts can declare unconstitutional, that is to say, not in keeping with the Canada’s prescribed societal principles. Once a law is declared of no force and effect, the government must then repeal the law to take it off the proverbial books, a woefully flawed process, as we in Alberta recently encountered.

The BNA Act is a large component of our constitution; another significant part is the Canadian Charter of Rights and Freedoms.¹ Charter rights are similar to ss. 91 and 92 of the BNA Act in that they function as a lens through which courts examine the constitutionality of Canadian laws. The Charter’s first section is a limitations provision, one of the most fascinating limits of Canada’s Constitution.

Section 1 of the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Canadians enjoy fundamental rights and freedoms, subject to the reasonable limits of our free and functioning democratic society.

Canada’s “unique brand of constitutionalism” in the Charter – with a prescribed but limited rights approach – has been influential across the globe, including “China, Uganda, South Africa, Sri Lanka, New Zealand, Israel and the United Kingdom”.²  The strongest contrast however is with the United States’ approach to limiting rights. The First Amendment of the United States Constitution, states, “Congress shall make no law … abridging the freedom of speech, or of the press.” The amendment is silent on limiting rights, leaving legislation and case law the only means of carving out narrow exceptions. This approach is “often regarded as an absolutist protection, which protects freedom of speech even ‘to the detriment of other constitutional values and the disregard of social concerns’”.³

Section 1 of the Charter allows the government to infringe on a person’s rights only in extreme cases, where there is both a pressing and substantial objective, and a proportionality test to ensure the most minimal infringement possible. For example, in R. v. Keegstra, the Supreme Court of Canada determined that a s. 319 of the Criminal Code which prohibits the wilful promotion of hatred against an identifiable group was constitutional.⁴ The case confirmed that the government can infringe on a citizen’s freedom of expression in some cases of hate speech.

At the outset of this blog project, we expressed our interest in questioning how our constitution shapes Canadian society in 2016. Whether the differences between Canada’s and the United States’ approach to limiting constitutional rights has an impact on our respective cultures today is a question that we will undoubtedly explore in a later post. Especially given the upcoming United States presidential elections.

And with that, you are acquainted with our Charter and the kind of society that Canada chooses to be. Stay tuned next week for an in depth look at some of the Charter rights, demonstrating just how far we’ve come in defining our values on paper since the BNA Act.

Sincerely yours,

The Dominion

¹ Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
² Adam M. Dodek, “The Protea and the Maple Leaf: The Impact of the Charter on South African Constitutionalism” (2005) 17 NJCL 353 at 355.
³ "Limitation Clauses", International Institute for Democracy and Electoral Assisstance (November 2014) online: <http://www.idea.int/cbp/loader.cfm?csModule=security/getfile&pageid=66634>
⁴ [1990] 3 SCR 697, 1 CR (4th) 129.

A Halfway House: Quasi-constitutional Documents

Dear Sir or Madam:

 

Today we write to you regarding the existence of quasi-constitutional documents in Canada. We will discuss what it means to be recognized as quasi-constitutional, outline what quasi-constitutional documents exist and briefly discuss how case law has applied these documents. For our 1L readers this post will be a good introduction into the Bill of Rights.

 

In the 1970s, the Supreme Court of Canada began recognizing certain legislative documents as quasi-constitutional.¹ In the simplest terms,  quasi-constitutional means statutes that are “not quite constitutional, but certainly more than ordinary.”² Justice Laskin was the first to utilize the term quasi-constitutional in the 1975 Supreme Court decision Hogan v R. In his decision he described quasi-constitutionality as “a halfway house between a purely common law regime and a constitutional one.”³ The Supreme Court’s definitions highlight how all of these documents are more powerful than any other regular legislation, but are not as powerful as a constitutional document.

 

Now the question becomes what pieces of legislation have been identified as quasi-constitutional. The Supreme Court has determined that several statutory laws exist under this classification, including: the Canadian Bill of Rights Act, Quebec Charter of Human Rights and Freedoms, Official Languages Act, Privacy Act, and provincial human rights acts.⁴ Quasi-constitutional statutes do not follow any special enactment process. Parliament enacts the legislation through the same process as any other piece of legislation, but they differ from ordinary legislation in that courts interpret them similarly to constitutional documents.⁵ Thus, they are granted a “broad and generous” interpretation, and also cannot be quashed by any subsequent conflicting laws.⁶

 

One of the most famous Canadian quasi-constitutional documents is the Canadian Bill of Rights Act. Throughout the 1970s, the judiciary inconsistently interpreted the bill’s power. In the landmark Supreme Court decision R v Drybones, the court was split 6-3 on its interpretation of the Act. The majority held the view that Indian Act was a violation of the Bill of Rights and therefore inoperative.⁷ The majority relied on s. 1(b) to reach this decision, stating, “the word "law" as used in s. 1(b) of the Canadian Bill of Rights is to be construed as meaning "the law of Canada"⁸.  This suggests the majority believed the Bill of Rights was supreme over the Indian Act, although they did not specifically qualify the document as quasi-constitutional at the time.

 

The three dissenting judges’ opinions differed widely from the majority. Justice Cartwright dissenting stated, “the Canadian Bill of Rights directs the Courts to apply the laws of Canada not to refuse to apply them”⁹. Thus, in the same case, a different justice described the Bill of Rights as constraining Parliament’s ability to enact legislation. The majority’s view that the Bill of Rights was supreme to the Indian Act was rejected.

 

The majority of the Bill of Rights cases existed in the 1970s, because eventually the Canadian Charter of Rights and Freedoms became the main avenue for advocating rights claims in the legal system. The Charter is a constitutional document, thus any law infringing these rights cannot stand. Therefore, the Bill of Rights while remaining an important quasi-constitutional document has little value in the legal system today.

 

Your Most Loyal Servants,

The Dominion

 

¹ Vanessa MacDonnell, “A Theory of Quasi-Constitutional Legislation” (2016) 53:2 Osgoode Hall LJ 508 at 509.

² Ontario Human Rights Commission v Simpson-Sears, [1985] 2 SCR 536 at 547, 52 OR (2d) 799.

³ Hogan v R, [1975] 2 SCR 574 at 597, 18 CCC (2d) 65.

⁴ MacDonnell, supra note 1 at 510.

⁵ Ibid at 510.

⁶ Ibid at 510.

⁷ R v Drybones, [1970] SCR 282 at 283, 10 CRNS 334.

⁸ Ibid at 283.

⁹ Ibid at 284.

Judging the Constitution: How Precedents Affect Powers

Dear Sir or Madam,

 

Yesterday, we wrote of constitutional conventions. There was some mention made of Re: Resolution to Amend the Constitution, in which the Supreme Court ruled on how conventions would determine how to amend the soon to be patriated Constitution.¹ This is an example of a reference case. A reference case is when a government goes to the Supreme Court and requests that they rule whether or not a certain policy that they wish to turn into law is constitutional.

 

One of the most important references cases was Re: Secession of Quebec. This case filled an important gap left in the British North America Act in 1867. Once Confederation was established there was no way to deconfederate and allow a province to split off. Given how hard it was to establish Confederation this is actually quite reasonable. However, this meant that as tensions rose between Quebec and the federal government there was no process in place to determine what was an acceptable method for Quebec to leave. The Supreme Court was asked whether unilateral secession was possible, and ruled that secession could only happen after negotiations with the federal government. This was ruled on the grounds that one province leaving Confederation would affect all other provinces, so it would be undemocratic to allow it to do so.²  More importantly, the RSQ highlighted four fundamental tenets of the constitution: Federalism, Democracy, Constitutionalism and the Rule of Law, and Protection of Minority Rights.  While the others are also enumerated in statute, much ink has been spilled with regards to the meaning and application of “Rule of Law”.  To put it succinctly, it establishes a hierarchy of laws, with constitutional law at the top, being supreme over all others.  Additionally, it requires adherence to principles such as predictability, in order to prevent arbitrary uses and abuses of power.

 

Highlighting the importance of federalism, the Supreme Court hears reference cases to decide jurisdiction. One example is  Reference re: Regulation & Control of Aeronautics in Canada, decided by the British Privy Council in 1931 (that was our highest court at the time. To find out when and why that practice ended, make sure you keep reading: Judiciary Week is coming up!). This case established federal, rather than provincial, control over the then-new field of commercial aviation. The Privy council gave two major reasons for their decision. First, section 132 of the British North America Act gives the federal government power over everything related to international treaties. Since 1919, aviation was affected by international treaties, so it made sense for the federal government to regulate it in accordance with those treaties. Secondly, the beginning of s. 91, the “POGG clause”, charges the federal government "to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the classes of Subjects by this Act assigned exclusively to the Legislatures of the provinces". This catch-all means that anything that does not fit into a s. 92 provincial power must fit under federal jurisdiction.³ The “POGG” Power refers to the “Peace, Order, and Good Governance” of Canada.

 

The POGG Power is one of the most contested areas in Constitutional law. Often this comes down to an analysis of the POGG Power, which has been defined in three distinct branches. The original use of the POGG was for emergencies such as war and natural disasters. However, economic crises were added to the definition of “emergency” by the Supreme Court in 1975.⁴ The second, covered by the Aeronautics Reference, is the gap branch. New issues, such as technological innovations which were not discussed in the original BNA Act, are given to the federal government.⁵ The third branch, national concern, applies to anything that the federal government can prove is an issue that affects all Canadians and therefore cannot be decided on a provincial level. A good example of this is environmental legislation. This was declared federal jurisdiction by the Supreme Court in R v Crown Zellerbach, in which a company accused of polluting a waterway disputed the federal law it was charged under.⁶ This case is also interesting because it shows how the Supreme Court can shape constitutional interpretation at any time, even when it is not an official reference case.

 

Even when the text of the Constitution is left unchanged, its interpretation can make a great deal of difference to what governments are or are not allowed to do. There are gaps to fill and vague clauses to define. When Parliament finds themselves unsure as to how to proceed, these roles are taken on by the Supreme Court.

 

Your Humble Servants,

The Dominion

 

 

 

¹Reference re: Resolution to Amend the Constitution, [1981] 1 SCR 753, 1 CRR 59 [Patriation Reference].

²Reference re: Secession of Quebec, [1998] 2 SCR 217, 51 CRR (2d) 1 [RSQ].

³Regulation and Control of Aeronautics, Re, [1932] AC 54, 39 CRC 108 [Aeronautics Reference].

⁴Reference re: Anti-Inflation Act, [1976] 2 SCR 373, 68 DLR (3d) 452.

⁵Aeronautics Reference, supra note 3.

⁶[1988] 1 SCR 401, 49 DLR (4th) 161.

Convenient Conventions: Underlying Rules of Constitutional Interpretation

Dearest Reader,

The BNA Act is comprised  of “black-letter law” (the actual words on the page that prescribe the law) and unwritten principles or customs that supplement the black-letter law.¹ Today’s post reviews the unwritten constitutional conventions that are not technically laws but are mandatory.² These conventions assist the courts in applying the Living Tree Doctrine.

Courts use conventions to interpret laws in keeping with judicial history and the rule of law.³ With the except of Quebec’s civil system, Canada’s common law system is based on the United Kingdom’s, where current judicial decisions look to precedent cases to determine the appropriate application of the law. Commonly used principles of statutory interpretation guide judges to interpret legislation in similar manners as their colleagues and predecessors. This allows the justice system to be somewhat predictable.

Conventions are unwritten principles that guide courts in deciding how to best approach a constitutional question. They are considered part of the subtext of the constitution, similar to the Preamble of any legislation. Neither are actual laws, but give courts context to respond to constitutional questions. Conventions form when a typical custom becomes hardened into a formal practice.⁴ Political conversation, negotiation, and past governmental practice often shape conventions.

Legislation is often written in broad terms to allow courts some flexibility in applying laws.Canada’s constitutional law tends to be written in “broad, vague language that rarely speaks definitively to the cases that come before the courts.⁵ Conventions can assist courts in narrowing a question that arises from a broad law. Alternately, legislation can be written more specifically to ensure a narrow interpretation and application. In such a case, conventions provide  courts with the ability to interpret a law with more flexibility, if necessary.

Many of the BNA Act provisions work in harmony to demonstrate underlying conventions. Early conventions guided the constitution and they continue to guide constitutional interpretation. Here are some important examples:

Constitutional Continuity: the idea that we maintain many of the same constitutional practices that the government of Canada was founded upon, as a former colony of Britain.

• Preamble: “a Constitution similar in Principle to that of the United Kingdom”⁶
• S. 9: the authority of and over Canada continues and is vested in the Queen
• S. 11: establishment of the Queen’s Privy Council, similar to that of the UK
• S. 12: English law continues until it is abolished by Canadian law
• S. 55: the Queen must give approval to all Orders in Council (a.k.a. laws)

Federalism: provinces have authority over some activities (s. 92) but the federal government reserves residual power (s. 91).

• Preamble: respects the provinces’ authority because the four provinces desired to unite to create the federal government
• S. 22: respects regional interests in the federal government senate appointments
• Ss. 91 & 92: enumerated powers of federal and provincial governments
• S. 93: gives the provinces large power over education
• S. 94: assumes that the common law provinces would want to pass uniform laws while Quebec maintains its civil law system
• S. 95: provinces cannot enact laws relating to agriculture and immigration that are repugnant to any federal act

Democracy: the Constitution aims for a free and fair society led by a government responsible to its citizens

• Preamble: “responsible government” requires a majority of the House of Commons to pass laws
• S. 36: a clear majority (50% + 1 vote) rules in the Senate
• S. 37: representation of the Members of Parliament is based on population
• S. 40: regional distribution of electoral districts
• S. 50: each session of parliament can sit for no longer than 5 years
• S. 53: bills relating to appropriation of funds and tax impositions must originate in the House of Commons (not the unelected Senate)

Rights protected by the Constitution

• S. 92(13): property and civil rights
• S. 93(2) minority religious education rights
• S. 133: language rights of both official languages

In Re: Resolution to Amend the Constitution, the Supreme Court of Canada officially determined that conventions are appropriate principles to consider when deciding a question of constitutional law.⁷ The Court considered whether the federal government can amend the Constitution without provincial approval. The federal government could not unilaterally amend the Constitution due to an underlying constitutional convention of “substantial” provincial concurrence that the federal had established in political negotiations.⁸ To determine “substantial” provincial concurrence, the Court relied on past government decisions that required “substantial provincial support” as well as international examples from other Commonwealth countries that did not require unanimity from its provinces.⁹ Ultimately, the Court determined “that it could properly recognize conventional rules … notwithstanding their political aspects”.¹⁰

Importantly, the Court noted that although conventions are appropriate to help determine questions of law and interpretation of constitutional questions, they cannot be enforced by the court in the same way courts can enforce laws.¹¹ Some conventions are in direct conflict with black-letter laws. For example, the BNA Act required the Governor General to give assent to every Order in Council passed by Parliament but convention and political custom limits the Governor General’s power.¹²

 The Patriation Reference case is one of the major Supreme Court decisions that ruled on the use of conventions in constitutional law. There are many more (constitutional law demi-god Peter Hogg reviewed about 65 in 1997¹³). Tomorrow we’ll review a few of the heavy-hitters.

With our most sincere regards,

The Dominion

 

1 Elise Hurtubise-Loranger, “Constitutional Conventions”, Topical Information for Parliamentarians (Library of Parliament, 11 Jul 2006), online: <www.lop.parl.gc.ca/content/lop/TeachersInstitute/ConstitutionalConventions.pdf>.

2 However, “it is generally accepted that the penalty for breaching a constitutional convention is political, not legal” Ibid at 1.

3 Re: Resolution to amend the Constitution, [1981] 1 SCR 753, 1 CRR 59 [Patriation Reference].

4 Ibid at 883.

5 Peter Hogg & Allison Bushnell, “The Charter Dialogue between courts and Legislatures (Or Perhaps the Charter Isn’t Such a Bad Thing after All)”, Osgoode Hall Law Journal 35.1 (1997): 75-124, online: <http://digitalcommons.osgoode.yorku.ca/ohlj/vol35/iss1/2> at 77.

6 Constitution Act, 1867, Preamble at para 1.

7 Ibid.

8 Ibid at 902; Hurtubise-Loranger, supra note 1 at 1.

9 Ibid at 902.

10 Hurtubise-Loranger, supra note 1 at 1.

11 Ibid.

12 Ibid at 2.

13 Hogg, supra note 5.

Drowning in Statutes

To Our Dearest Friends,

By now, you have learned about the Constitution Act, 1867¹ (formerly known as The British North America Act, 1867) and the Constitution Act, 1982.²  

At this point, it may be worth considering that the wisest among us recognize the limitations of their knowledge.  This week, we will explain that the body of Canada's constitutional law consists of far more than just these two documents, as groundbreaking as they undoubtedly were.  Later in the week, we will look at some of the case law, as well as some unwritten principles that have been held to be important parts of Canada's constitution.  Then we will muddy the waters further by exploring what has been called "quasi-constitutional" law.  Today, we start with the black and white, exploring some of the other statutes that add to our body of constitutional law.

While we have been referring to the Constitution Act, 1867 as “The BNA Act” (and will continue to do so), it is important to note that there were a series of later acts also entitled “British North America Act” (all have since been renamed “Constitution Act” due to patriation in 1982).

Here are a few examples of statutes bearing the name British North America Act that came into force after to the 1867 Act, as well as some highlights explaining what they accomplished:

The British North America Act, 1871³ allowed the Dominion of Canada to create new provinces, as well as to alter the boundaries of provinces.

The 1907 Act⁴ laid out the rules for the transfer of funds from the federal government to the provinces in order to support the provincial legislatures.

In 1915, an Act⁵ was passed that was especially important for Western Canada, as it laid out the distribution of Senate seats across the country.  This Act expanded the Senate by 24 seats for the west.

In 1930, a new BNA Act⁶ gave the western provinces rights over natural resources extracted from public land controlled by the federal government.

Statutes were passed in 1960⁷ and 1965⁸ that brought in mandatory retirement ages of 75 for judges of superior courts and senators, respectively.

Of course, there is far more to constitutional statutes than laws that are simply entitled Constitution Act (formerly British North America Act).  Each province that joined Canada after 1867 had its own legislation that enabled its admission.⁹  Additionally, in 1880, there was an Order in Council that admitted all adjacent British Territories into Canada.¹⁰  This Adjacent Territories Order was basically England's way of calling "dibs" on anything that wasn't the United States, with an eye on organizing it appropriately at a later time.

Although much of this legislation appears to be mostly administrative in nature, it is important to remember that, while the constitution is supreme to all other law, both statute and common law, no part of the constitution is deemed to have superiority over any other.  For example, The Canada (Ontario Boundary) Act, 1889¹¹ is held to be just as powerful as the Charter.¹²

While no part of the constitution can be seen as superior to another, we would argue that there are some that are functionally more important than others.  We would be negligent in our duties if we failed to recognize the great importance of another constitutional statute, namely the Statute of Westminster, 1931,¹³ which gave Commonwealth countries a high degree of legislative independence.  While much of our constitutional law was still under the control of Britain, and would be until 1982, we finally had control over our own legislation.¹⁴

 

Most Humbly and Respectfully Submitted,

The Dominion

 

¹ Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.
² Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
³ Constitution Act, 1871 (UK), 34 & 35 Vict, c 28, reprinted in RSC 1985, Appendix II, No 11.
⁴ Constitution Act, 1907 (UK), 7 Edw VII, c 11, reprinted in RSC 1985, Appendix II, No 22.
⁵ Constitution Act, 1915 (UK), 5 & 6 Geo V, c 45, reprinted in RSC 1985, Appendix II, No 23.
⁶ Constitution Act, 1930 (UK), 20 & 21 Geo V, c 26, reprinted in RSC 1985, Appendix II, No 26.
⁷ Constitution Act, 1960 (UK), 9 Eliz II, c 2, reprinted in RSC 1985, Appendix II, No 37.
⁸ Constitution Act, 1965, SC 1965, c 4, part I.
⁹ See e.g. Manitoba Act, 1870, SC 1870, c 3; Alberta Act, SC 1905, c 3; Saskatchewan Act, SC 1905, c 42; Newfoundland Act, 12 & 13 Geo VI, c 22 (UK).
¹⁰ Adjacent Territories Order (UK), 31 July 1880, reprinted in RSC 1985, Appendix II, No 14.
¹¹ Canada (Ontario Boundary) Act, 1889 (UK), 52 & 43 Vict, c 28.
¹² Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
¹³ Statute of Westminster, 1931 (UK), 22 Geo V, c 4, reprinted in RSC 1985, Appendix II, No 27.
¹⁴ Canada Act 1982, 1982, c 11 (UK).

 

 

PMing & GGing: the King-Byng Wing Ding

Dear Madam or Sir,

As we wrote in an earlier post, Canada's eventual independence arose in incremental steps. One of those steps, the 1926 King-Byng Crisis, led to England's increased “hands-off” approach to the Dominion of Canada's governance. Prime Minister William Lyon Mackenzie King caused quite a stir when he ignored Governor General Lord Julian Byng of Vimy's order and bulldogged himself right back into office.

Let's start with a quick primer. The Dominion of Canada's first legislative assembly convened six months after England enacted the BNA Act.¹ However, the executive power over the Dominion was still vested in the Queen.² Officially, the Dominion’s Parliament consisted of the Queen, an Upper House (the Senate), and the House of Commons (the federal legislative assembly comprised of Members of Parliament).³ A federal Governor General and provincial Lieutenants Governor were designated as the Queen’s agents in Canada. These Governors would take advice from the Queen’s Privy Council in Canada, which consisted primarily of the members of the federal Cabinet.⁴

The Queen remained as the head of state, meaning that any legislation passed needed her (or, at a later time, the King's) approval. Therefore, the new Canadian federal legislative bodies had to seek the Queen's “permission” to pass legislation. This was done through Royal Assent, an institution we still have today, where the Governor General signs off on the Queen’s behalf. Citizens (a sign of the times: this meant only male British subjects aged twenty-one or older who owned land in the Dominion)⁵ in Canada could elect representatives to the House of Commons to bring forward legislation.

Although the Governor General was not required to take the Privy Council's advice in Canada, refusal was was unheard of.⁶ In 1926, Governor General Byng attempted to tell Prime Minister King what to do, and King subsequently told him where to go. King led a Liberal minority government from 1921 to 1925, when he lost a vote of non-confidence.⁷ To remain in power, a minority government must conform to a Constitutional Convention, a protocol inherited from the United Kingdom, known as Confidence.⁸ When “the leading party is defeated in the House on a key (“confidence”) question, ... the Government is expected to resign or seek the dissolution of Parliament in order for a general election to be held.”⁹

Instead of choosing either of the above options, King, determined as he was, decided to call a meeting in the House of Commons and asked the members to give him their confidence.¹⁰ He succeeded, but less than a year later, the Conservative Party “dug up a major scandal in King’s Customs department” during the prohibition of alcohol.¹¹ Officials were accepting bribes and looking the other way when rum-runners and bootleggers were crossing the border! The scandal offended the public and politicians who (previously) supported King.¹²

To avoid another non-confidence vote, King quickly asked Byng to dissolve Parliament. King wanted to call an election in the hopes of acquiring a majority government or merely initiating a new Parliament. For the first and last time, a Governor General refused to comply with a Prime Minister’s request.¹³ King resigned, which triggered an election. Despite being known for his gentlemanly demeanour, Byng was so angry that he referred to King as a “scurvy cad”.¹⁴ Except for June through September, 1926, when the Conservatives briefly held power, King returned with a majority until 1930.

The Governor General was officially superior to the Privy Council and the Executive Councils but, in reality, the office did not exercise significant power over the new governing bodies. The 1926 Balfour Report and the 1931 Statute of Westminster significantly reduced the actual power of the Governor General to override decisions made by the Privy Council. Stay tuned for future posts on those and other major Canadian moments toward independence.

With most sincere regards,

The Dominion

 

1 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 19, reprinted in RSC 1985, Appendix II, No 5.

2 Ibid, s 9.

3 Ibid, s 17.

4 Ibid, s 10-12.

5 Ibid, s 41.

6 Matthew B Anderson, “The King/Byng Crisis”, Canadian Autonomy (2011), online: <canadianautonomy.webnode.com/the-king-byng-crisis>.

7 Ibid.

8 Elise Hurtubise-Loranger, “Constitutional Conventions”, Topical Information for Parliamentarians, (Library of Parliament, 11 Jul 2006), online: <www.lop.parl.gc.ca/content/lop/TeachersInstitute/ConstitutionalConventions.pdf>.

9 Anderson, supra note 6.

10 Ibid.

11 Ibid.

12 Jamie Bradburn, “Historicist: King vs Meighen for the Fate of Canada”, Torontoist (27 Sep 2015), online: <torontoist.com/2015/09/historicist-king-vs-meighen-for-the-fate-of-canada>.

13 Ibid.

14 Bradburn, supra note 12.

Patriation: A rarely used, yet exciting word for all!

Dear Sir or Madam,

Today, we write to you regarding a brief history of the events leading to the patriation of the Constitution. For a few of our readers, that sentence probably sounds like a bunch of nonsense. What exactly does it mean to patriate a Constitution? Is that just a big word that a bunch of crafty individuals throw around in a wily attempt to confuse the general population? What does that even mean? Luckily, we here at the Dominion are looking out for our fellow Canadians. Our aim is to give you a brief description of what it means to patriate a document, as well as to describe some of the events that influenced both the Canadian government and the British Crown towards this end.

In 1982, Canada officially patriated its Constitution, which transferred the official control over the document from Britain to the federal and provincial governments.¹ This decision effectively established Canada’s independence, and showcased its desire to be distanced from its colonial past. Up until this point, it may be argued that Canada had remained more of a British colony than a completely self-reliant and independent country.

Along with bringing the document home, the name was also changed to better reflect Canada’s newfound independence from the United Kingdom. One must admit it would seem rather strange to fight for exclusive Canadian control over the Constitution while maintaining the name British North America Act (BNA Act). On April 17, 1982, Queen Elizabeth II travelled to Canada to introduce the newly named Constitution Act.² In addition to the name change, the document itself underwent some changes. One of the most notable changes that happened in 1982 was the addition of the Canadian Charter of Rights and Freedoms.³ The Charter allowed for individual rights and liberties to be protected from intrusion or disregard by governmental bodies. For the first time, Canadian citizens and non-citizens alike had recognized protections in a constitutional document. The Charter addition was a monumental part of Canadian history because it entrenched individual rights into the Constitution, which were missing entirely from the original BNA Act.

People may be under the misguided perception that every province was ecstatic to patriate the Constitution and amend the features of what used to be the BNA Act. This was not the case. Six provinces including: Alberta, Manitoba, Prince Edward Island, Quebec, Newfoundland, and British Columbia, strongly disdained Trudeau’s proposed Constitution and the Charter that would accompany it.⁴ Later, Nova Scotia and Saskatchewan also joined forces with the other six provinces in their fight against the federal government’s proposed constitutional amendments.⁵

Eventually, the question as to whether the federal government even needed provincial support to amend the Constitution made its way to the courts. In one of Canada’s leading constitutional law decisions known as the Patriation Reference, the Supreme Court ruled that while by convention the federal government should have substantial provincial support for constitutional amendments, there is no legal barrier barring them from unilaterally amending it.⁶ This ruling had extreme significance for the Constitution Act of 1982, because it allowed the federal government to pass their new act without the consent of Quebec, who did not authorize it during 1982. So yet again, we here at the Dominion are wondering: have we given the federal government too much power over matters that have a wide impact on the provinces?

 

Your Most Humble and Obedient Servants,

The Dominion

 

 

¹Robert Sheppard, “Patriation of the Constitution” (3 September 2012), online: <www.thecanadianencyclopedia.ca/en/article/patriation-of-the-constitution>.

² Ibid.

³ Ibid.

⁴ Ibid.

⁵ Ibid.

⁶ Re: Resolution to amend the Constitution, [1981] 1 SCR 753 at 908-910, 1981 CanLII 25 (SCC).

The Living Tree

Dear Madam or Sir,

The 1929 case of Edwards v. Canada (Attorney General)¹, also known as the “Persons Case”, was ground-breaking in two ways.  The first was covered by the University of Alberta's Law and Social Media project last year, then called Ms. Suffragette, which dealt with the issue of the right of women  to be selected as senators because of their inherent nature as persons.

As our predecessors have skillfully covered this first aspect of Edwards, we write to you today to highlight the second, which arguably has an even further reach.  This, of course, is the metaphor of the “Living Tree”.²

The major debate in Edwards was whether or not the definition of the word "persons", as seen in s. 24 of the BNA Act³, could be extended to include women; a downright silly question by today's standards.  In all previous interpretations of this section of the Act courts determined that “persons” only applied to landholding men.

The plaintiffs lost at the Supreme Court of Canada.  As we will revisit in November, the SCC was not the final authority in Canadian jurisprudence at the time, and the United Kingdom's Judicial Committee of the Privy Council (UKPC or JCPC are common abbreviations, depending on jurisdiction) heard and ruled on the final appeal.  Lord Chancellor John Sankey, writing the decision, included a sentence in his ruling that would vastly change the legal landscape of Canada.  The sentence reads:

“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”⁴

This pebble in the water of English jurisprudence has caused ripples that are still felt today, and “has been so regularly cited by the Supreme Court that Chief Justice Beverly McLachlin refers to it as the ‘animating premise’ of Canadian constitutional interpretation”.⁵

The Living Tree Doctrine has affected  how courts interpret the BNA Act itself, especially when considering issues of federalism (recall our posts regarding ss. 91 and 92).  In 1930, the year after Edwards and 27 years after Wilbur and Orville Wright's historic first flight at Kitty Hawk, North Carolina, Lord Sankey of the UKPC needed to determine whether regulation of aeronautics was to be given to Parliament or to the provincial Legislatures.⁶  The Privy Council held that various subsections of s. 91 of the BNA Act could be reasonably expanded and interpreted it to cover the area of aeronautics.  These were: s. 91(2), The Regulation of Trade and Commerce; s. 91(5), Postal Service; s. 91(7), Militia, Military and Naval Service, and Defence.

As we will soon discover when we delve into some of the decisions regarding the Canadian Charter of Rights and Freedoms,⁷ the lengths to which this living tree analogy is limited is only by the creativity and reasonability of the judiciary.  Edwards and the Aeronautics Reference were simply the beginning.  We will see that the courts are willing to rule for some rather clever parallels, but do have a tendency to limit these arguments based on sound reasoning.

In future posts, we will uncover, the fact that this doctrine of “The Living Tree” is not the only major unwritten constitutional principle, and is indeed part of the reason why others have emerged⁸.

 

Your Most Loyal Servants,

The Dominion


¹ 1929 UKPC 86, [1930] AC 124 (UKPC) [Edwards].
² Ibid.
³ Constitution Act, 1967 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.
⁴ Edwards, Supra Note 1.
⁵ Scott Reid, "The court case that changed everything", The National Post (22 October 2012), online: <news.nationalpost.com/full-comment/scott-reid-the-court-case-that-changed-everything>.
⁶ Canada (AG) v Ontario (AG), [1931] UKPC 93, [1932] AC 54 (UKPC) [Aeronautics Reference].
⁷ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
⁸ See Reference Re Secession of Quebec, [1988] 2 SCR 217, (1988) 161 DLR (4th) 385.

Distilling Canada: The Story of John A Macdonald

Dear Sir or Madam,

Sir John A. Macdonald is known for two things, being Canada’s first Prime Minister and drinking heavily. However, he was more than both those things. He was instrumental to establishing the British North America Act (BNA Act), and given his life and the time he lived his heavy drinking was quite understandable.

John A. Macdonald watched his beloved wife die for more than ten years. During that time, his son died in infancy and his daughter was born with Hydrocephalus, which caused swelling and brain damage. She spent her entire life extremely disabled, cared for by her father.¹

Macdonald’s drinking was often triggered by stress. In an age when magistrates drinking in court was expected and it was not uncommon for people to consume upwards of 26 litres of alcohol per year, our first Prime Minister was known for his binges. One of his worst binges coincided with the 1872 election, during which he vanished from time to time and often could not remember the day’s events. His drinking habits had real consequences. There were times when bills failed because he was too drunk to defend them, and in 1870 he was almost felled by acute pancreatitis caused by alcohol abuse.²

The most terrifying incident occurred in London in 1866. Macdonald and others had travelled there for final negotiations with the British government to establish the BNA Act. After a particularly wild night, Macdonald fell into a sleep so deep that he did not immediately notice that he and his room had caught fire. Only his thick flannel shirt and the quick actions of fellow delegate George-Ếtienne Cartier saved his life. Also on this trip was a rare bright note in Macdonald’s personal life. He ran into an old friend by the name of Susan Agnes Bernard. By the end of the trip they were married.³ 

His drinking frustrated his contemporaries. The Governor General would write home to London about Macdonald’s benders. Lord Carnarvon, the colonial secretary who  presented the BNA Act to the British parliament, described him as plagued by a “notorious vice”. However, he also called him “the ablest politician in Upper Canada”.⁴ He was still a brilliant and charismatic leader, emerging as a celebrity during the London Conference, recognized in the streets.⁵ He often said that the people preferred him drunk to his enemies sober, and his many election victories and success at forging Confederation proved that sentiment correct.⁶

Sir John A Macdonald was a fascinating figure, with great strength for oratory and great weakness for drink. Despite all his flaws (which could fill many more blog entries), it cannot be denied that his strength of personality was an important factor in the creation of the BNA Act.

Your Humble Servants,

The Dominion

¹ “Sir John A Macdonald”, www.canadahistory.com, online: <www.canadahistory.com/sections/Politics/pm/johnmacdonald.htm> [Macdonald].
² Tristin Hopper, “Everyone knows John A. Macdonald was a bit of a drunk, but it’s largely forgotten how hard he hit the bottle” (January 9, 2015), The National Post, online: <news.nationalpost.com/news/canada/everyone-knows-john-a-macdonald-was-a-bit-of-a-drunk-but-its-largely-forgotten-how-hard-he-hit-the-bottle> [Hopper].
³ The Toronto Dreams Project, “Sir John A. Macdonald, Drunk & In Flames” (January 5, 2015), The Toronto Dreams Project (blog), online: <torontodreamsproject.blogspot.ca/2015/01/sir-john-macdonald-drunk-in-flames.html>.
⁴ Hopper, supra note 2.
⁵ The Toronto Dreams Project, “Sir John A. Macdonald, Drunk & In Flames” (January 5, 2015), The Toronto Dreams Project (blog), online: <torontodreamsproject.blogspot.ca/2015/01/sir-john-macdonald-drunk-in-flames.html>.
⁶ Macdonald, supra note 1.

The Travis Vader Case: What's Next? A Legal Primer

My apologies for interrupting the discussion of the BNA Act one more time, but the Travis Vader case continues to be big news in Alberta. There's been a lot of talk about the judge's error, why it matters, and why the Feds should clean up the Criminal Code. But I wanted to look more closely at what happens next. Will Vader walk? Does there need to be a new trial? The answers might surprise you! Here's my detailed legal primer of where this case goes from here:

 

What do Marlon Brando, Canadian healthcare, oil & gas, and margarine have in common? This and more from section 92 of the BNA Act

Dear Sir or Madam:

Have you ever wondered why you need a new health card if you move to a different province, or why Alberta has no provincial sales tax? Or why you can only get beer in Ontario if it arrives to you on a conveyor belt? The answers to all of these questions are determined by section 92 of the BNA Act.

As we discussed before our Vader verdict detour, provincial governments have the exclusive power to make laws about certain aspects of Canadian society. Section 92 lists which areas the provinces control, and s. 91 provides the corresponding federal list. Some provincial powers include: regulating healthcare, provincial taxes, and trade within the province (alcohol and the beer conveyor fall into this category).

Last week we described the drafting challenges that the provincial delegates encountered in 1864; today, we’ll address the federal/provincial tug of war that has ensued since the BNA Act brought s. 92 into force. Which brings us to Marlon Brando, universal healthcare, oil & gas, and margarine. Though seemingly unrelated, they have all contributed to the enduring tension between sections 91 and 92.

In Nova Scotia (Board of Censors) v McNeil¹, the Nova Scotia Board of Censors banned the Marlon Brando film Last Tango in Paris.² A journalist challenged the legislation that empowered the board, arguing that the moral aspect of censorship was more closely tied to criminal law, a federal power under s. 91. If the provincial government enacts a law that is in the federal government's domain, or vice versa, a court can declare it unconstitutional. The Supreme Court of Canada held that the Board of Censors’ governing act concerned the regulation, supervision, and control of films—a form of private property—and therefore fits into the most expansive provincial power, s. 92(13), property and civil rights.³ This section includes the jurisdiction to legislate over any rights arising from a contract, and to regulate trade and industry within the province.

Health care and nonrenewable resources are two other areas under provincial control, though they are both contentious examples that demonstrate that hard-fought compromise was necessary to create Canada as we know it.

Section 92(7) grants the provinces exclusive authority to pass laws that affect the creation and administration of hospitals. Essentially, the provinces are responsible for delivering healthcare to the majority of Canadians. To create a national healthcare standard and avoid encroaching on provincial powers, the federal government’s role in healthcare is primarily financial. Under its spending power, the federal government can set conditions on disposing taxation revenue to the provinces.⁴ To receive federal funds for their insurance programs, the provinces must conform to the criteria outlined by the federal government in the Canada Health Act.⁵ The evolution of this provincial/federal compromise is complex but riveting, so stay tuned for more in later blogs.

The provincial power to pass laws on non-renewable resources (s. 92A) is another example of contentious compromise on jurisdiction. In 1980 the federal government introduced the National Energy Program, heavily taxing oil & gas revenues and causing outrage in western Canada. When the federal government sought to patriate the constitution in 1982, the resource provinces negotiated s. 92A, creating a rare addition to s. 92 in the BNA Act.

Now you are probably wondering how margarine fits into this equation. Well, we have only scratched the surface of Canada’s 91/92 tension, and for now we will tell you that margarine became entangled with the provinces’ powers over internal trade and the federal government’s powers over criminal law and inter-provincial trade and commerce. That, and more, in a later blog devoted entirely to margarine.  

Until then, your humble and obedient servants,

The Dominion

¹[1978] 2 SCR 662, 84 DLR (3d) 1.
²1972, DVD (MGM, 1973).
³Supra note 1 at 688.
⁴Canada, The Standing Senate Committee on Social Affairs, Science and Technology, Interim Report on the state of health care system in Canada: The Health of Canadians - The Federal Role (O) vol 1 at 7.
⁵RSC 1985, c C-46.

#VaderVerdict and the BNA Act: Canada’s Tradition of Retaining Antiquated Text Still Impacts Us Today

Dear Sir or Madam:

Today we are pausing our historical exploration of the BNA Act to address the decision that is sending shockwaves through the Canadian legal twitterverse and beyond. The Vader trial.

Yesterday, the Hon. Justice Denny Thomas of the Alberta Court of Queen’s Bench delivered the much anticipated verdict in the Vader murder trial, convicting Travis Vader on two counts of second degree murder. In 2010, Lyle and Marie McCann disappeared en route from Alberta to British Columbia; their bodies were never located. Police later discovered the McCanns’ SUV and burned-out motorhome. Investigators found Vader’s DNA in the SUV and evidence that Vader had used the McCanns’ cell phone.

In an unprecedented move for Alberta courts, Thomas J. delivered his judgment on live TV. In his decision, Thomas J. relied on s. 230 of the Criminal Code¹ to convict Vader. Criminal law experts have called this an egregious misapplication of the law.² Though s. 230 is still listed in the Criminal Code, it is not a live provision: the Supreme Court of Canada (SCC) declared the provision to be of no force or effect 25 years ago in the case R. v. Martineau.³

What does it mean practically for a law to be of no force or effect?

The constitutional supremacy provision, Section 52(1) of the Constitution Act, 1982, states that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”⁴ Essentially, the Courts can invalidate any provision that they find inconsistent with the constitution. As a result, a conviction under s. 230 cannot stand.⁵ Vader’s defence lawyers will appeal the conviction to the Alberta Court of Appeal at about the same time that this post goes live.⁶

Now the question is, how does this egregious error of an Alberta superior court in 2016 relate to the BNA Act? In our introductory week, we stated that this project seeks to address how Canada’s formation affects our nation TODAY. Parliament’s consistent failure to repeal invalid legislative provisions in the Criminal Code — such as s. 230 — is one example of fundamental governing texts in Canada retaining antiquated language; the BNA Act is another.

Canada’s independence evolved incrementally, and though it was achieved through a uniquely peaceful process, it was conditional at every stage. The original BNA Act gave Canada dominion status, but England retained legislative control and foreign policy control. The 1931 Statute of Westminster⁷ granted Canada legislative freedom to pass, amend, and repeal laws. The Supreme Court of Canada is now the highest court in Canada, but the British Judicial Committee of the Privy Council was Canada’s top court until 1949. Even the thirty BNA Acts between 1867 and 1975 demonstrate Canada’s tendency to build upon prior legislation rather than draft a new document. Ultimately, the 1982 Constitution Act patriated a document largely drafted and passed by British parliament.

This 150-year history of patchwork legislation adopted without significant Canadian rewrites, demonstrates a curious preoccupation with incremental change and maintaining ties with Britain. Practically, it means that our constitution continues to use anachronistic language, including the term “Indian” to refer to Indigenous peoples.⁸ Continuing to use such an outdated descriptor is offensive and perpetuates colonial attitudes and ignorance.

The failure to rewrite or repeal provisions of the Criminal Code also has negative practical implications for our society today. Despite calls for a complete redrafting of the Criminal Code, so-called “ghost laws”⁹ like s. 230 are still black letter law. Section 159 also still appears in the Criminal Code, criminalizing anal sex. However, the Ontario Court of Appeal declared the provision to be of no force or effect in 1995 because it violates s. 15 of the Charter.¹⁰

Canada has established a tradition of retaining ties to Britain by adopting a policy of incremental change rather than overhauling legislation. However, we continue to deal with the effects of this attitude. The language of the BNA Act continues to perpetuate colonial attitudes, and the failure to repeal provisions in the Criminal Code affects Canadians in the criminal justice system, like the McCann family. We have to move forward and be proactive about keeping our legislation current and applicable for the society that we live in.

Stay tuned for our companion piece to s. 91. Our foray into s. 92 will answer the question “what do Marlon Brando, health care, oil & gas, and margarine have in common?”  Until then, share your thoughts on the Vader trial with us in comments or tweet us as @Dominion_2017.

 

Your humble and obedient servants,

The Dominion.

 

¹RSC, 1985, c-46 [Criminal Code].
²Hamish Stewart, “Ok, so, just to be clear, Peter Sankoff is entirely correct here” (15 Sep 2016), posted on Hamish Stewart, online: Facebook https://www.facebook.com/hamish51
³[1990] 2 SCR 633, 109 AR 321.
⁴Being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
⁵Peter Sankoff, “Travis Vader Conviction”, Storify (15 Sep 2016), online: <https://storify.com/petersankoff/travis-vader-conviction>; R v Townsend, 2010 BCCA 400, 202 BCAC 55 at para 43.
⁶Paige Parsons, “Travis Vader verdict won’t stand, say some legal experts – latest twist in trouble murder case”, Edmonton Journal (15 Sep 2016), online: <edmontonjournal.com/news/crime/travis-vader-verdict-wont-stand-say-some-legal-experts-latest-twist-in-troubled-murder-case>.
⁷1931 (UK), 22 & 23 Geo 5, c 4.
⁸See Indian Act, RSC, 1985, c I-5.
⁹Paula Simons, “Paula Simons: Travis Vader verdict ignites legal firestorm after experts cite error in judge’s decision”, Edmonton Journal (15 Sep 2016), online: <edmontonjournal.com/opinion/columnists/paula-simons-travis-vader-verdict-ignites-legal-firestorm-after-experts-cite-error-in-judges-decision>.
¹⁰R v M(C), 82 OAC 68 (1995), 23 OR (3d) 629.

What is Section 91?

Dear Sir or Madam:

Today we write to you regarding the emergence of section 91 of the British North America Act of 1867 (BNA Act) and the powers that the provision awarded. Canada needed to balance the competing interests of individual provinces with the ideal of creating a strong and united Canada. Canada was not the first country faced with this dilemma, many other sovereign nations, including the United States, encountered the same predicament while trying to write their constitutions. The BNA Act recognized the interests of both parties, concretizing Canada’s federal powers in s. 91, and provincial powers under s. 92. A brief history as to how these provisions arose is detailed below.

A month after the Charlottetown Conference (aforementioned in yesterday’s letter, click here to review yesterday's post), the existing provinces all met at the Quebec Conference to try and hash out a constitutional framework for the impending nation of Canada.¹ This was where federalism, or the division of powers between the federal and provincial governments, became a focal point of discussion. The delegates passed the “72 Resolutions”, which detailed which powers the provinces and the Dominion of Canada would retain should Confederation move forward.²

Certain provinces were interested in maintaining individual autonomy, whereas others were more interested in developing a strong centralized government. The Atlantic Provinces were particularly worried that a strong centralized government would leave their unique island needs improperly governed.³ Mainly due to their size and unique culture, they wanted to ensure they were still accurately represented at the national level. In contrast, John A. McDonald, one of Confederation’s key leaders, advocated for a strong centralized federal government to avoid tension between neighbouring provinces.⁴ This kind of tension led the United States down the road to the American Civil War, an ending McDonald wanted to adamantly avoid.⁵ Ultimately, the BNA Act would account for both provincial and national interests by creating a federalist nation under ss.91-92.

Section 91 granted the federal government several far-reaching powers. Notable powers included: regulation of trade and commerce, military, banking, bankruptcy and insolvency, Indians and Lands reserved for Indians, marriage and divorce, and the criminal law.⁶ The majority of these powers seemed to be a reasonable compromise since they had widespread impact on almost every province in the Dominion.

Other powers granted remained more suspect. Powers including: navigation and shipping, sea coasts and island fisheries, beacons, and ferries between provinces,⁷ seem to relate directly to the interests the Atlantic Provinces were concerned about losing control over. Last time we at the Dominion checked our records; the people of Upper Canada have not done much fishing or shipping in their day. Although a strong central government helped the Dominion establish a sense of unified allegiance, one must wonder if we gave the federal government too much power over practices they cannot accurately understand.

 

Your Humble and Obedient Servants,

The Dominion

 

¹P.B. Waite “Confederation”, (22 September 2013), http://www.thecanadianencyclopedia.ca/en/article/confederation/
²Ibid.
³Ibid.
⁴Ibid.
⁵Ibid.
⁶Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5.
⁷Ibid.

The Compromise of Confederation

Dearest Friends,
Today, we present the sordid tale of the compromises required to bring about the unification that we would eventually see in 1867.

In 1840, Upper and Lower Canada had been joined through the English Parliament's Act of Union¹.  The next year, the new entity was named the “Province of Canada”.  It's creation and stability was a feat in and of itself, as it required the cooperation of English and French speaking entities. Unsurprisingly, the aforementioned stability was mostly due to a deadlock in the provincial parliament.  In order for anything to be passed, there was a “double majority” required, meaning that two delegations, from the western and eastern parts of the province, needed to come to some sort of agreement.  As the westerners were English and the easterners were French, such agreements were rare. As a result, not very much was actually accomplished and the provincial parliament was largely ineffective.

The leader of the Province of Canada, John A. MacDonald, during his brief moments of sobriety (more on this next week), decided that he needed allies.  This led to him joining forces with two other party leaders in order to win enough support from both factions within the provincial parliament to actually pass legislation².  MacDonald realized that this was a temporary solution to a continuing problem, so he did what any self-respecting lawyer would do in such a situation.  He crashed a party.

Imagine a situation in which three mild-mannered roommates gather in the basement suite that they share to play a friendly game of poker, and their upstairs neigbour invites himself over to join them.  The roommates agree, as the neighbour has a really nice set of poker chips.  They soon find out that he is also rather overbearing and has started to change their friendly game into a situation where he is making all of the rules, and they don't really have all that much input into the game.

If you can picture this, you might well be able to imagine what it was like to be a fly on the wall during the Charlottetown Conference in 1864.  Originally, the Atlantic Provinces of Prince Edward Island, Nova Scotia, and New Brunswick had decided to meet in order to discuss their unification³.  John A. MacDonald (more on him next week), leading the Province of Canada at the time, basically crashed the party and started running the show.

The end result was that an entity unifying the Atlantic Provinces with the Province of Canada was struck.  Conditions included, representation by population, which gave a large amount of power to the Province of Canada.  It also gave more power to MacDonald, as the addition of the English-speaking Atlantic Provinces meant that deadlock was no longer an issue when dealing with the French⁴.

One might wonder how MacDonald was able to sell this idea to the Atlantic representatives.  The answer was outright bribery, which the unified country would eventually find out to be another bad habit of MacDonald’s.  He agreed to build a railway⁵, to assume provincial debt, and to dole out revenues of the new entity based on population⁶.

While we might like to imagine that “asking nicely” was all that was required for the Dominion of Canada to be formed, and while this is mostly true when considering Great Britain itself, it is important to recognize the negotiation, compromise, and even bribery required to bring everyone to the table on this side of the pond.  Unfortunately, no minutes of the Charlottetown Conference are known to have survived, so much of what we are left with are accounts of some of the delegates and the results themselves.

 

Respectfully Submitted,
The Dominion

 

¹3 & 4 Victoria c 35.
²Peter B Waite, The Life and Times of Confederation, 1864–1867, (Toronto: University of Toronto Press, 1962) at 42 [Waite].
³Ibid at 56.
⁴JMS Careless, Canada: A Story of Challenge. (Cambridge: Cambridge University Press, 2012) at 233.
⁵Richard Gwyn, John A: The Man Who Made Us, (Random House Digital Inc, 2008) at 307.
⁶Waite, supra note 2 at 81.

Why Create Canada?

Dear Sir or Madam:

 

Today, we write to you of the reason for Canada’s emergence.  As a nation state, Canada’s start was a bit of an oddity. Most states we know of today were created by the collapse of empires, popular local uprisings, or expansionist conquest. The old joke goes that we are the one country who received their independence by asking nicely; and that is not far from the truth. The British North America Act, 1867 (BNA Act) which established the Dominion of Canada was passed by the British Parliament and took effect in 1867. But why exactly did the colonies of Upper and Lower Canada, New Brunswick, and Nova Scotia ask to be combined, and why did Britain grant them their wish?

 

Another longstanding joke with some historical truth is how much we as Canadians define ourselves based on not being the United States. In the early to mid 1800s there was a real fear that small, independant colonies could fall, one by one, to an expansionist United States.¹ In the old Imperial system, Britain invested money into garrisoning troops, both to prevent outside aggression and to keep internal peace.² By the middle of the century, there was less appetite for expansion and the expense that came with it. Britain was tired of war over North America and the northern States were increasingly anti-British; especially after Britain’s choice to stay neutral (with tacit support for the South) in the American Civil War. A unified, self-governing colony without potentially provocative British garrisons was seen as a diplomatic way for Britain to quietly withdraw from North America and leave behind a presence strong enough to block expansion, but not so strong as to make the States feel threatened.³

 

For the settlers in the colonies, economic matters were important in the push for confederation. For the smaller Maritime colonies, the interest was primarily in the creation of a rail link that would increase trade along the St. Lawrence.⁴ For the Colony of Canada (after Confederation, Ontario and Quebec), the interest was to justify expansion into Rupert’s Land (the area surrounding Hudson’s Bay, along with what are the modern prairie provinces and Northern Territories). The creation of a legislative union was championed by Edmund Walker Head, Governor General of British North America in the 1850s, as a way to create a framework to add that land and other western colonies to Canada.⁵

 

While economics and the American threat were important motivators, the influence of cultural matters cannot be denied, especially in the case of the region that would become Quebec. The establishment of Confederation and the division of powers embedded in the BNA Act were influenced by opposing forces such as Joseph-Charles Taché, who favoured a union with other colonies in order to divide the Colony of Canada [Upper and Lower Canada] and protect the French Canadian identity.⁶

 

Ultimately, establishing the Dominion of Canada by the BNA Act was pursued because it made sense for Imperial Britain, and for the colonies. A larger, unified nation can better expand its economy and protect its territory. Additionally, a federated nation can better allow for people to retain their cultural distinctiveness among the Anglo- and Francophone settler populations.

 

Your Humble and Obedient Servants,

The Dominion

 

¹Cole Harris, The Reluctant Land (Vancouver: UBC Press, 2008) at 448.
²Ibid at 455.
³Ibid at 450-1.
⁴Ibid at 450.
⁵Ibid at 449.
⁶Ibid.

Bare BNA Basics

 

Dear Sir or Madam:

 Now that you have met the Law and Social Media team, we will spend a bit of time laying the groundwork for the next eight months of blog posts. And so begins our light history lesson. So, for starters, what is the BNA Act?

The BNA Act is a British parliamentary act that gave Canada the authority to elect representatives who could pass laws in federal and provincial legislative assemblies. These assemblies were similar in structure to Canada’s current federal and provincial legislatures, and were obligated to pass legislation with the final assent of the monarch’s representative in Canada. Therefore, in 1867, the settlers in British North America ceased to be direct subjects of England; they elected local representatives who could be more accountable to voters living in the Dominion. Surprisingly, the BNA Act had no mention of a Prime Minister or Cabinet yet; that came later.

The BNA Act instituted federalism in this new constitution to mitigate the challenges of a central government with diverse regional interests.¹ Federalism is the distribution of powers between the provincial and federal governments with the goal to streamline government agencies’ control of services. This structure aims prevents gaps or overlaps in jurisdiction between the federal and provincial governments.

Finally, and importantly to us as law students, the BNA Act gave Canada a structure for the judicature.²

To be frightfully pedantic there’s not only one BNA Act, there are thirty: The British North America Acts, 1867-1975[2]. And to be tiresomely pedantic (which, usually, I am), the BNA Acts were subsumed in 1982 under the Constitution Act, 1982³, so the BNA Act is but a historical document that is the foundation for, but is not our present, constitution. In 1982, the Canadian and British legislatures patriated our present constitution  with a flourish which overrode the earlier constitution.

[Prime Minister Pierre E. Trudeau's pirouetted flourish upon signing the 1982 Constitution]

In 1867, Britain established the roots of the independent government we recognize in 2016 but independence takes time and concerted efforts. As is often the case in history, events do not occur in a vacuum. Check back tomorrow when we consider why and how the BNA Act was implemented.

 

Your Humble and Obedient Servants,

The Dominion

 

¹“BNA Act 1867”, A Country by Consent, online: <http://www.canadahistoryproject.ca/1867/1867-12-bna-act.html>; see Constitution Acts, 1867-1982, Part VII of the Constitution Act, 1982, S 53, <http://laws-lois.justice.gc.ca/eng/const/page-17.html>.
²Ibid.
³Being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Law and Social Media - Meet the Team - Leri Koornhof

Dear Sir/Madam:

 

There are but four working and schooling days in this week following Labour Day (which was first celebrated in the spring five years after first creating the Dominion). Therefore, this post is the first of two today to introduce all five bloggers in the Law and Social Media course.

We are pleased to introduce the gang’s second oldest member, and the only one born in the 1980s (which were so much better than the 1970s, we’ll have you know, Mr. Welke). Leri Koornhof is a third-year student at the Faculty of Law at the University of Alberta. She is the only blogger who was part of this course last year and is excited to continue the standard of research, writing, and connecting history with interesting modern concepts which may relate to the study of law.

Ms. Koornhof has an educational background in Humanities and her work experience includes writing and editing for a former Minister of Justice Canada, serving tables at both elegant and non-elegant establishments, selling sports cars on the west coast, and tutoring and mentoring children and youth with special needs. Despite her advanced age (of which LSA President Nick Todd often is apt to remind her), Ms. Koornhof has learned to use these novel instruments with microchips and invisible rays to share her thoughts on historical events and how they interact with current legal analyses and social issues.

Contrary to Mr. Todd’s insistence, Ms. Koornhof is not a contemporary of the The Dominion. However, what she lacks in first-hand experience she vows to meet by researching and analyzing interesting facts to keep The Dominion’s readers glued to their brightly lit technology screens. For example, one major change in law from the 19th century to the 20th century was granting women and non-European men the right to vote. Ms. Koornhof’s work with the Ms. Suffragette team in the 2016 Winter semester explored the history of the suffrage movement in Canada. Click here for a #FBF from this Friday to another Friday past (a bit like virtual time travel!) where Ms. Suffragette explored the famous Persons Case of 1929.[1] Until the Judicial Committee of the Privy Council (JCPC)[2] interpreted it differently the BNA Act stood in the way of women being considered legal persons for the purpose of becoming senators. Thus, in the words of the JCPC, the BNA Act was to be seen “a living tree capable of growth and expansion within its natural limits” (tip: if you are just starting law school, you will probably see this doctrine of constitutional law on your exam) so as to accommodate the changing needs of Canadian society.

 

Your Humble Servants,

The Dominion

 

[1] [1930] AC 124, 1929 UKPC 86.

[2] One of the major changes during the evolution of Canada’s independence during the 20th century following the BNA Act was ceasing to appeal court cases to England’s JCPC; instead, we rely on our Supreme Court of Canada for the ultimate interpretation of legislation.

Law and Social Media - Meet the Team - Paul Welke

Dear Sir or Madam,

We write to you today in order to introduce our oldest member, Paul Welke. Paul has the dubious distinction of being our only member to have been born in the 1970s.

Born and raised in Edmonton, he joined the Canadian Forces at 17, and transferred to the Intelligence Branch shortly after, which gave him both the opportunity to do two NATO peacekeeping tours to Bosnia-Herzegovina with the Royal Canadian Air Force, as well as an excuse for taking seven years to complete his Bachelor of Arts.

As is the case with many BA grads, Paul soon found that creativity would be required to secure gainful employment. After leaving the Canadian Forces, he started work as a Communications Technician with a major telecommunications company and earned his Journeyman ticket in that trade.

Eventually, he found the actual work that accompanied a job in the trades to be somewhat objectionable. Along with his family, he made the decision to pursue a career in Law, which had been a dream of his for some time. He commenced his legal education at Thompson Rivers University in Kamloops, BC, but transferred back home after his first year. While he found that Kamloops can be surprisingly picturesque and he was saddened to leave the friends that he found within the students and faculty at TRU Law, Edmonton has always been home, and Paul was excited to be able to complete his legal studies at his alma mater, the University of Alberta. Even more importantly, he was elated to discover that he would not have to spend two more school years away from his wife and son. They, on occasion, share in this joy at having him back home.

Paul has always had a love for criminal law and related constitutional law issues. He is currently seeking an articling position with a firm that shares his passions for access to justice and civil liberties. In addition to this, Paul is a volunteer and supporter of the Criminal Law Project of Student Legal Services of Edmonton, as well as the Founding Director of Innocence Alberta, a project that shared the dedication of their parent organization, Innocence Canada, to identifying, advocating for, and exonerating individuals convicted of a crime that they did not commit and to preventing such injustices in the future through legal education and justice system reform.

Outside of school, Paul enjoys playing board games and using his eight year old son as an excuse to do nerdy things, such as dressing up in matching Marty McFly costumes for Edmonton Expo. He has also kept a blog for the past two years detailing his misadventures as an older law student, which due to its rather liberal use of naughty words, will not be linked here. You are welcome to try to find it on your own. Aside from finishing his studies this year, Paul has resolved to pick up two of his old hobbies by ceasing to neglect his camera and his beer- and wine-making equipment.

 

Any queries for Paul can be sent to TheDominion1867@gmail.com, @Dominion_2017 on Twitter, or /Dominion2017 on Facebook.

 

Your Humble and Obedient Servants,

The Dominion

Law and Social Media - Meet the Team - Alexander Brophy

How much do people really know about The British North America Act, 1867 (BNA Act), the founding document and first Constitution of our country? The answer is often “not very much”. We are generally aware that Canada was established in 1867, and may know the name of the document, but we have little to no understanding of what that document contains and how it has and continues to affect our society. Before studying it in law school, I certainly didn't. This project, leading up to and during the 150th anniversary of this historic document, will hopefully change that for some people.

My name is Alexander Brophy. As a second year law student at the University of Alberta I have chosen to enroll in the Law and Social Media class that will be writing this blog. I'm excited to be a part of this because I understand the value of ensuring that people have legal knowledge. My interests skew towards matters of criminal law and civil rights, where it is so important that everyone in our society have as much knowledge as possible. This project will give me good experience writing about the law in an accessible and hopefully engaging way. I look forward to this opportunity to engage with and educate the public.

The BNA Act might seem dry at first, especially compared the more talked about American Constitution. As a document it is primarily concerned with division of powers between the Federal Government and the Provinces, as well as other structural issues such as courts. Most people really don't have much knowledge about how important such structural issues are in their lives. I plan to put my educational background in History to work this year. A lot of my output will be sharing stories with you. The various provisions of the BNA Act have affected many important events in the last 150 years, and continue to have an effect today. Liquor laws (and soon, marijuana laws), obscenity, the FLQ crisis, wartime emergencies, and even something as banal as whether one can believe that margarine is butter have all related in some way to the BNA Act. I hope that readers will come away feeling that they know a bit more about why things in our country are the way they are.

To receive daily alerts to our blog, email the words "add me" to TheDominion@gmail.com, follow us on Twitter @Dominion_2017, and like our Facebook page /Dominion2017.