Our Constitution: A Study in Complexity

Lists of Canadian symbols always mention the maple leaf, the flag, the heraldic arms, the beaver, some assorted tartans and the Great Seal. Yet, there is no mention of a constitution or the Charter of Rights and Freedoms.

Our constitution is complex. Unlike that of our neighbours to the south, it isn’t even a single document. It’s comprised of Acts of both the Canadian and British Parliaments, centuries of unwritten precedents and our Charter of Rights and Freedoms. In fact, there are over 30 documents, 10 amendments since 1982, and countless unwritten rules that are the Canadian Constitution.

For example, The Quebec Act, 1774, recognized the special conditions in the newly acquired colony enabling Catholics to hold public office and recognizing French civil law alongside British criminal law. These provisions were unique in their day and in them one can see the tentative beginnings of a new society able to live with and respect cultural differences.

“Responsible government” refers to the binding tradition in our unwritten constitution by which the Crown only acts on the advice of an executive council responsible to an elected assembly. It was implemented first in Nova Scotia (1848) and then in the United Canadas (today’s Ontario and Quebec). In the latter case, the Governor General of the day, the Earl of Elgin, upheld this new principle at considerable risk to his personal safety. A mob in the then capital, Montreal, angered by legislation to compensate those who suffered losses in the Rebellion of 1837-38, stoned Lord Elgin’s carriage as he left the meeting of the executive council. He had accepted the advice of his executive and approved this extremely controversial act. The mob burned the Parliament Buildings in Montreal on April 25, 1849. But Elgin and his executive decided not to call out the militia and no lives were lost. The constitutional precedent was established in the most trying circumstances. Canada showed it could manage dissent without calling on military force.

There are other key documents, each with its own story and lively characters, necessary to understand the constitution we have inherited. These include the edict issued by French King Louis XIV in March 1663 that established the Sovereign Council of New France, then embracing a large portion of North America; the British Royal Charter that seven years later granted to the Hudson’s Bay Company the full powers of government over much of northern and western Canada; the Treaty of Paris in 1783, that gave international recognition to the United States following their revolution, establishing the eastern section of our common border; and the treaties signed by the Government with our First Nations that define the relationship between aboriginal peoples and Canadian society.

Oh yes, our constitutional development has indeed been complex.

But of all these, what evidence do we have in Canada? The raindrop-marked royal proclamation of the Constitution Act, 1982 and similar formal proclamations of the new Canadian flag (1965) and the National Anthem (1980) are carefully kept in Library and Archives Canada’s modern preservation centre. But for our constitutional development prior to 1982, Canada holds only facsimile reproductions of original legislation in the United Kingdom. These are careful reproductions, inscribed by hand on parchment, presented to Canada by the British Government in 1982. Beautifully done but not the real thing for a self-respecting nation.

Canada needs its constitution. There are many parts to this. These and the human stories around them can be assembled in a compelling public exhibit. But at its heart must be the British North America Act. This is the closest we have to an historic constitution, setting out as clearly as they could, the vision and hopes of the Fathers of Confederation. It evolves and shifts as each generation wrestles with its circumstances but it is on this document that we Canadians have built our country.

Each generation also needs to understand this story, complex as it may be, in order to continue to develop our constitution and our society. It’s time to complete the patriation of our constitution by placing the British North America Act on public display in Ottawa.

Let’s make this a national project for our 150th birthday in 2017.