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By Peter C. Oliver. Professor Oliver is Full Professor and Vice Dean of Research in the Common Law Section of the Faculty of Law, University of Ottawa, and editor, along with Patrick Macklem and Nathalie Des Rosiers of The Oxford Handbook of the Canadian Constitution (2017).
It has been 150 years since three of the colonies of what was then British North America came together to form a federation made up of four provinces and a new federal level of government, an event accomplished in law through the enactment by the Westminster Parliament of the British North America Act, 1867 (subsequently renamed Constitution Act, 1867). Three provinces and the northern territories were added over the subsequent decade, two further provinces in 1905, and the tenth province in 1949.
The 100th anniversary of what has come to be known as Confederation was celebrated in 1967 with a World’s Fair in Montreal, specially commissioned songs, landmark buildings and a huge variety of special events. The celebrations then seemed straightforwardly euphoric; and yet all was not entirely well. Even as Pierre Trudeau became Prime Minister in 1968 and began initiatives that would confirm Canada’s two official languages and guarantee rights and freedoms for all Canadians, increasing numbers of Quebecers came to view these efforts as too little too late. An avowedly sovereigntist party, the Parti Québécois, came to power in the province of Quebec in 1976, and by 1980 Quebec was holding a first referendum on independence. In 1981, the Trudeau government and nine provincial governments, other than Quebec, agreed to “patriate” the Constitution by means of a final enactment for Canada by the Westminster Parliament, including a new constitutional amending formula, constitutional recognition for aboriginal and treaty rights (s 35), and a new Charter of Rights an Freedoms: all this and more contained in the Canada Act 1982 (UK) with its key annexe, the Constitution Act, 1982. Sustained and much-debated attempts to bring Quebec back into the constitutional fold failed in 1990 (Meech Lake Accord) and 1992 (Charlottetown Accord), and a second Quebec independence referendum in 1995 very nearly resulted in the break-up of Canada. The ground rules for independence referendums were the subject matter of the now-famous Secession Reference of 1998.
The 150th anniversary celebrations have been more subdued than those that took place 50 years ago. In one sense this is surprising. Canada’s political, economic and constitutional situation is enviable in comparison with, for example, the uncertain aftermath of two recent referendums in the United Kingdom, the political roller-coaster under Trump in the United States, and the current constitutional confusion in Catalonia and Spain. Perhaps the experience in Canada of the past 50 years serves as a reminder that there are big issues that demand our attention even as we celebrate. Not only do unresolved constitutional questions regarding Quebec’s place in the federation persist, but new questions continue to emerge, some of which, like the questions regarding Quebec in 1967, should have been addressed long ago.
The question that presents itself most urgently to Canadians at this moment is that of reconciliation with Indigenous peoples. The Supreme Court of Canada in its jurisprudence under s 35 of the Constitution Act, 1982 has tried to steer a course that favours reconciliation. However, legal doctrine can travel only so far into the collective Canadian psyche. Other events have begun to take us on that journey. For example, in 2015, the Truth and Reconciliation Commission set out its report and recommendations after interviewing 6000 witnesses, most of them survivors of Canada’s residential school system. For over 100 years these schools existed with the express purpose of, in the words of the Final Report, “separating Aboriginal children from their families, in order to minimize and weaken family ties and cultural linkages, and to indoctrinate children into a new culture”. The devastating general nature of this policy objective was exceeded in terms of traumatic effect only by the individual human consequences of that policy. To quote the Final Report once again: “The stories of [the survivors’] experience are sometimes difficult to accept as something that could have happened in a country such as Canada, which has long prided itself on being a bastion of democracy, peace and kindness throughout the world. Children were abused, physically and sexually, and they died in the schools in numbers that would not have been tolerated in any school system anywhere in the country, or in the world.” Clearly all Canadians need to take on board what occurred (and what is still occurring in other forms in terms of inequality, oppression and assimilation), but the most urgent question flowing from that knowledge is, as the Report restates the age-old question: “what do we do about it?” This is probably Canada’s most difficult and pressing political, legal and constitutional challenge over the next 50 years, and failure to deal with it will have implications for all Canadians, in governance, in the economy, in the criminal justice system, in health and education, and beyond.
As it happens, the challenge of reconciliation ties in with some of Canada’s other pressing challenges, old and new. Canada was formed as a federation 150 years ago because no other model would have been acceptable to French Canadians, a minority in British North America but a majority in what was to become Quebec. Federalism comes in many forms, and Canada has 150 years of experience in thinking and re-thinking some of the key issues that may also prove to be relevant in the process of reconciliation: how to protect and promote difference; how to share sovereignty without allowing one side to dominate; how to incorporate asymmetry in helpful ways; and how to understand collective rights. Finding solutions for Indigenous self-government and finding a way forward for reconciliation within Canada will mean drawing on that wealth of ideas, even as it involves taking on board new and potentially challenging, or seemingly incompatible, Indigenous perspectives on those same questions.
Environmental challenges are also part of the post-150 agenda. Given the value of the resource-based Canadian economy, there is considerable fear in many quarters that facing up to the implications of environmental damage and depletion will hurt individual Canadians’ pocketbooks. However, we need only look at the 17 United Nations Sustainable Development Goals to remind ourselves of the full range of issues that are vital to the futures of all peoples, Indigenous and non-Indigenous. Poverty and hunger are certainly key priorities, and so too are clean water, life below water, life on land, affordable and clean energy, decent work and economic growth, for example. Each of the goals is vital, and one cannot be traded off against the other. Achieving these goals will require cooperation with all those with knowledge of and rights on and to the land, forests and waters where development is planned.
In 2017, Canada celebrates the continued vitality of its federal institutions, set out in legal form for the first time 150 years ago. While 1867 is associated with the creation of Canada as a federal entity, we have also been reminded over the course of this year that many other anniversaries compete with 1867 for attention. It has been 35 years since the definitive acquisition of Canada’s constitutional independence and the arrival of s 35 on aboriginal and treaty rights, Part V on constitutional amendment, and the Charter of Rights and Freedoms. It has been 68 years since the Supreme Court of Canada became the ultimate court of appeal for Canada, 86 years since Canada acquired the legal ability to increase its autonomy and eventually to complete its constitutional independence, 409 years since the establishment of the first permanent French settlement in what is now called Canada, and thousands of years since many different Indigenous peoples arrived on this continent and began learning how to live in community in these sometimes challenging northern lands.
This post appears simultaneously in the UKCLA and IACL Blogs.