Defining Moments: The Canadian Constitution
Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
Juges, doyens, distingués invités,
It is my privilege to speak to you today. I am delighted and honoured to deliver the Dickson Lecture, which was named in memory of my predecessor, Chief Justice Brian Dickson. I am pleased to have this opportunity to contribute in some small way to this tradition.
Today, I would like to speak about the Canadian Constitution. There is nothing more fundamental to a nation than the constitution on which it is grounded. The constitution is the framework upon which the nation hangs. It defines the powers of the constituent elements, in our case, the federal government, the provinces and the courts. It also defines the relationship between the individual and the state. State power cannot be exercised, unless it conforms to the constitution. As such, the Constitution is the fundamental guarantee of legality.
But a constitution is more than a contract – more than a mega-contract that divvies up state powers and individual rights. It is the ultimate statement of a nation’s values and expectations. It is a reflection of a nation’s most fundamental values. And as a nation’s values and expectations change over time, so its constitution is applied in a way that reflects those changes. Sometimes the changes are brought about by formal legal amendment – for example the well-known Amendments to the American Constitution, or the 1982 Amendment to the Canadian Constitution by the Canada Act 1982.Footnote 1 Sometimes the changes come about more subtly, when old provisions are applied to new circumstances. Thomas Jefferson, in a 1789 letter to James Madison, perhaps exaggerated when he wrote that every constitution naturally expires at the end of 19 years since “the earth belongs always to the living generation.”Footnote 2 Nevertheless, it is true that each generation in a sense reshapes its national constitution, as it applies it to its own reality and infuses it with its own perspectives.
This is true of the Canadian Constitution. In 2017, not so far off, we will celebrate the 150th anniversary of the Canadian Constitution. As I mused on the up-coming date, it occurred to me that our constitution can be understood as a series of stories that together recount our national odyssey. It is a story of how this country moved from a collection of colonies, to a dominion, to a fully sovereign nation. And it is a story of the gradual emergence of a unique mélange of values that we – and the world – see as distinctly Canadian.
The Canadian constitutional story has many chapters. In the time we have together, I would like to give you some of the flavor of our constitutional story through the lens of five constitutional moments that shaped what Canada is today.
The constitutional moment I have chosen to begin with is, not surprisingly, the country’s Confederation in 1867. The second constitutional moment I have selected may come as a greater surprise – it is the decision of the Judicial Committee of the Privy Council in the Persons Case of 1929. The third constitutional moment centers on the patriation of the Constitution and the adoption of the Canadian Charter of Rights and Freedoms in 1982. The fourth constitutional moment I have chosen is the Supreme Court of Canada’s recognition in 1996 of the constitutional imperative of reconciliation between Aboriginal people and the Crown. My final constitutional moment is about the 1998 Secession Reference in which the Supreme Court provided guidance on secession in a way that respected our Constitution and the fundamental values of Canada as a nation. Other constitutional buffs would doubtless propose other moments. My hope is that the five constitutional moments I have chosen will give you a sense of the Canadian constitutional journey and what Canada stands for as it approaches its 150th birthday.
I. The Confederation of Canada: 1867
Our first constitutional moment was – by definition – the birth of the Canadian Confederation. The canned version of Canadian Confederation is simple. In 1867, a few British-ruled colonies in the north-eastern part of North America got together to form a country with its own Parliament and provincial Legislatures. Well, sort of a country, since ties to England remained firmly fixed both in culture and letter of the law.
The reality, however, was more complicated. Confederation was the result of a need to accommodate three diverse groups that signed the original Confederation pact – the English Canadians in Ontario, the French Canadians in Quebec, and the eastern colonies. English-Canadian politicians from central Canada, admiring the highly centralized form of government in the United Kingdom, and influenced by the influx of United Empire Loyalists who fled the American Civil War, wanted a strong central government, which incidentally, they would control. French Canadian politicians, by contrast, were acutely aware that they would be a minority in the new Parliament of Canada, and therefore insisted that the provincial Legislatures be vested with enough power to safeguard the French language and culture, the civil law, and the Roman Catholic religion in Quebec. And on the seaboard, the politicians wanted to protect their way of life, their privileges and their traditions.
These concerns dictated the constitutional form of the new country of Canada: a federation that gave each colony the powers necessary to protect its interests and culture. Only a federal union could provide each colony with the safeguards needed to preserve the new country’s distinct culture and traditions.
Looking back, we can identify three values that animated the Constitution that was conceived and ultimately subscribed to: democracy; federalism; and respect for minorities and accommodation.
The new country was democratic. The pre-confederation colonies had fought long and hard for the principles of representation by population and responsible government, and were not about to let them go. It was therefore no surprise that the new constitution should be grounded in the basic democratic idea that the people should rule through their elected representatives.
The new country was also federalist. The differences between the colonies – particularly between Quebec and the other colonies – made any other solution untenable. At the heart of the Constitution lay sections 91 and 92, listing the respective federal and provincial powers. Scholars argue that the original intent of the framers of the Constitution – as expressed through the allocation of federal-provincial powers, the federal Parliament’s power to disallow provincial statutes, and the residual federal responsibility over peace, order and good government – was that the federal power should dominate. Be that as it may, over the decades that followed the Judicial Committee of the Privy Council put a distinctly regional stamp on the Constitution and today, cooperative federalism is the dominant norm.
The third value that animated the 1867 Constitution is respect for diversity and minorities. Deep linguistic and religious differences divided the country at its inception. Respect of differences and the equal worth of different cultures were radical ideas in 1867 – an era when nation states defined themselves in terms of uniformity and fought wars to oust diversity. The new nation of Canada, uniting French Catholic and Anglo-Protestant colonies, had no choice but to take a different course and accept diversity. Difference and the right to preserve difference were, quite simply, the price of unity. And continue to be, to this day.
To recap, Canada’s first and defining moment, Confederation, grounded the nation in three values that were to prove lasting – democracy, federalism, and respect for difference and diversity.
II. The Persons Case: 1929
The second constitutional moment I have selected may seem a surprising choice. It did not formally amend the constitution. It was not even a decision of a Canadian court, but one of the Judicial Committee of the Privy Council in London, which continued to be Canada’s final court until appeals to the Committee were finally abolished in 1949. Yet it was a pivotal moment for our nation, and ultimately for its constitutional values. It determined that the new nation was to be a nation of equal citizens – an idea eventually engrafted into the Human Rights Codes of every Province and the Charter of Rights and Freedoms. If Confederationexpressed the equal worth and entitlement to respect of different cultures, the Persons Case expressed the equal worth and entitlement to respect of each individual – a value that was to become central to the nation’s conception of itself.
Prior to 1929, the law did not recognize the right of every person to equal treatment by and under the law. Discrimination on the basis of race, religion and gender was practiced and condoned without much comment. The head tax of 1885 on immigrants from China, restrictions on the liberty and voting rights of First Nations people, tolerance of by-laws that permitted discrimination against Jews and other minorities on the basis of race and religion – all these were part of the Canadian legal reality. Not to mention discrimination against women, the subject of the Persons’ Case. Although few realized it at the time, the Persons Case was the beginning of a rights revolution that would transform Canadian society.
The Persons Case began with one particular and very special person, Emily Murphy, a name synonymous with women’s rights in Canada. In the early 1920’s, Ms. Murphy allowed her name to be put forward to Prime Minister Robert Borden, as a candidate for Canadian Senator. He rejected her on the grounds that women were not “persons” under the British North America Act, 1867Footnote 3 for the purpose of holding public office. Murphy asked four other prominent Albertan women – Irene Marryat Parlby, Nellie Mooney McClung, Louise Crummy McKinney, and Henrietta Muir Edwards – to join her in petitioning the federal government to allow women to hold public office. The government responded by submitting the following question to the Supreme Court of Canada: “Does the word ‘Persons’ in section 24 of the British North America Act, 1867, include female persons?”
The Supreme Court, following the accepted interpretation of similar provisions throughout the Commonwealth, held to a man – and of course they were only men - that the term “qualified persons” in the BNA Act did not include women.Footnote 4 Yes, they said, the role of women in society had changed since 1867, but no, any change to that situation would require explicit legislation.
Mrs. Murphy and her allies refused to take no for an answer. They raised money to appeal to the Judicial Committee of the Privy Council. And there they were successful. The Lord Chancellor, Viscount Sankey, writing for the Committee, reversed the Supreme Court’s decision.Footnote 5 Times had changed, he said, and with them society’s notion of what offices women could hold. The Constitution was a “living tree capable of growth and expansion within its natural limits”, and its interpretation must adapt to new social realities.Footnote 6 One case – two seminal ideas: the equality of all persons, male and female; and the principle that constitutional interpretation must reflect the reality of the times.
To the modern ear, the proposition that women are not persons rings oddly quaint. How could anyone have thought otherwise, we are wont to ask. But at the time, the idea was radical. Newspaper editorials denounced the decision, predicting that it would undermine morality and radically alter Canadian society. In the latter, they were correct. The idea of personal equality had been launched, and Canadian society would forever be altered.
A decade after the Judicial Committee’s decision in the Persons Case, King George VI and His consort, Queen Elizabeth, toured Canada. In Ottawa, one of their tasks was to lay the cornerstone of the Supreme Court of Canada Building. Usually such tasks were performed by the King. However, on this occasion the Queen chose to do so. If you go to the Supreme Court, you can see a grainy film of the event. She said: “Perhaps it is not inappropriate that this task should be performed by a woman, for woman’s position in civil society has depended upon the growth of law.” I like to think that the Queen had in mind the Persons Case when she said those words.
III. The Patriation of the Constitution and the Adoption of the Canadian Charter of Rights and Freedoms: 1982
My third constitutional moment is the patriation of the Constitution and the adoption of the Charter of Rights,on April 17, 1982 –– it was perhaps the defining moment for Canadians of our generation. It signaled true independence from the former colony state quaintly called a “dominion,” and reaffirmed the principles upon which the Confederation of 1867 had been based: democracy, federalism, respect for minorities and accommodation.
Of course, there had been many moments over the years as Canada made its ascent from junior colony to autonomous nation. The journey from colony to independent nation was a long one, marked by many milestones. One thinks of the first Canadian Citizenship Ceremony in the Hall of the Supreme Court of Canada in 1947 — before 1947 we were not Canadian citizens, but British subjects. Another example might be the abolition of appeals to the Judicial Committee of the Privy Council in 1949 – before 1949 the Supreme Court of Canada was just a stop along the way to London. But the Constitution Act, 1982 and the adoption of the Charter of Rights and Freedoms marked the final step in our nation’s coming of age.
By one stroke of the pen, the Queen on that rainy morning of April 17th, 1982, made two enormous changes in Canada’s constitutional life. The first was to bring our Constitution home. Before, only the British Parliament could change Canada’s Constitution. After, the matter was in Canada’s hands. The significance of the moment was clear: henceforward, it would be Canadians and only Canadians who determined their constitutional future. Politically and constitutionally, the patriation of our Constitution marked Canada’s transition into full-fledged adulthood, independent, in control of its destiny and confident of its future.
Hand-in-hand with this new independence came a second change - the Charter. It reflected the kind of society Canadians wished to build for themselves and for generations to come. While patriation symbolized the raw fact of self-determination, the Charter made a statement about the ideals to which Canada should dedicate itself. Every nation needs a basic statement of what it stands for. For Canada, the Charter was that statement. The Charter affirmed in express language the values implicit in the BNA Act of 1867 – our democratic rights and our respect for difference and diversity. It picked up the themes of liberty and equality that had increasingly found place in Canadian law and jurisprudence since the Persons Case of 1929. And, at long last, it provided a constitutional guarantee for the rights of Canada’s Aboriginal people.
The Charter was a made-in-Canada document, the culmination of years of debate and negotiation. The result truly reflects the ethos of Canada.
To be sure, the Charter has its detractors. The transformation of Canada from a Parliamentary democracy in which Parliament had the last word to a constitutional democracy where courts may be called upon to judge the ultimate constitutionality of laws was, from the beginning, unsettling to some. Yet, thirty years on, I think most would say that the patriation of the constitution was vital and that the Charter has stood the test of time. Canadians, polls consistently tell us, take pride in their Charter of Rights and Freedoms. It has, quite simply, become part of the Canadian identity. And it does not hurt that in the years since its adoption the principles enunciated in the Charter have been emulated abroad and the decisions of the Supreme Court interpreting them studied by courts and scholars throughout the world.
IV. Recognition of Aboriginal Rights
This brings me to my fourth constitutional moment: the recognition of aboriginal rights.
Diversity is part of the Canadian fabric. We thrive on it. But it also produces moments of challenge. Managing diversity is the ongoing Canadian project. And in managing it, we define ourselves. One such moment – the ramifications of which we are still living with today – was the recognition in the mid-1990s of the constitutional imperative of achieving reconciliation between Canada’s Aboriginal people and the Crown.
There have been many chapters to this part of Canada’s constitutional story. I want to focus on one particular moment – the Supreme Court of Canada’s decision in Van der Peet.Footnote 7The Court was called on to consider how aboriginal rights should be recognized and affirmed by s. 35(1) of the Constitution Act, 1982. The facts of the case are straightforward: Ms. Van der Peet, a member of the Sto:lo people, was charged with selling 10 salmon contrary to British Columbia’s fishery regulations. She claimed that she had an aboriginal right to sell fish and that the regulations infringed that right under the Constitution.
Van der Peet is a watershed in the interpretation of Aboriginal rights under the Constitution because it recognizes that the purpose of s. 35 is to “provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown.”Footnote 8 In short, it affirmed that the goal is one of fair and just reconciliation between Canada’s aboriginal peoples and Crown’s sovereignty.Footnote 9
In Van der Peet, the Supreme Court recognized that historic practices of indigenous people may give rise to modern economic rights. The following year, in Delgamuukw,the Supreme Court again affirmed the goal of reconciliation, this time in the context of First Nations’ land claims.Footnote 10 And in 2004, the Supreme Court held in Haida Nation that the honour of the Crown required it to consult with First Nations regarding resource development (logging in that case) while land claims are in the course of being resolved.Footnote 11 These are but some of the cases that are paving the road to reconciliation.
Reconciliation reflects the shared history of the people of this country. As John Ralston Saul puts it, “We are a metis civilization”.Footnote 12 “What we are today”, he writes, “has been inspired as much by four centuries of life with the indigenous civilization as by four centuries of immigration. Perhaps more….This influence, this shaping is deep within us.”Footnote 13 We have grown up together and shaped each other in myriad incalculable ways. It is too late to separate. We have no choice but to live together and reconcile our differences.
Reconciliation is based on an ideal of equality and mutual respect, and it eschews all forms of discrimination. In this sense, it takes us back to the early relations between Europeans and First Nations, and our initial historical phase of co‑operation based on mutual need and respect.
Reconciliation recognizes the reality that Canada is made up of people of Aboriginal descent but also people who are descended, not just from different European forbears, but from people from all parts of the globe. Whatever our views about that, it is a reality and we must accept it. As Chief Justice Lamer put it, “Let us face it, we are all here to stay.”Footnote 14 Reconciliation takes a hard look at what Canada is, differences, divisions and all, and says, for the good of us all, we need to make peace and build a better future.
The project of reconciliation, while our best way forward, is not an easy way. It is not a finite task but a process. Reconciliation requires openness of spirit, endurance and great patience. But I believe that it is worth the effort.
V. The Secession Reference: 1998
Finally, I come to my fifth constitutional moment: the Secession Reference to the Supreme Court of Canada following the Quebec referendum on sovereignty.Footnote 15 The backdrop to the Secession Reference is familiar to us all – a Quebec independence movement, referenda in 1980 and 1995, and two failed attempts to amend the Constitution in order to better reflect Quebec’s demands. The result in the last referendum in 1995 could not have been more dramatic: the smallest of majorities – 50.58 per cent – rejected sovereignty-association.
The Canadian Constitution, unlike those of many countries, says nothing on the right of a province to secede from the federation. The near-death experience of the 1995 Referendum raised the question – what would have happened had it succeeded? Could part of the country secede unilaterally? And if so, what would the transition look like?
So the federal government decided to refer the matter to the Supreme Court for its opinion. The Reference asked three questions:
- Under the Constitution of Canada, can [a province secede] from Canada unilaterally?
- Does international law give [a province] the right to [secede] from Canada unilaterally? […]
- In the event of a conflict between domestic and international law on the right of [a province to secede] from Canada unilaterally, which would take precedence in Canada?Footnote 16
In the end, the Supreme Court answered the first two questions in the negative, and found it unnecessary to consider the third.
The significance of the decision on the Secession Reference – and the reason I consider it to be a defining constitutional moment – lies not so much in the short answers the Court gave to the questions put to it, but in the reasons with which it backed them up. Since the Canadian Constitution is silent on the matter of the right to secede and international law offered no clear answers, the Court was obliged to dig deep into the fundamental values and principles upon which the Canadian Constitution is founded to find the answer.
The Court identified four fundamental principles that underlie and “breathe life” into the Constitution: (1) democracy; (2) constitutionalism and the rule of law; (3) respect for minority rights; and (4) federalism.Footnote 17 These principles do not displace the written text of the Constitution, but, as “its lifeblood,”Footnote 18 guide the interpretation of its provisions.
The Court concluded that secession of a province would “alter the governance of Canadian territory in a manner which is … inconsistent with our current constitutional arrangements”Footnote 19 and would therefore require a constitutional amendment. The fundamental principles upon which the country was founded, the Court said, made unilateral secession unconstitutional. To permit automatic secession would do violence to the democratic principle, constitutionalism and the rule of law, federalism, and above all, respect for minority rights within the seceding Province.
But the same principles, the Court went on to say, would preclude outright rejection of clear majority vote to secede, put in response to a clear question. In such an event, the Court opined, the democratic principle, the rule of law and respect for minority interests would require the federal government to sit down and negotiate with the part of the country that desired to go its own way, in an effort to work out a separation in a way that would protect the fundamental principles that underlie our nation.
The Secession Reference was seen by people on both sides of the debate as offering a pragmatic, balanced response to a national crisis. It stands as a defining moment in Canadian history because of its articulation of the values that underlie the Canadian Constitution, and indeed, the country itself. On the national as well as the international scene, scholars and commentators have cited it as an enlightened and useful approach to a problem which is often present in federations.Footnote 20
I have spoken of five defining Canadian constitutional moments: Confederation; the Persons Case; the 1982 Constitution Act which repatriated the Constitution and adopted the Charter of Rights and Freedoms; the Supreme Court of Canada’s affirmation of the need to reconcile Aboriginal interests with Crown sovereignty; and finally the Secession Reference in which the Court provided guidance on secession in a way that respected our Constitution and the fundamental values of Canada as a nation.
When we move from the particular and survey these constitutional moments as a whole, we see cadenced continuity. We see a country that has safely grown from colony to respected world power without violence or rancor. We see a country that sank its roots in the soil of democracy, federalism and respect for difference and the equal value of all its parts. We see a nation that, nourished by these values, has steadily moved to full recognition of the equality of its citizens, regardless of gender, race or creed. We see a country that in the eyes of the world stands for decency, respect for difference and the peaceful resolution of conflict.
This is the story of our Constitution thus far. Will there be more constitutional moments? Absolutely. Should we fear them? I say not. We have every reason to believe that the traditions and values that have served us well over the past 147 years will support us as we move into the future. Our Constitution may be young, but its story is already a powerful one. Of that we can be proud.
- Footnote 1
Canada Act 1982 (U.K.), 1982, c. 11.
- Footnote 2
Thomas Jefferson, Letter To James Madison, (Paris, Sep. 6, 1789).
- Footnote 3
British North America Act, 1867, 30-31 Victoria, c. 3 (U.K.)., subsequently re-named the Constitution Act, 1867.
- Footnote 4
Reference re meaning of the word "Persons" in s. 24 of British North America Act,  S.C.R. 276.
- Footnote 5
Edwards v. A.G. of Canada,  A.C. 124.
- Footnote 6
Ibid., at 136.
- Footnote 7
R. v. Van der Peet,  2 S.C.R. 507.
- Footnote 8
Ibid. at para. 31.
- Footnote 9
Ibid. at para. 50.
- Footnote 10
Delgamuukw v. British Columbia,  3 S.C.R. 1010.
- Footnote 11
Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511, 2004 SCC 73.
- Footnote 12
John Ralston Saul, A Fair Country: Telling Truths About Canada (Toronto: Viking Canada, 2008) at 3.
- Footnote 13
- Footnote 14
Delgamuukw v. British Columbia,  3 S.C.R. 1110 at para. 186.
- Footnote 15
Reference re Secession of Quebec,  2 S.C.R. 217.
- Footnote 16
Ibid., at para. 2.
- Footnote 17
Ibid., at para. 50.
- Footnote 18
Ibid., at para. 51.
- Footnote 19
Ibid., at para. 84.
- Footnote 20
Cristie L. Ford, “In Search of the Qualitative Clear Majority: Democratic Experimentalism and the Quebec Secession Reference” (2001) 39 Alta. L. Rev. 511; Gregory Millard, “The Secession Reference: A National Reconciliation: A Critical Note” (1999) 14 Can. J. L. & Soc. 1; Richard S. Kay, “The Secession Reference and the Limits of Law” (2003) 10 Otago L. Rev. 3 327; “Rosemary Rayfuse, “Reference re Secession of Quebec from Canada: Breaking up Is Hard to Do” (1998) 21:3 University of New South Wales L. J. 834; Peter Oliver, “Canada's Two Solitudes: Constitutional and International Law in Reference re Secession of Quebec” (1998-1999) 6 Int'l J. on Minority & Group Rts. 65.
Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
February 13, 2014
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