The birthday of Canada’s Constitution and the British Columbian lesson

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Today marks the 150th anniversary of the date that Canada’s constitution came into effect. While many are saying that today is Canada’s 150t birthday, it is more accurate to say that it is the “150th birthday” of Canada’s written federal constitution. On July 1, 1867, the British North America Act, now named the Constitution Act, 1867, came into force and the fledgling federation known as Canada was created. But Canada and her constitution existed long before that, Even in the political and legal sense of the word, “Canada” was a concept or an entity in one form or another well before 1867. There was the united Province of Canada, Upper and Lower Canada, and, of course, the indigenous nations that spanned the territories of what is now Caanda for long before 1867. But today, I would like to commemorate the 150th anniversary of Canada’s BNA Act (let’s use the former name today for old time’s sake). I would also like to take notice of what transpired recently in British Columbia to underscore that Canada and her constitution are much, much older than 150 years.

The BNA Act opened with the words:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom.

Emphasis added.

With those words, the drafters indicated their desire to create a federal union with a new constitution. From that document can be drawn concepts such as “rule of law”, “federalism”, a measure of “bilingualism”, and a central theme that the constitution be “similar in principle to that of the United Kingdom”. Also, the concept of “constitutionalism” was reiterated and reinforced with the adoption of the BNA Act.

Canada did not follow the lead of her southern neighbour and develop a republican form of governance. Rather, she remained a monarchy, albeit a constitutional monarchy where laws had to be passed through a bicameral federal Parliament or through the provincial legislatures (the requirements for bicameral legislatures for the provinces were eventually removed so that, now, all provinces have only one legislative chamber). Thus, we still speak of the Queen’s Privy Councillors who advise the monarch (or the monarch’s representative). The prime minister is the monarch’s “first minister” or “first counsellor”.

In the last few days, in British Columbia, we saw Canada’s much older constitution at work. Premier Christy Clark, the Lieutenant-Governor’s first minister in British Columbia, lost a vote of “confidence” in the provincial legislature. In other words, the legislature (the parliament of the province where the representatives of the people sent to speak (“parler”) on their behalf) had voted by a majority to defeat the government headed by Premier Clark.

Premier Clark immediately went to visit the Lieutenant-Governor Judith Guichon, the Queen’s representative in British Columbia. Premier Clark advised Lieutentant-Governor Guichon of her defeat, offered her resignation and, at first, sought to give no advice. Lieutenant-Governor insisted that it was Premier Clark’s constitutional obligation as her first minister to provide such advice. Premier Clark then advised that the legislature should be dissolved and an election writ issued. The alternative was, of course, to ask the Leader of the Opposition John Horgan if he could muster the confidence of the legislature. In a display of vice-regal independence, Lieutenant-Governor Guichon did not follow her first minister’s advice and instead called upon Mr. Horgan who advised that he thought that, with the support of the Green Party, he could maintain the confidence of the legislature. Lieutenant-Governor Guichon then asked him to become her next first minister and to form the government of the province.

To me this exercise in parliamentary procedure has been a wonderful example of the depth of Canada’s constitution. Viewed from this perspective, the shift in British Columbia’s government shows how our Canadian constitution reaches back not 150 years but hundreds of years. It shows how even what may be considered to be the largely ceremonial roles of the Governor General of Canada and of the Lieutenant-Governors of the provinces still have incredibly important constitutional responsibilities in the governance of our country.

Canada has evolved and changed much from the British part of North America that it was in 1867. It has added six more provinces and still has three northern territories. It has so much to do yet in the reconciliation of its relationship with the indigenous peoples who have been here for thousands of years before the French and the British ventured on its shores (and in that regard, its constitution has been part of the engine now driving the forces for that reconciliation). But I want to celebrate today not just the fact that its first federal constitution is 150 years old but that its constitution, with all its parts and pieces, written and unwritten, continues to operate and continues to work in a way that is helping Canada develop into what I believe will be a better and more just society. That is the hope and the wish of us all, I am sure.

So “Happy 150th Birthday”, however, you want to view it.

I remain

Constitutionally yours,

Arthur Grant

One thought on “The birthday of Canada’s Constitution and the British Columbian lesson

  1. These past few weeks, the constitutional principles applicable in British Columbia were applied by the political actors exactly as the system is meant to function. Bravo!

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