It happened today - March 29, 2016
Well, March 29 is a big day for Canada. Or at least it should be, because it was on that date, in 1867, that Queen Victoria gave royal assent to the British North America Act under whose terms the Dominion of Canada came into existence on July 1 of that year. Many people are not happy with it.
I don’t refer here to various widespread forms of dissatisfaction with Canada generally, or even the splendid and euphonious title “Dominion of Canada”, quietly abolished in 1982 by the boringly named “Canada Act” and by a tiny group of MPs who renamed Dominion Day Canada on July 9 1982 despite not even having a quorum. But I digress.
A lot of people feel that having nationhood conferred by a solemn and formal act of the British Parliament is undignified and that we were not “all grown up” as a nation because we were granted liberties already more than 600 years old by a Parliament also more than 600 years old. We would only achieve “maturity” when we chucked all that rubbish and started winging it with things nobody had tried that we hadn’t thought through.
To be sure, looking back, the latter conduct sounds surprisingly like the typical behavior of teenagers rather than adults. And it worked out about as well. Including the fundamental mechanism by which the 1982 Constitution Act became law.
The BNA Act was actually an inspired piece of work in two related ways. First, it was the first ever Parliamentary federation in the world, reflecting a genuinely statesmanlike insight that you could protect the rights of a regional minority, specifically Quebecers, in a parliamentary as well as a congressional system. Second, because it was an act of the British rather than the Canadian legislature, it preserved the essential legal sovereignty of Parliament as it existed in Britain without enabling the Canadian federal Parliament to override those guarantees even with a popular mandate.
Without that twofold inspiration, Quebec would never have joined Confederation and there would have been no Dominion of Canada. And it worked in a key informal way, in that the British Parliament would in fact never refuse to amend the BNA Act provided the request came from duly elected Canadian authorities and did not violate the founding federal compact. All of which is good.
The mechanism used in 1982 is different, far more peculiar, and far harder to justify. Indeed, it is so far from enjoying popular legitimacy based on fundamental clarity and grounding in popular consent that not one Canadian in a thousand even knows how it was done.
The Constitution Act 1982 was recommended to the British Parliament by an Act of the Canadian Parliament, of course. But it is not an Act of the Canadian Parliament. If it were, the Canadian Parliament could amend it.
A version of it was also passed by the British Parliament. But it is not an Act of the British Parliament. If it were, the British Parliament could amend it, at least in principle. So what then is it?
We know perfectly well what the British North America Act was, and why over centuries the system evolved whereby bills adopted by both Houses became law on receiving royal assent. It meant legislators created bills, but through an elaborate formal procedure that prevented slippery and ambitious politicians from pulling a fast one.
If we look hard enough at it, we also realize what the Constitution Act 1982 was, and why the elite cobbled it together behind closed doors through a process that has kept those doors closed to the people ever since. But such a realization does not make us prefer the latter method. (For our documentary exploring these themes and more in detail, and to help us out, please visit www.fixtheconstitution.ca.)
March 29, 1867 was a good day for Canada. And it looks better and better as we contemplate the alternative and live with its consequences.