An interesting online discussion came up on the website of our affiliated project, Bring Back the Act. If you’re not familiar with this initiative, we are enlisting the help and support of all Canadians to bring back Canada’s original Constitution, The British North America Act of 1867 (The BNA Act), currently in London, England. As
Canada gets ever closer to its 150th birthday in 2017, we hope to bring home one of the recognized symbols of our country in time for that momentous celebration.
BringBacktheAct.ca has attracted incredible support over the last few months; exemplified, in part, by the comments and conversations posted on its feedback page. Yes, we would like to have as many people as possible sign our petition, but we’re just as interested in opening up a dialogue on what Canada and its history means to all of us. To that point, a recent comment posted by a site visitor sparked an interesting discussion. (I’ve posted the thread below, but you can also read it here.) Just last week, Desmond Michael commented …
The original BNA ACT cannot come to Canada for the reason that it was never signed off by The Queen in 1867. An “Official Copy” may be requested from The House of Lords in England showing this unsigned status. Thus the BNA ACT of 1867 never created Canada and Canada has subsequently acted “Ultra Vires”, this is why PM Mulroney and The Canadian Parliament decided it was best not to expose this when he tried bringing The BNA Act to Ottawa.
Ian Wilson, Canada’s former National Archivist and Bring Back the Act’s interim Working Group Chair, responded …
The posting a few days ago by Desmond Michael presents an unusual interpretation of the British North America Act. We clearly need to know more about our constitution; how it came into being and how it has developed with each generation.
A full photographic copy of the BNA Act, 1867 is online at: http://epe.lac-bac.gc.ca/100/200/301/lac-bac/constitution-ef/0511/051103/frame-03gcc_e.html. Page 2 has the handwritten note at the top : “La Reyne le veult” (The Queen wishes it). This was the normal way of recording on the official copy the Queen’s formal approval. The Act was official and provided the basis for future legal interpretation. See for example Senator Gérald-A. Beaudoin’s comments on how the Judicial Committee of the Privy Council used the BNA Act in their consideration of the Persons Case (1929) at: http://epe.lac-bac.gc.ca/100/200/301/lac-bac/persons_case-ef/www.lac-bac.gc.ca/04/0432_e.html.
In 2000, Senator Beaudoin (now deceased) wrote his commentary for the Library and Archives Canada conference on the impact of the Persons case and the “Famous Five” / Les Célèbres cinq — the five Alberta women who, in 1927, contested the interpretation of the word “persons” in the Supreme Court of Canada.
But are there other references in our history where The BNA Act played a role? Stay tuned – in future posts we will link the past to the present and highlight The BNA Act’s relevance to the Canada of today.
To visit our Bring Back the Act website, please click here. If you haven’t already, we hope you consider signing the petition, and let us know what you think. If you want to read more of the project’s feedback or would like to keep up with the conversation, you can subscribe to its feedback RSS feed by clicking here, or why not join the Bring Back the Act Facebook page by clicking here.
In spite of the fact that I question if we can persuade the British Parliament to give us one of their documents, rather than a true copy — and, I understand that such an event has happened once before — and, when I circulated this petition to over 100 persons several months ago, I was criticized by several friends in the legal community, that I should know better than to be suggesting we “Bring Back” something that was never taken from us, or originally ours; I do fully endorse this effort. It would be great to have the original of the Act (or a true copy) placed in Ottawa for all Canadians to see. And, hopefully, the Monarch could be here in 2017 to make the formal presentation.