By P. E. Bryden
Canadians take their constitutions seriously. We celebrate the passage of the first national constitution — the British North America Act — every year on July 1. We constantly debate what it means. And we fight about how to change the constitution almost constantly. It is, perhaps, the one thing that unites Canadians from the 19th century through the 21st century, and from British Columbia to Nunavut to Newfoundland — an almost pathological need to debate, argue, battle and complain about the constitution. It has made us a very strange country indeed. But it has made us a country.
The British North America Act, passed in 1867 by the British Parliament, laid out a system of government in which power was divided between the federal government in Ottawa and the provinces. Technically, no issue would ever fall outside the jurisdiction of one government or the other. The federal government had its list of responsibilities written into the constitution and the provinces had theirs. Anything not on either list, in theory, was the responsibility of the federal government.
Arguments between the two levels of government were common. For about the first 50 years after Confederation, provinces argued that they deserved more responsibilities. Much could be read into the seemingly vague wording of the constitution. Trade and commerce were the responsibility of the federal government, but did that mean it was in charge of distributing liquor licenses? Did that mean that the federal government could regulate insurance premiums? These sorts of questions were first resolved by the Judicial Committee of the Privy Council, the highest British court to which colonial problems could be taken, and since 1949 have been decided by the Supreme Court of Canada. Until the 1930s, the provinces were reasonably successful in winning their cases and provincial powers thus expanded after Confederation.
However, after the Second World War Ottawa adopted a different strategy in the battle over where the line should be drawn between federal and provincial responsibilities. Rather than going to court, the federal government simply flexed its financial muscles. The federal government, which has unlimited power to tax, definitely had more money than the provinces. More money always meant more power, according to this new approach. For example, education is unquestionably a provincial responsibility, but when the federal government gives money to universities, it can dictate the way those universities use that money. This is called the spending power, and it has allowed the federal government to expand its jurisdiction by stealth.
Faced with ever-increasing federal jurisdiction, the provinces have had to adopt a new strategy to protect their constitutional territory. Arguing that the constitution was flawed, that it distributed power and responsibility too unevenly, provincial premiers have pushed for rewriting the constitution.
In order to do that effectively the constitution had to become a Canadian document, rather than a piece of British legislation. It had to be brought back home, so to speak, or patriated. But constitutions are always in need of revision, so the key to patriating it was to decide on a way that Canadians could amend the constitution themselves. Agreeing on how to change the constitution — How much agreement was necessary? How many governments would have to agree? Could any one government be ignored? — proved incredibly difficult. Discussions began in the 1950s. Representatives of federal and provincial governments met hundreds of times, haggling over the drafts of the amending formula. Prime Ministers St. Laurent, Diefenbaker and Pearson were all interested in the constitution, but Pierre Trudeau was obsessed with it after 1968. He worked through at least two rounds of negotiation with the provinces before finally reaching a deal. The process of patriation was not completed until the signing of the Constitution Act, 1982. But that still didn’t solve the problems that the provinces thought existed with the division of powers.
Worse still, Quebec had not signed on to the Constitution Act, 1982. The document still applied to Quebec, but the symbolic significance of the absence of Quebec’s signature was huge. This was something that particularly bothered Brian Mulroney, another prime minister from Quebec, after he came to power in 1984. Back to the negotiation table, this time to agree on changes that would bring Quebec on side. The first attempt, the Meech Lake Accord, failed in 1990; the second attempt, the Charlottetown Accord, failed in 1992. Occasionally, there is talk of trying to reach agreement again, but so far no one has tried.
The constitution still has problems: Quebec hasn’t signed the most recent version, the division of powers still seems unfair to some, and the control over money is particularly uneven. But the constitution will undoubtedly always fall short of the expectations of one level of government or another, and Canadians will continue to debate how, or whether, to fix it. It’s part of being a Canadian.
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