By P. E. Bryden

From the time Canada first became a nation in 1867, the federal government in Ottawa and the provincial governments across the country have been engaged in regular and sometimes vicious battles over money. The British North America Act established a federal system for Canada. That meant that control over issues was divided between the two levels of government. The division, in the Canadian case, was not equal. The national government was responsible for big items of national significance, and the provincial governments were responsible for small issues of local significance. Read the full story

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. Read the full story

By Patrick Brennan

After 1841, the colony of Canada comprised Canada West, overwhelmingly English-speaking and Protestant, and Canada East, predominantly French-speaking and Roman Catholic, though with a substantial English-Protestant minority. By the early 1860s, the legislature, which gave Canada East and West equal weight, had become paralyzed and the Canadas were headed for divorce. Canada West longed to secure its economic future by annexing Britain North America’s western territories. And given its larger population, negotiating every measure with the French Canadian minority was also a sore point. For their part, French Canadian politicians opposed change for fear it would weaken their minority position. Out of this hopeless political deadlock emerged the idea of forging a larger British North American union — Confederation. Read the full story

Just last Thursday, we posted an item about a recent conversation happening on the website of our affiliated project, Bring Back the Act.  (You can read that post by clicking here.)  Today brings another exchange on the uniqueness of Canada’s Constitution that we hope is of interest to our Canadian Experience readers; it was sparked by a comment originally posted yesterday on the Bring Back the Act website by Marc-Albert and responded to by Ian Wilson, the project’s Interim Working Group Chair.  (The thread is posted below, but you can also read it on the BringBacktheAct.ca Feedback page) …

I am curious on how this will work. For a constitution to be valid (legal definition) the citizens must vote and accept this constitution. Since this never took place, the “act” cannot be brought to Canada since it does not exist in a legal manner. The only way a proper constitution can ever be brought to Canada is if the citizens actually vote on one. The BNA act was a corporate merger by law, nothing to do with citizens voting.

Today, Ian Wilson responded to Marc-Albert’s comment, indicating some unique differences between Canada’s Constitution and the American Constitution of 1787 …

… Marc-Albert raises an important point regarding the relationship of citizens and our constitution. Canada is a constitutional monarchy, a federal state and a parliamentary democracy. Through centuries of precedent and practice, all sovereign powers:– treaties, legislation, appointments, contracts, honours– are exercised in the name of the Queen of Canada as represented by the Governor General. But such powers are only exercised on the advice of our prime minister and cabinet, responsible to the elected House of Commons. Our Citizenship oath begins with a personal commitment to “be faithful and bear true allegiance to Her Majesty”.  Dr. Michael Jackson, former Director of Protocol in Saskatchewan, has expressed the guiding principle: “The Queen and the Crown are guardians of the constitutional rights of all Canadians. They symbolize the unity of the people beyond political parties, ethnic and cultural backgrounds and regional differences.” One of the key phrases in the BNA Act, “peace, order and good government”, defines the mutual commitment of the Crown and citizens.

Unlike the American Constitution (1787) which begins with the words: “We the people of the United States, in Order to form a more perfect Union…” the Canadian constitution reflects our historical processes of continuity and stability. We did not have violent revolution but chose evolution.

The BNA Act opens with a series of clauses noting that through our elected representatives: “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;”. It proceeds then to affirm that through our Parliamentary processes:

“3. It shall be lawful for the Queen, by and with the Advice of Her Majesty’s Most Honourable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six Months after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick shall form and be One Dominion under the Name of Canada; and on and after that Day those Three Provinces shall form and be One Dominion under that Name accordingly.”

The broad vision of our Fathers of Confederation found expression in one of these explanatory clauses: “And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America.” Through this and over almost a century and a half Canada has grown from sea to sea to sea.

The British North America Act is at the centre of our constitution and has guided the governance and development of Canadian society since 1867. It came into being, not through revolution, but through the gradual evolution of our institutions. It came into being through the request of our elected representatives. It is valid. It is uniquely ours.

If you are interested in this kind of discussion, please let us know and post a comment below or on the BringBacktheAct.ca’s feedback page.

If you haven’t already, you may also be interested in two of Ian’s essays on the Bring Back the Act website:  “MIA: The Canadian Constitution“, and “Our Constitution: A Study in Complexity“.

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.

Our affiliated campaign, Bring Back the Act, is continuing to spark attention, interest and discussion.  (If you haven’t signed the online petition, you can click here to access it.) It’s satisfying to see people speaking up and taking the time to post a comment, telling us not just how they feel about the campaign but how they feel as Canadians.  (You can read some of the commentary by clicking here.)  In fact, this past Wednesday, The Honourable Justice Frank Iacobucci, Retired Justice of the Supreme Court of Canada, weighed in on the campaign and reaffirmed the importance and context of the BNA Act of 1867 and its connection to all Canadians.  We believe his comment is worthy of also posting here for our Canadian Experience readers.

I wish to applaud Lori Abittan and those who put forward the proposal to bring to our country, the original British North America Act of 1867, the foundational constitutional document of Canada. Although the British North America Act begins with references to the desire of the four founding provinces to form our country, the Constitution of Canada is designed for and belongs to the people of Canada. In delineating the nature of our democracy, our Constitution is at the same time both the supreme law of the land and the articulation of our aspirations to live harmoniously and respectfully with one another no matter where we come from and who we are.

Since its beginning, our Constitution has provided the framework to create the civility, decency, and enlightenment for which Canada is admired throughout the world. There is nothing that greater symbolizes the bond that every Canadian has with his or her country than our Constitution. Every Canadian owns it yet every Canadian shares it with all other Canadians.

In 1981-82, Canada in a magnificent moment of our history patriated our Constitution so that its legal home is Canada. I hope we can patriate the document that is the British North America Act so that it can also find its home in Canada. To celebrate that achievement in 2017 could not be a finer 150th birthday present for the people of Canada, including its future generations.

Frank Iacobucci, C.C., Q.C. Retired Justice of the Supreme Court of Canada

Many believe that July 1st signifies the celebration of Canada’s ‘birth certificate’, our original Constitution (aka, The British North America Act). Yet, our own country’s founding document doesn’t seem to have the same cache as what the American Declaration of Independence has to Americans or the Magna Carta has to Britains. Why? Could it be because we don’t have our own original Constitution here in Canada and on public display? Read the full story

By Norman Hillmer

In April 1982, in a public ceremony on Parliament Hill in Ottawa, Queen Elizabeth II and Prime Minister Pierre Trudeau signed the Constitution Act, marking the end of a process that was so unusual that a word had to be invented to describe it. The Canadian constitution had been “patriated” — brought home from Great Britain. Read the full story

By Norman Hillmer

In 1867, when British colonies in North America united into a single country, the British Parliament issued a birth certificate, the British North America (BNA) Act. The BNA Act was a constitution for the new Canada, setting out the basic structure of government and law, and making it explicitly clear that the Canadian parliamentary system would be based on British principles. Great Britain was the mother country, the model on which Canadians expected their new state to grow and develop. Read the full story