A Lament for British North America (original) (raw)
Introduction
When, on 26 October 1992, the Canadian people rejected the package of constitutional reforms known as the Charlottetown Accord, they may have created a historical watershed. They may have abandoned a three decade long national fascination with constitutional reform. [1]
This was a most welcome development. It shifted public attention away from the grand abstractions of constitutional law to the mundane, but concrete, realities of the lives of Canadians. Such a shift was desperately needed. One can only wish, idly, that it had happened sooner, for considerable damage had already been done.
While the interminable process of constitutional reform distorted Canada's politics and public discourse, the most significant legal changes spawned by it were the result of the enactment of the Canada Act 1982. In particular, the adoption of the Canadian Charter of Rights and Freedoms transformed our law, our politics, and our culture.[2]
I want to look at an almost unnoticed bit of constitutional reform. This was the renaming of our basic constitutional document, the British North America Act of 1867.1 will set out in detail the change which was made and describe the near universal lack of interest it elicited. My central purpose is to argue that, despite the vast attention which has been lavished on it, our constitution no longer fulfils an essential - perhaps the most essential - function of a constitution. It no longer sets out a unifying national idea. Our constitution gives scant intellectual or emotional direction in the maintenance of a peculiarly_Canadian_ society.
The largest portion of the essay will be devoted to a discussion of why any of this does or should matter. I will attempt to argue that the idea of British North America once provided coherence for the Canadian state. My conclusion will not be that we should return to British North America, but that we are a country without a recognized and accepted national idea and with little prospect of creating a fresh one.
2. The Canada Act 1982
The Canadian constitution [3] is not a popular, not a people's, constitution. It is, in its language and its structure, a lawyers' constitution. Nowhere is this more apparent than in the perversely complicated package of amendments known formally as the Canada Act 1982. This brief statute, enacted by the Parliament of the United Kingdom, has a Schedule "A" attached to it the Canada Act 1982 in French. Then it has a Schedule "B" the Constitution Act, 1982. In fact, there are two Schedules "B". One is the Constitution Act, 1982 in English; the other the same statute in French.
There is, in turn, a Schedule to the Constitution Act, 1982. The function of this Schedule is to give new names to a series of statutes. The first of these is the original British North America Act, 1867. It is given the title Constitution Act, 1867. Now each amendment to the British North America Act had been called a British North America Act, with the year of its passage forming part of its title. Thus, an amending statute passed in 1907 was called the British North America Act, 1907. These amending statutes are also retitled. Each is now to be called Constitution Act followed by the year of its enactment.[4] The amending statute already noted is to be styled the Constitution Act, 1907.
As of 17 April 1982, the day the Canada Act 1982 took effect, Canada ceased to be British North America.
Where did the idea of making this change come from? I have not been able to discover an answer to this question. I turned initially to two persons who had been important in constitutional reform.
Barry L. Strayer, now a judge of the Federal Court of Canada, is generally regarded as having played the leading role in drafting the Canada Act 1982 and its appendices. He could not recall who originated the idea nor did he remember any discussion of it. [5]
We do know that the renaming of the British North America Act made its first official appearance in the Victoria Charter of 1971, [6] a comprehensive proposal by the Government of Canada for constitutional reform. Mark MacGuigan is also a judge of the Federal Court of Canada. In 1972, as a Member of Parliament, he co-chaired the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada. [7]
The Victoria Charter loomed large in the deliberations of the Committee. Mr. Justice MacGuigan could not recall any discussion of the question of abandoning the phrase British North America.[8] There is no specific reference to the issue in the final report of the Committee.
I then turned to published sources. Once upon a time, Canadian legal literature was scanty and superficial. It is no longer scanty. There is now a particularly vast literature about the constitution and, even more particularly, about the Canada Act 1982. This literature addresses the Act's genesis, its adoption, its content and its implications. Now I cannot claim to have read all this literature, but I have read a lot of it, certainly as much as any rational human being could be expected to.
I have come across only one reference to the renaming of the British North America Act. In the Second Edition of his treatise,Constitutional Law of Canada, published in 1985, Peter W. Hogg observed of the new name, "This change seems to me to smack of rewriting history ...". [9] Apart from this incisive observation, none of the many commentators on our process of constitutional reform, so far as I can discover, has directly addressed the purpose or significance of our jettisoning of British North America. [10]
So why was the change made? My surmise is that it was an attempt to make the constitution appear "more Canadian". [11] The parliamentary committee of 1972 did allude to this general point. It opined in its report:
The measure of the inadequacy of the British North America Act is that it does not serve Canadians fully as either a mirror of ourselves or as an inspirational ideal. [12]
The implicit suggestion is that the very phrase "British North America" had become a relic. This suggestion is strengthened by the fact that the Schedule to the Constitution Act, 1982 which actually effected the change is given the title "Modernization of the Constitution". Presumably no self- respecting "modern" constitution would dare call itself the British North America Act.
Was this the case? To answer this question we must do two things. We must attempt, first, to discover the meaning of British North America. Then we must assess whether this was an idea which could claim by 1982 to exert any force in Canada.
3. The Meaning of British North America
The sense of being British North America once gave coherence to the Canadian state. It gave Canadians an understanding of why Canada existed.
What was British North America? What was the content of the idea?
Like all significant ideas, this one was made up of contradictory and inconsistent elements.
In part, British North America was a narrow expression of our colonial, settler origins. [13] The phrase bespoke the outpost of empire, "Ready, Aye, Ready" sense of being a bit of the Mother Country which simply happened to be located across the Atlantic Ocean. This was a romantic, defensive understanding of the meaning of British North America. It was alienating to non-British Canadians and it limited our ability to develop a sense of ourselves as an autonomous state. If this had been all that British North America meant, its jettisoning would, by 1982, have been long overdue.
But British North America also expressed another more positive and more inclusive notion of being Canadian. It was not so much a statement of our "Britishness" as of our uniqueness. This had primarily to do with the shared understanding that we stood for a different way of doing things in North America. We were not, emphatically not, like our neighbours. And we knew why. Our society was not based on "life, liberty and the pursuit of happiness"; we were not founded on the celebration of individual freedom. We had chosen, rather, "peace, order and good government". The individual was to be subordinated to the collective. Life was not simply to be about the acquisition of wealth by individuals. We would also have obligations towards each other.
These notions about the distinctiveness of British North America remained central throughout much of our history. George Grant, appropriately enough, summed this up in an introduction which he wrote for the 1970 edition of Lament for a Nation.
Our hope lay in the belief that on the northern half of this continent we could build a community which had a stronger sense of the common good and of public order than was possible under the individualism of the American capitalist dream.[14]
The sense of having avoided the crass individualism of American life was also important to the way British North America understood itself: Enoch Padolsky noted how Frederick Philip Grove, in an influential essay written in 1929, described the United States as:
...dominated by a god called "Standard of Living", ruled by a law "which bows before economic obesity", with goals of "sensual enjoyment and the so-called conquest of nature", and dominated by a "new... plutocracy for the enslavement of the mind and the spirit. [15]
The idea that British North America was a "community with a character and experience of its own " [16] had acquired form and some vigour by the middle of the 19th century. Canadians understood that while they were part of North America, they were, in important ways, different from Americans. They took pride in having avoided the excesses, the republican licentiousness, which they saw as characterising the society of the United States. Chief amongst those excesses was slavery. British North America was, in its own eyes, a better and freer society.
It was understood that British North America was not "British" in a narrow ethnic sense, but that it had two constituent elements - English-speaking Canada and French-speaking Canada. The two elements had voluntarily come together in a single state which expressed both their duality and their common determination not to be American. English-speaking Canadians were not necessarily English or British; they simply spoke English.
Our democracy was also rooted in the notion of British North America. Our sense was not the American one which saw democracy as the reconciliation of an infinite variety of hostile and competing interests. In the Canadian conception the source of democratic government was the Crown. The Crown in British North America was to function as the instrument of the people which ensured the working of their democratic institutions. The Crown was also the guarantor of the French language and the distinctive culture of Onebec. Democracy was for us an organic expression of our unity. [17]
The idea of British North America self-evidently underlay the impetus towards Confederation. [18] It was a motivating factor in our expansion to the West. [19] And it would seem that by the end of the First World War the idea was firmly fixed in the Canadian psyche. Grant expressed this with his accustomed eloquence.
Growing up in Ontario the generation of the 192Os took it for granted that they belonged to a nation. The character of the country was self-evident. To say it was British was not to deny it was North American. To be a Canadian was to be a unique species of North American. [20]
Yet the extraordinary fact is that, insofar as I can determine, not one public voice was raised in opposition to the end of British North America.
Two people one might have expected to speak out were Eugene Forsey and Frank Scott. A long- time associate of his told me that Forsey was privately unhappy about the change, but did not say anything because he concluded it would be futile to make a fuss. [21] Forsey was the author of an excellent primer on Canadian government and politics, How Canadians Govern Themselves. [22] In the first edition, published in 1979, he discussed the British North America Act and set out its basic structure. [23] For the 1982 second edition he referred to "... the British North America Act, 1867 (now renamed the Constitution Act, 1867)" [24], but made no comment on the change. As for Frank Scott, he did for a time act as an advisor to Pierre Trudeau during the process of constitutional change which led to the Canada Act 1982. A recent and full biography of Scott discusses this role, but makes no reference to Scott having had any reservations about abandoning British North America. [25]
4. The Decline of British North America
The simple and incontrovertible fact is that by 1982 British North America was an idea which no longer moved Canadians, indeed it seems it was an idea which was barely intelligible to Canadians.
It is very difficult to document the gradual, but inexorable, demise of an idea. There are no mileposts to point to. One day Canada was British North America and the next it was not.
But some enlightenment can be gleaned by looking at the decline of another bit of terminology which was very much tied up with British North America. This is the word "Dominion".
The word is found, appropriately enough, in the original British North America Act. The Preamble speaks of "One Dominion under the Crown", while section 3 provides for the creation of "One Dominion under the Name of Canada". Strictly speaking, the official name of the new country was, simply, "Canada", but usage sanctioned "Dominion of Canada". [26]
The word "Dominion" appeared in the titles of many national institutions. The national government was referred to as the "Dominion government", especially in order to distinguish it from provincial governments. And Canada's national day was called "Dominion Day".
Slowly the term began to disappear. In the 1930s the government of Canada began to use "Canada" instead of "Dominion of Canada". "Dominion" was removed from the names of national institutions and gradually expunged from the statute book. [27] Both writers on constitutional law and our judges have long since abandoned "Dominion" and now use the phrase "federal government". [28] And in 1982 "Dominion Day" was renamed "Canada Day" . [29]
I presume that "Dominion" was consigned to the same fate as "British North America" for the same reason - it was thought to connote a colonial, less than fully independent status. Particularly in the case of "Dominion" this seems odd, for there was a time when the phrase "Dominion status" was a constitutional terms of art used to signify an independent, self-governing Commonwealth state. This usage, in a formal sense, dates back to the Statute of Westminster of 1931.
The decline in the fortunes of "British North America" went hand in hand with the waning in the minds of Canadians of the sense of their country's uniqueness. In a recent article William Christian addressed the question why George Grant wrote Lament For a Nation when he did. Christian's answer was straightforward. It was that Grant had come to "... see clearly that the dream of sustaining in Canada any sort of alternative to American civilization was irrevocably extinguished".[30] The blame, Grant saw clearly, lay with Canadians themselves and their "having come to accept the attractiveness of modernity". [31] Or, as, in slightly different fashion, another commentator on Grant put it:
Canada has ceased to be a nation, not because its political existence has ended, but because its distinctive intention has ceased to be important. [32]
For Grant the end of the Canadian dream came in 1963 when a Canadian government allowed the United States to place nuclear weapons on Canadian soil. Others say the dream died with the Ogdensburg Agreement of 1940 and Canada's acceptance of continental defence under U.S. leadership. [33] The point, however, is not to quibble over the precise date at which one could state with certainty that both the reality and the hope of an independent Canada had ended, but simply to note the existence of an ongoing and seemingly unstoppable process.
Since, by 1982, Canadians no longer understood the meaning of British North America, it probably made some sense to abolish it and, at the same time, bring our constitution into closer conformity with that of the U.S. [34]
The end of British North America was also, as Peter Hogg seems to have been the only commentator to notice, [35] a milestone in the abolition, or rewriting, of our history. This has had profound effects in including Canadians to abandon the sense of their own uniqueness. The preferred style in universities and secondary schools is either to deny that Canada has a history or to persuade students that such history as we might have is something to be ashamed of, that our past is fundamentally flawed.[36] This perspective is starkly set out in a document called Anti-racism and Ethnocultural Equity in School Boards: Guidelines for Policy Development and Implementation issued by the Ontario Ministry of Education in 1993.
Much of the traditional curriculum focuses on the values, experiences, achievements and perspectives of white-European members of Canadian society and excludes or distorts those of other groups in Canada and throughout the world. [37]
The answer to this is obvious. School boards are required to "develop or modify curriculum to reflect a culturally and racially diverse society". [38] They are, in effect, directed actively to rewrite our past.
5. Does It Make Any Difference?
In order to answer this question, we must address an even more fundamental question. Why do states exist?
The simple answer, looking at many contemporary states, is that state boundaries are an expression of ethnic or linguistic or cultural bound-aries. France has the shape it does because it encompasses human beings who view themselves as French. Of course, not every person living with-in the boundaries of France regards himself or herself as French, nor does every such person live in France. But the fundamental raison d'etre of the French state is that it is the home of the French people.
But Canada, obviously, is neither ethnically nor linguistically nor culturally homogeneous. How do such states continue to exist?
States which are not ethnically homogeneous or which contain within their boundaries a number of discrete ethnic groups face profound difficulties. The disintegration of Yugoslavia and the apparently intractable ethnic warfare in Sri Lanka are but two examples amongst dozens which can be seen today in every part of the globe.
How then are multi-ethnic states to survive and even prosper? The answer is not easy to find, since there are in fact few examples of multi-ethnic states which have been successful over the long term.
An obvious possibility is for one ethnic group to dominate and oppress all the others. This is not a prescription for long-term stability, as can be seen in the recent history of the former U.S.S.R. and the Republic of South Africa. Another possibility is a series of alliances amongst the ostensible leaders of the various ethnic groups. In order to work, this approach generally demands the exclusion of the mass of the people from active participation in politics.
The question with which I began this section must be rephrased once again. How can a democratic, multiethnic state be organised?
It is possible that the only such state which has succeeded is the United States of America. What is its secret?
Obviously, generally high levels of economic development and prosperity have played their part. Nonetheless, I would argue that the success of the U.S.A. as a multi-ethnic democracy is very much a function of the power of the ideological notion which has lain at the heart of its constitution, its politics and its culture. That notion is individual freedom.
Individual freedom and the ongoing commitment to it of generations of Americans have created the ideological cement which has allowed the U.S.A. to continue as a democratic, multiethnic state. I make no argument either for or against individual freedom as an idea, nor do I express any opinion as to its goodness or essential meaning. My point is simply that the ideological raison d'etre for the U.S.A. has been and continues to be individual freedom.
Why, then, is there a Canadian state? Why does Canada exist? Why should it continue?
Canada is not ethnically homogeneous. There is no single Canadian language. The ethnic justification for the existence of a Canadian state is not available. Is there an idea which gives a foundation and a direction to the Canadian state?
The idea of British North America once provided a purpose and a justification for the Canadian state. That idea has now disappeared. A fresh idea which could take its place has not appeared. And with no such unifying idea it is hard to imagine a future for the Canadian state, or at least for a multi- ethnic, democratic Canadian state.
Eugene Forsey clearly understood both the power and the importance of the idea which gave coherence to the Canadian state. Referring to the Crown, he said:
Without it, there can be no Canada, at best, just a blurred, faint, unmeaning carbon copy of some other country; a thing without character and without honour. [39]
But, it might be objected, other ideas have come along. What about "multiculturalism"? Or, what about the idea of individual rights as embodied in the Charter?
It is difficult to take multiculturalism seriously as an idea. Multiculturalism was invented a quarter of a century ago as an expedient by a federal Liberal Party desperate to win votes in Toronto.
As an idea to inform and unify a state it is laughably inadequate. Multiculturalism announces that Canada, or at least the formally English-speaking parts of it, has no culture. This is not much of an ideology.
Multiculturalism does little more than affirm our commitment to moral and intellectual relativism. That is, it affirms that we stand for precisely nothing. This was made evident in the Preamble to the failed Charlottetown Accord, the so-called "Canada Clause". [40] It is, of course, interesting that the would-be constitution-makers saw a need for the statement of a national idea, but the result was so flaccid as to be utterly worthless for the purpose. The Canada Clause would have told Canadians and the world that we are firmly on the side of goodness and are swell people. The Canada Clause was precisely what one would expect in the constitution of the nation which is the world leader in synchronised swimming.
Many people have argued that the Canadian Charter of Rights and Freedoms, which, it will be recalled, became part of our Constitution at the same time as we ceased to be British North America, has supplied us with a new idea of what we stand for as a state. Now, to a considerable extent, at least outside Quebec, this is true. But that is the problem.
The Charter is, culturally, historically, and ideologically, an American document. It exalts individual freedom and its protection through legally enforceable rights. The Charter's enthusiastic acceptance by Canadians bespeaks the degree to which we can now understand our-selves only through American ideas. It symbolises our loss of any uniquely Canadian sense of ourselves. To the extent that the Charter does provide a unifying national idea, it is an idea that trumpets the abandonment of our autonomy and our uniqueness.
There is no longer a Canadian idea which can give coherence to the Canadian state. There is, then, no obvious basis upon which it may survive as a multi-ethnic democracy.
This assertion will probably be regarded as contentious in what is now more or less officially referred to, not as English-speaking Canada, but as "the rest of Canada", but it would be seen as self- evidently true by most people in Quebec. A substantial majority of Quebecois now see no raison d'etre for the current Canadian state. No amount of constitutional tinkering will change this.
The estrangement lies much deeper. British North America was, I have suggested, the union of two elements - English-speaking Canada and French-speaking Canada. But one element, English-speaking Canada, has largely disappeared. The reaction of the French-speaking element is to argue that there is simply nothing left to be united with, that with one partner dead there can no longer be a union.
Canada is not merely in a deep economic crisis. We are in an equally serious intellectual crisis. We are without a sense of why we exist. This is overwhelmingly apparent in the ease with which we accepted the integration of our economy with that of the U.S.A. and the silence with which the ongoing destruction of our cultural and political institutions is greeted.
6. Conclusion
I want to conclude where I began, with the Charlottetown Accord of 1992. That document manifests the two central themes of this essay -a people consciously abolishing their own history and, as a result, being left with a constitution which provides them scant intellectual or emotional direction.
The period from mid-1990, when the Meech Lake Accord failed to be formally implemented, to the autumn of 1992, when voters rejected the Charlottetown Accord, was one of national obsession with constitutional reform. There were Parliamentary committees and legislative committees in most provinces. There were citizens' forums and a series of national conferences. There were task forces and study groups. There were articles and reports and incessant lectures on television and radio.
Throughout the process we appeared to have convinced ourselves that making a constitution was the same as going to the supermarket. We seemed to believe that nothing more was involved than choosing from an unlimited range of proffered possibilities. We acted like bedazzled consumers, filling our constitutional cart with an incoherent jumble of questionable products.
The result, a result a majority of Canadians had the good sense to reject, would have been a constitution having no connection, no resonance whatsoever, with our history, our traditions and our culture. Had the Charlottetown Accord been accepted we would have taken the final step in a process in which the elimination of British North America was a significant watershed.
It would be foolish to suggest that we return to British North America. And I would not wish for an instant to recommend new attempts at constitutional reform. It is enough to draw attention to what we have lost.
*I wish to thank Jack Granatstein, Robert Hawkins, George Kerr and Rande Kostal for their comments on earlier draft.
1. The process can be said to have begun with a meeting of Attorneys-General held in Ottawa on 6 and 7 October 1960. See Anne F. Bayefsky, Canada's Constitution Act, 1982 and Amendments: A Documentary History. Toronto, 1989, vol. 1, p.1. 2. The literature on the Charter is voluminous and, by and large, credulous and uncritical. The worst book, in my opinion, is Ian Greene, The Charter of Rights, Toronto, 1989. The only ones worth reading are Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada, Toronto, 1989 and Rainer Knopff and F.L. Morton, Charter Politics, Scarborough, 1992. For my own views, see "The Charter and the Crisis in Canada" in David F. Smith, Peter MacKinnon and John C. Courtney, After Meech Lake: Lessons For the Future, Saskatoon, 1991, p.121.
3. For a discussion of what is meant by this phrase, see Peter W. Hogg, Constitutional Law of Canada, 3rd ed., Scarborough, 1992, pp.3-26.
4. This statement is not absolutely correct. A few of the statutes which: had amended the British North America Act, 1867 were repealed and the British North America Act, 1949 was renamed the Newfoundland Act.
5. Telephone conversation with Mr. Justice Strayer, 29 March 1993.
6. For the text, see Bayefsky, op. cit., pp.214-222.
7. The text of the Committee's Report is in ibid., pp.224-311.
8. Telephone conversation with Mr. Justice MacGuigan, 19 April 1993.
9. Scarborough, 1985, p.5. This observation has survived into the Third Edition of the book. See Constitutional Law of Canada, op. Cit., 1992, p.8.
10. I must confess that, at the time, I did not grasp the significance of what was being done. Indeed, I described the Schedule to the Constitution Act, 1982 as "housekeeping provisions". See "Introduction", (1984) 2 Socialist Studies, p.4 at 6.
11. Mr. Justice Strayer used this phrase. See notes 5.
12. Bayefsky, op. cit., p. 230.
13. For a forceful elaboration of this point of view, see John Conway, "Politics, Culture and the Writing of Constitutions" in Harvey L. Dyck and H. Peter Crosby, eds., Empire and Nations: Essays in Honour of Frederic H. Soward, Toronto, 1969, p.3.
14. Ottawa, 1970, p. x. See the interesting discussion in H.D. Forbes, "The Political Thought of George Grant", (1991)26 Journal of Canadian Studies, no. 3, p.46.
15. "Grove's 'Nationhood' and the European Immigrant" in Ibid., (1987) 22, no.1, p.32 at 41.
16. This phrase as well as the ideas in this paragraph come froni Allan Smith, "Old Ontario and the Emergence of a National Frame of Mind" in F. H. Armstrong, H. A. Stevenson mid J. D. Wilson, eds., Aspects of Nineteenth Century Ontario: Essays Presented to James J. Talman, Toronto, 1974, p. 194.
17. My understanding of British North America is, I confess, profoundly Tory. That is hardly surprising since British North America is, itself, a uniquely Tory idea. My understanding is drawn from the writings of George Grant, Eugene Forsey and Frank Scott and much influenced by Charles Taylor. The unique role of the Crown is discussed in Eugene Forsey, Freedom and Order, Toronto, 1974, pp.21-72. For a different perspective on Canadian Toryism, see Peter J. Smith, "The Ideological Origins of Canadian Confederation", (1987) 20 Canadian Journal of Political Science, no. 1 p. 3, and "Civic Humanism vs. Liberalism Fitting the Loyalists in", (1991) 26 journal of Canadian Studies, , no. 2, p. 25.
18. John A. Macdonald's speech of 6 February 1865 to the legislature of the Province of Canada in which lie urged adoption of the proposals for Confederation is a classic text for understanding the idea of British North America. He referred, in several places, to "the best interests and present and future prosperity of British North America". He spoke of "people possessed of skill, education and experience in the ways of the New World" and "ardent attachment for this, our common country". He warned of "the defects which time and events hare shown to exist in the American Constitution" and urged his compatriots to choose instead "British laws, British connection, and British freedom" as well as ensuring that "the rights of minorities are safeguarded". Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, Quebec, 1865, pp. 25-45.
19. See Doug Owram, Promise of Eden: The Canadian Expansionist Movement and the Idea of the West, 1856-1900, Toronto, 1980.
20. Lament for a Nation, Toronto, 1965, p.3.
21. Telephone conversation with Graham Eglington, 20 May 1993.
22. 1st. ed., Ottawa, 1979; 2nd. ed., Ottawa, 1982.
23. Ibid.,lst.ed.,pp.10-72.
24. Ibid., 2nd. ed., p.9.
25. Sandra Djwa, The Politics of the Imagination: A Life of F.R. Scott, Toronto, 1987, pp. 429-437. Scott believed that the R.N.A. Act implied, by its nature, a degree of subordination between Canada and the U.K. and that this should be remedied by what he called "repatriation". He did warn, however, against "repatriation" "at any price". See Frank R. Scott, Essays on the Constitution: Aspects of Canadian Law and Politics, Toronto, 1977, p.402.
26. Although the phrase does appear it, legislation. See, for example, sections 3 and 5 of the British North America Act, 1871.
27. As far as I can tell, the only statute which still uses the word is the Dominion Controverted Elections Act, R. S. C. 1985, c. C-28. Despite its title, the Act is indexed under "C" in the current revision of the statutes.
28. See the interesting discussion in Hogg, op. cit., 1992, 1,,'. 104-105. Early editions of Bora Laskin's_Canadian Constitutional Law_ used "Dominion" without any evident shame or embarrassment. See, for example, 2nd ed., Toronto, 1960,pp. 30-37. Scott was not enthusiastic about either the term or the status. See Essays on the Constitution, op. cit., p.157.
29. See Holidays Act, R. S. C. 1985, c. H-5, 5.2. There was considerable controversy surrounding the passage of the amendment to the Holidays Act, R.S.C. 1970, c. H-7, which effected the change. In the first place this was a private member's bill, one of the very few ever to find its way into law. In the second place, it appears there were only 13 Members present in the House of Commons when the motion to read the Bill for a third time was adopted. The quorum in the House of Commons is 20. (Constitution Act, 1867, s.48). Further, only minutes were devoted to consideration of the Bill by the House of Commons. And, finally, there was a lengthy and acrimonious debate about the Bill in the Senate, a debate in which some Senators tried, without success, to discover why a private member's bill was being pushed through Parliament with such haste, particularly when an earlier government bill to the same effect had been tabled. In, the Senate, at least, there was a full debate over the desirability of making the change. A Senator who favoured "Canada Day" observed, "... history is not a stagnant pool". (Canada,Debates of the Senate, First Session, Thirty-Second Parliament, vol. IV, 22 July 1982, p.4668.) A different view of history was advanced by a Senator who wished to retain "Dominion Day", "I am saddened that it seems so easy for people to cast aside, and to allow others to cast aside, our glorious history". (Ibid., 27 July 1982, p. 4685.).
30. "George Grant's Lament", (1993) 100 Queen's Quarterly, no. 1, 199 at p.206.
31. lbid.,p.210.
32. H.D. Forbes, op. cit., p.50.
33. See J. L. Granatstein, How Britain's Weakness Forced Canada into the Arms of the United States, Toronto, 1989.
34. Some commentators contrived not to understand that this was happening. See, for example, D. Smiley, "A Dangerous Deed: The Constitution Act, 1982" and R. Whitaker, "Democracy and the Canadian Constitution" in Keith Banting and Richard Simeon, eds.,And No-one Cheered, Toronto, 1982. Others, however, did understand. See Ronald I. Cheffins and Patricia A. Johnson, The Revised Canadian Constitution: Politics As Law, Toronto, 1986, pp.145-156.
35. See above, p.43.
36.See my article, "How I Lost My Father - Twice",The Globe and Mail, 11 November 1991, page "A".
37. Toronto, 1993, p. 13.
38. Ibid.. p.14.
39. Freedom and Order, op. cit., p 49.
40. The Canada Clause would been added as part of a new section 2 of the Constitution Act, 1867. The following would have become some of our "fundamental characteristics".
e. Canadians are committed to racial and ethnic equality in a society that includes citizens from many lands who have contributed and continue to contribute, to the building of a strong Canada that reflects its cultural and racial diversity;
f. Canadians are committed to a respect for individual and collective human rights and freedoms of all people;Consensus Report on the Constitution: Final Text, Charlottetown, 28 August 1992, p.1.
First prize in the vacuity sweepstakes must go to the proposal put forward in 1992 by the government of Ontario. Its suggested "Canada Clause" would have advocated "democratic participation by all Canadians, whatever their race, gender, religion, culture, or physical or mental disability; and concern for the well-being of all Canadians" as well as "respect for the dignity of individuals, groups and communities". Legislative Assembly, Select Committee' on Ontario in Confederation, Final Report, Toronto, 1992, p.10.
Robert Martin is professor of Law at the University of Western Ontario.