Why are we ignoring the Constitution Act of 1867?
There is less conflict between our two main constitutional documents than is sometimes imagined.
An anniversary might be thought an occasion for commemorating the event to which it refers. Not so, apparently, the sesquicentennial of Confederation. Celebrations are due to take place, to be sure, but a visitor to Canada might be forgiven for wondering what it is that we are about to celebrate. He or she might head to the government’s Canada 150 website, and find plenty of information about the festivities that are due to occur―but precious little about the historical events that we will, or will not, be marking. Yet in case you forgot, July 1 will be the anniversary of the coming into force of what we now call the Constitution Act, 1867.
This lack of interest in one part of our constitution is all the more remarkable when contrasted with the attention being showered on another―the Canadian Charter of Rights and Freedoms. It is turning 35 this year, and the Canadian government wants to make sure we know. A special section of the Department of Justice’s website, complete with nifty graphics, is dedicated to the Charter’s 35th anniversary, while the Justice Minister herself is travelling the country speaking and tweeting. There was indignation when the previous government ignored the Charter’s 30th. The watchword this time seems to be “never again”―except, that is, for that pesky old Constitution Act.
The government’s attitude seems to mirror, or perhaps to be mirrored by, that of the Canadian legal community. Not too many people seem to be bothered about the government’s neglect of Confederation, and few seem intent on putting up celebrations of their own. The Macdonald-Laurier Institute, with its Confederation Project, featuring notably a series of papers by Alastair Gillespie on some of the Fathers of Confederation, is perhaps the most significant exception to this trend. But my impression, for what it’s worth, is that Canadian lawyers, like the Canadian government, are much happier to celebrate the Charter than the Constitution Act, 1867.
I can think of a number of reasons for this state of affairs. On the government’s side, it is difficult to avoid suspicions of partisanship, just as it was difficult to avoid them when the previous government refused to commemorate the Charter. Both Liberal and Conservative governments have a record of playing politics with history and refusing to honour figures associated with the other party, and it would have been difficult to mark Confederation without talking John A. Macdonald and George-Étienne Cartier, just as it would have been difficult to fete the Charter with evoking Pierre Trudeau. Beyond partisanship, there is also a perception in some quarters that Confederation was a triumph of colonialism, deserving of lamentation more than celebration―as if Aboriginal peoples would have been treated any better had it not happened.
A somewhat more benign factor may also be contributing to the contrasting attitudes to the major parts of our constitution. Canadians are more interested in the future than in the past. This is not a bad thing, as the example of countries preoccupied with reminiscences, or outright delusions, of past grandeur, shows. The Charter is seen as aspirational, and therefore symbolizing the future. The Constitution Act, 1867, not so much. Now, one might think that although it is generally better to be more preoccupied with the future than the past, special dates, like a sesquicentennial, are appropriate occasions for making exceptions to this. I think so, anyway. But I also think that the conventional wisdom about our constitution is misguided.
Start with the Charter. In the name of bending the arc of history towards some “progressive” objective, judges and the activists egging them on break the constraints of the constitutional text and precedent, and thus honour the document to which they profess devotion in the breach rather than the observance. Yet emptying Charter rights of their content in order to fill them with aspirations means that they will not be there when aspiration turns to apprehension, and the times are seen as requiring the contraction rather than the endless expansion of constitutional protections.
Meanwhile, the Constitution Act, 1867, is not the dry, lifeless antiquity some might imagine. For one thing, it too holds a promise for the future, that we might only now beginning to realize with belated―and still uncertain―recognition of its guarantee of internal free trade. For another, though they may seem like technicalities, the design of an efficient and effective structure of government, and the limitation of the powers of this government by a federal division of legislative competences are no mean feat, and the success of the designers, not to mention the commitment of their heirs in the intervening century and a half to their design, are worthy of celebration.
Above all, Confederation is worth celebrating because of its meaning for the still pressing quest for ways for different linguistic, religious, and national communities to come together within a single polity. As Mr. Gillespie’s papers make clear, the Fathers of Confederation wrestled with such seemingly contemporary questions as whether diversity is a source of weakness of strength for a political community, what claims such a community may legitimately make on minorities within its midst, and what rights these minorities may assert against the community. The settlement of 1867 was a remarkable achievement in this regard, allowing the diverse components of this vast country to overcome their differences and hang together, if only, on occasion, by a thread.
Ultimately, there is less conflict between our two main constitutional documents than is sometimes imagined. The Charter did not invent the tradition of individual liberty and respect for diversity in Canada; it only gave a new institutional form to values that animated Macdonald, Cartier, Brown, and McGee. Conversely, they would, I think, have subscribed to Pierre Trudeau’s belief that “[i]f Canada is to survive, it can only survive in mutual respect and in love for one another.” They and their work deserve to be known and celebrated no less than the Charter and its framers―and this sesquicentennial year ought rightly to belong to them.
As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National will be regularly featuring leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years,