A blupete Essay

Notes, to blupete's Essay
"The Canadian Constitution, A History Lesson"

1 The Magna Carta of 1215 was but an aberration. It contained a venerable list of rights to which, these days, we can lay real claim, including: The people can only be taxed by a bill passed through the parliament of the people (Art. 12); a Court (of Common Pleas) independent of the executive (the king) was set up (Art. 17); No servant of the crown is able to take a step that effects a citizen's rights without corroborative evidence (Art. 38); The right to a trial by a jury of ones peers (Art. 39); To none will we sell, to none will we deny, to none will we delay right or justice (Art. 40); and, Free passage in and out of England for purposes of trade (Art. 41). The Magna Carta, however, was but a list: the kings and the nobles within a year or two of 1215 returned to their old ways of continual fighting amongst themselves and hundreds of years were yet to pass before any real progress was to made in respect to the rights of the people.

2 Bagehot, The English Constitution, 1867 (Oxford University Press, 1928).

3 Both were powerful people within the colony. Their functions were different, though, in the final analysis, the governor was the superior of the two. I refer the reader to the brief sketch that I have put together on Fran├žois Bigot.

4 In New France, as in France, absolutism and centralization were the principles on which government was conducted. This compared to "the great governing principle of the English system, which has developed itself slowly since the revolution of 1688 - that great principle which makes the ministry of government of the day responsible both to the sovereign and the legislature for all matters of administration and legislation, and allows it to continue in office only while it retains the approval of the people's house." (See, Bourinot's, A Manual of the Constitutional History of Canada, 1901, (Copp, Clark), page 154.)

5 Bourinot's, Parliamentary and Practice (Montreal: Dawson, 2nd ed., 1892), pp. 1-2.

6 It should be noted that, "by 1848 the provinces of Canada, Nova Scotia and New Brunswick, were in the full enjoyment of the system of self-government, which had been so long advocated by their ablest public men."

7 The preamble to the B.N.A. Act declares "with a constitution similar in principle to that of the United Kingdom."

8 While the theory of federalism seems clear-cut, the reality has been another matter. Since the beginning, the problems of defining the separate powers of the two levels of government and of obtaining continuing agreement on them have been the subjects of an enduring dispute.

9 The Quebec Resolutions of 1865.

10 By the Statute of Westminster, in 1931, the British Parliament recognized the independence of self-governing countries of the Commonwealth. But Canada was not ready for such a step as it was unable to agree to an amending process, and thus, needed the British Parliament as a continuing piece of constitutional trapping, so that it might amend the B.N.A. Act, an act of the British Parliament. Canada, had itself excepted out of the primary provision of the Statute of Westminster. Try as they might, since 1927, the federal government and the Canadian provinces, mainly because of the English/French thing, could never come up with an amending formula acceptable to all -- and unanimity, in the setting up of an initiating constitutional term, as constitutional amending formula can only be, was necessary. After, many, many tries, in 1981, everyone threw their hands up: one prime minister and nine premiers [not Quebec] and a "constitutional" amending formula was struck. In 1982, the Canadian government went to an outside authority to achieve constitutional change which it could not achieve at home. What the Canadian government did back in 1982 was not only to ask the British Parliament to send a British statute, the B.N.A. Act, back to Canada rebaptized as a Canadian statute with power to amend; but, at the same time, if you will please, to amend it. It must be borne in mind that while Canada might not have been able to do the first thing (patriate its constitution), once repatriated, it most certainly could by its own constitutional process attend to its own constitutional amendments. It was, as one British MP, the Right Honourable J. Enoch Powell, put it, a fraud perpetrated on the Canadian people. Enoch Powell:
"My object is to distinguish the two separate things which the Committee is invited to do in the Bill, and to approve one of them and exclude the other. My purpose is to ensure that the Bill patriates to Canada the right to make the constitutional and other law of Canada, removes the constitution from the statute book of this country and removes our hitherto retained right to legislate for Canada. That I describe in a single word -- patriation. The Bill also enacts a charter of rights and constitution for Canada which has not existed before. I believe that the Bill should do the first of those two things and should not do the second ..." [As quoted by Kenneth McDonald in His [Trudeau] Pride Our Fall, (Toronto: Key Porter Books, 1995) pp. 38-9.] Powell, incidentally, and completely collateral to his point, was of the view that the charter in its use of general terms, was "incompatible with the rule of law ... which requires that the law shall be so defined and of such a character that the citizen may reasonably inform himself in advance of what will or will not be adjudged to be lawful.")

11 To understand the inalienable nature of a person's rights, one will have to have an appreciation of the theories which were first espoused, in 1690, by John Locke.

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