Canada An American Nation

Canada an Actual Democracy

The recorded facts are, I think, conclusive that it was the essential North Americanism of the Canadian people that led them into courses of thought and action with which the theory of government embodied in the Second Empire could not be permanently reconciled. If Canada had been an island a thousand miles removed from the American coast the constitutional development of Canada would have been, in all likelihood, along very different lines; the federation of the British nations with a common government might have been attainable. Canada must take the responsibility in history of having first made unworkable the original plan of empire government: a central authority that commanded and colonies that obeyed; and of then making impossible the solution which would have been preferable to Great Britain and to the Australasian Dominions. The present British Commonwealth of Nations resulted from the adoption of successive expedients for the purpose of keeping Canada in the family; this is the plain fact, simply stated.

What those in Canada who resisted the movement, and those in the other British nations who deplored it, could never understand, was that in this there was no attempt to imitate the institutions and political customs of the United States, and certainly no intention of furthering a merger of the two countries. They could not realize that this was an indigenous development, looking to the building up on the North {74} American continent of a nation which would be free to develop in its own way, and also to borrow and adapt methods and institutions from kindred nations near at hand or overseas, provided that this put no impediment in the way of the development of national sentiment. They should have been satisfied that there was no intention that the new nation should play the “sedulous ape” to the United States by the fact that there was everywhere in Canada an acceptance of the British methods of government as the readiest, the most adjustable and the most effective means of equipping a democracy to govern itself. In the organization of our parties, in the methods by which political campaigns are waged, in superficial aspects of our federal system, there are resemblances between Canada and the United States; but in the thing that really matters, the means by which the Canadian democracy makes the policies of the country and determines its courses, we have adapted to our own ends the British methods of government which have developed down the centuries. In our adaptation of these methods to the service of democracy we, with Australia, set the pace for Great Britain. In the home land of representative and responsible government it was long held that this system was workable only if the body of political power, which made governments and to which they were answerable, was aristocratic with a mere infusion of democracy. But in the British colonies there was not the offset of an organized aristocratic society and, once {75} responsible government was conceded, democracies of these colonies had put into their hands the most direct and effective system of popular government yet devised—to the great alarm of the governing society of Great Britain, as I have already shown by appropriate quotations. In the extension of the franchise, to the ultimate granting of adult suffrage, the Dominions were decades in advance of Great Britain.

Lord Bryce, in his Modern Democracies, saluted Canada as “an actual democracy.” In Canada, he said, “better perhaps than in any other country, the working of the English system can be judged in its application to the facts of a new and swiftly growing country, thoroughly democratic in its ideas and its institutions.”[17] This system of government developed in a unitary state; and many of the misconceptions about Canada, as well as most of our internal troubles arise from the fact that these had to be adapted to a federation. The Dominion of Canada could only come into being as a federal state, as Sir John A. Macdonald admitted when he reluctantly gave up his hope of a legislative union. We speak of the Constitution of Canada but we have no instrument of government comparable to that of the United States. If Canada were a unitary state we should no more have a written constitution than Great Britain has. There is no constitutional limitation upon the legislative power in Great Britain or in Canada. But in Canada the legislative powers {76} have been divided between the Dominion and the provinces in proportions which it apparently defies the wit of man and the learning of judges to define. After sixty years of judicial interpretation the confusion is greater than at the beginning. This arises in part from the fact that the last word on our Constitution is said by a court—the Judicial Committee of the Privy Council—which has no native understanding of a federal system. This was very strikingly shown many years ago when no less a person than the Lord Chancellor, hearing argument in an appeal from Australia, expressed his puzzlement at the claim that the law, which was the occasion for the lawsuit, was unconstitutional. His Lordship could not really understand how an Act of Parliament could be unconstitutional.[18] When the constitutionality of an act is challenged in Canada, the action means nothing more than the charge that the act has been passed by the province when the power is actually vested in the Dominion; or it may be the other way about.

When the Canadian statesmen were framing our Federal Constitution they went to the United States not for a model but for warnings. The Conference at Quebec was held while guns were thundering on {77} southern battlefields; in the fact of the Civil War justification was found for provisions sharply differentiating the Canadian from the American Constitution. Professor W. B. Munro in his valuable little book, American Influences on Canadian Government, says that Alexander Hamilton might be called “the grandfather of the Canadian Constitution.” Sir John A. Macdonald, who was the chief framer of the Canadian instrument, was thoroughly acquainted with the discussions which took place over the making of the American Constitution in 1787. There is in existence his annotated copy of Madison’s Debates in the Federal Convention of 1787 with special underlinings and markings of Hamilton’s draft constitution. Some of the principles offered by Hamilton and rejected by the Convention are to be found in the Canadian Constitution, among them these: Life senators; appointments by the federal government of the state governors; veto powers over state legislation by federal authority (through the governor); extensive powers to the central authority, exercisable for the common defense. Macdonald, forced by political conditions to forego legislative union, built a constitution which he thought fell little short of that which he desired, with the provinces having little more than municipal powers. “This,” he said in his speech in the Confederation debates, “is to be one united province with the local governments and legislatures subordinate to the general government and legislature.” By enlarging the {78} powers of the central authority not only by express enactment but by allocating to it all residual powers “I am,” he said, “strongly of the belief that we have, in a great measure, avoided the defects which time and events have shown to exist in the American constitution.”[19] This conception of the effect of the provisions allocating the powers was emphasized by the explanations given to the British Parliament by Lord Carnavon, the Colonial Secretary, introducing the Confederation measure.

Alas for the plans of constitution makers! Professor W. P. M. Kennedy of Toronto University, whose writings on the Constitution of Canada are standard works, writing in the Round Table recently said that “it is doubtful if the fathers of Federation would today recognize their offspring.” And he repeats an observation which has become a commonplace in the discussion of this matter:

We now witness on the North American continent singular political developments. The American Republic began with a theory of State rights. To-day we watch the ever-increasing growth of Federal power. Canada began its political existence with the scales heavily weighted in favor of the central authority. To-day the Canadian provinces enjoy powers greater than those of the states of the American Union. In both federations the most cherished aims of the founders have been nullified.[20]

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This state of topsy-turvydom in Canada is the result of an attitude of mind on the part of the Judicial Committee of the Privy Council which it took up some fifty years ago and in which it persisted until a very recent date. It refused to see in the British North America Act anything but a British statute; it interpreted it by arbitrary rules of construction which excluded consideration being given to its historical origins. By this construction the powers assigned to the provinces have been given a scope which has not only swallowed up, in large part, the reserve powers of the federal government, but has actually limited the powers conferred upon the central authority. Out of the control of “property and civil rights” by the provinces was developed a theory of interpretation which has completely destroyed the balance between the Dominion and the provinces which the makers of the Constitution planned. Incidental to this great development of provincial powers, the Dominion virtually renounced the use of its power to disallow provincial legislation. Recent decisions by the Privy Council on the cases dealing with control of the radio, and the right of women to sit in the Senate, reveal a change in attitude and an inclination to recognize the need of giving the central authority all the power that can be given it under the Constitution to meet the needs of this changing world. But the damage has been done. And it is at this juncture that there has arisen in Canada a powerful and widespread demand, largely {80} induced by recent developments in the United States, for the exercise by the Dominion of controlling powers over industry, which are far outside the bounds of its jurisdiction as fixed by judicial decisions.

There is perhaps a bare possibility that the courts might, following the precedent of the American courts, recognize an emergency right in keeping with Lord Haldane’s observations in the Toronto electric case: “No doubt there may be cases arising out of some extraordinary peril to the national life of Canada, as a whole, such as the cases arising out of a war, where legislation is required of an order that passes beyond the heads of exclusive provincial competence.”[21] Failing this, the situation can only be met by an amendment of the British North America Act so redistributing the legislative powers as to give the Dominion the powers that a central government requires and will require in increasing measure as time goes on. There is therefore today a loud clamor for the immediate modernization of the British North America Act. One hears on all sides and from the most unexpected quarters the question, delivered in truculent tones, whether the needs of Canada today and tomorrow are to be denied by invoking the dead yesterday. The awkward situation now emerges that while we have no domestic machinery for amending the Constitution, the procedure by which the amendment of the Constitution by the British Parliament can be invoked is not known, {81} and is at this moment the subject of angry controversy. In view of the fact that the Constitution has been amended at least a dozen times, this statement sounds absurd. Yet it is the literal truth.

It is now ten years and more since in Parliament and in the press the view began to be urged that Canada, in anticipation of the time that could be easily foreseen when the reconstruction of our Constitution would be required to meet the necessities of the changing conditions, should provide herself with a definitely worked-out procedure by which changes in the British North America Act could be initiated and carried out with promptitude. Practical suggestions when made looked either to the American or the Australian model. The Dominion Parliament, it was suggested, should enact the amendment which would become valid when ratified by a sufficient proportion of the provinces or by direct vote of the people as in Australia. Had this been agreed to, the British Parliament would have been happy to transfer to the Canadian people the power to amend the Canadian Constitution which is now vested in it. But the proposition was resisted. Both government and opposition parties objected to the question being raised, since it touched susceptibilities of race and religion. It was argued that the present arrangement was satisfactory since the British Parliament would amend the Constitution upon request. Request by whom? This is the point about which the controversy rages. Incidental to the {82} strengthening of the powers of the provinces the “compact theory” of Confederation has gained strength, This is a claim that the British North America Act is a treaty between the provinces; that in consequence it can only be changed if the governments of the nine provinces and of the Dominions are agreed; and that any province at will can veto a suggested amendment, in which case the British Parliament is estopped from making the amendment. The contention is grotesque; but it has a sufficient political backing to deter the Dominion Parliament from attempting to initiate amendments should there be provincial opposition.[22] We are therefore a country bound by an unchangeable constitution at a time when the Canadian people—like the people of other lands—are avid for change and impatient at restrictions embodying bygone ideas. Practical statesmanship is seeking to lessen the pressure, meanwhile, by working out agreed policies where powers are divided between the Dominion and the provinces and making them operative by conjoint legislation. There are cases in evidence at the moment. In order to get an ironclad law permitting control of the sale of wheat, the western provinces, by legislation, are seeking to give the Dominion Parliament power over property and civil rights to the extent necessary to carry out the agreed-upon plan.

If a critic were to say that this inability to modify {83} the Constitution so that it will march with the times is a serious blemish on Canada’s claim to be “an actual democracy” the force of the challenge would have to be admitted. If he were to say further that the admission that the British Parliament has, at least in theory, the right to change our Constitution, and that a British court has the last word about our laws, tends somewhat to blemish the picture of national independence which I have drawn, I should concede the point, pleading only that we have admittedly the right and the power at will to remove these anomalies once we can agree among ourselves that this should be done. These are vestigial remnants of a past phase of our development.

Against the assertion that Canada is a democracy where public opinion rules and can speedily make itself effective without having to overcome the resistance of vested interests and privilege, it could be said that this claim is inconsistent with the fact that we have in Canada a second chamber known as the Senate. The objection, I shall admit, is in form unanswerable; but in fact it has but little value. Our Senate, I agree, is for a democracy an astonishing institution. The senators are limited in number—twenty-four from each of the four geographical divisions; the Maritimes, Quebec, Ontario and the West. They are appointed for life by the government of the day. They tend therefore to represent not the views of the present nor the hopes of tomorrow but the beliefs of yesterday. It {84} invariably happens when a new government takes office in Canada that it is confronted by a politically hostile senate. In theory this body could bring to naught the decision of the people to bring in new men and new measures, because it claims coördinate powers with the Commons except with respect to the introduction of money bills. In practice, however, it exercises only a suspensory veto. Though there have been one or two exceptions to the rule, it does not stand out against public opinion if the latter remains constant. There have been a sufficient number of cases where its rejection of measures has been accepted by the Commons and the country to give senators a good talking point in making a defense of their institutions. There are periodical manifestations of the Senate’s private conviction that it ought to play a joint part with the Commons in the government of the country—sometimes expressed in action by the rejection of bills, sometimes in talk. There is such a demonstration going forward at this moment, taking the form of speeches vigorously defending the Senate’s part and threatening a larger use of its powers. The Canadian Senate is undoubtedly an anachronism in a democratic state, and its amendment is one of the problems of tomorrow.

Despite these blots on the scutcheon I make bold to say on Canada’s behalf that there is no country in the world where there is a more complete acceptance of the democratic principles of government, or in {85} which these are more thoroughly exemplified. There can be no stay of proceedings by the invocation of privilege or power based on particular rights to prevent the popular will having its way with men, with policies, or with governments. No believer in democracy, in these days of disillusionment, will say that the popular will, as formulated and applied under existing conditions, provides ideal government; but it does, with all its defects, provide the best available government for these times and, what is of supreme importance, it keeps open that road to the future in which hopes and aspirations for humanity, not now achievable, may come to fruition.