Constitution of Canada

“ The Canadian Constitution, for example, having provided for the Union of Provinces by which the Federation was created, begins at once with the statement that "the Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen." Nothing has been said about a Legislature—nothing about the people of Canada. The Constitution begins at once with an Executive Authority which nothing has brought into being, and which therefore exists of its own right, original and indefeasible, all things else in the Constitution depending from it. ”

“ It is also the fact that in the United Colony of Upper and Lower Canada, during the period of 1840-1867, parties were formed mainly upon the lines of races, and that, as the representatives of the races were in number nearly balanced, stability of Government was not attained, a difficulty which was not overcome until the Federation of 1867, accompanied by the relegation of provincial affairs to provincial Legislatures, placed the whole political Constitution of Canada upon a wider basis. ”

“ Nevertheless a year or two before the close of this period we can see in the province of Lower Canada premonitions of that irrepressible conflict between the two houses—one elected by the people and the other nominated by and under the influence of the crown—which eventually clogged the machinery of legislation. We can also see the beginnings of that strife of races which ultimately led to bloodshed and the suspension of the constitution given to Lower Canada in 1791. ”

“ Exuberant forest growth is always characterized by some fungus and dry rot. How has Canada escaped so much of this fungus excrescence of representative government? To get at the reason for this it is necessary to trace back for a little space the historic growth of Canada's form of government. We speak of Canada's constitution being the British North America Act. As a matter of fact, Canada's constitution is more than an act—more than a dry and hard and inflexible formula to which growth must conform. ”

“ Without an agent the Assembly would be deprived of the right of petition. An agent was especially necessary to the people of the province, because endeavours were even then being made to prejudice the imperial government, and the British nation against Canada, and endeavours were being made to effect a change in the free constitution which had been conferred upon Lower Canada, by means of a union of the two Canadas, the language, laws, and usages of the two provinces being entirely distinct. ”

“ On October 28th the conference was concluded, and its resolutions substantially form the constitution of Canada. On October 31st Brown wrote: "We got through our work at Quebec very well. The constitution is not exactly to my mind in all its details—but as a whole it is wonderful, really wonderful. When one thinks of all the fighting we have had for fifteen years, and finds the very men who fought us every inch, now going far beyond what we asked, I am amazed and sometimes alarmed lest it all go to pieces yet. ”

“ QU'à la demande et avec le consentement du Canada, le Parlement du Royaume-Uni a déjà modifié à plusieurs reprises la Constitution du Canada;
QU'en vertu de leur appartenance à un État souverain, les Canadiens se doivent de détenir tout pouvoir de modifier leur Constitution au Canada ”

“ All party prejudice aside, every allowance made for political errors in times of violent controversy, the result of their efforts has been not only eminently favourable to the material development of the country but also to the mental vigour of the people. The statesmen who met in council in the ancient city of Quebec during the October of 1864 gave a memorable illustration of their constitutional knowledge and their practical acumen in the famous Resolutions which form the basis of the present Constitution of Canada. ”

“ Canadians have built wisely when, in the formation of their constitution, they followed the English plan of retaining an intimate and invaluable connection between the executive and legislative departments, and of keeping the judiciary practically independent of the other authorities of government. Not only the life and prosperity of the people, but the satisfactory working of the whole system of federal government rests more or less on the discretion and integrity of the judges. ”

“ Canadians are satisfied that the peace and security of the whole Dominion do not more depend on the ability and patriotism of statesmen in the legislative halls than on that principle of the constitution, which places the judiciary in an exalted position among all the other departments of government, and makes law as far as possible the arbiter of their constitutional conflicts. All political systems are very imperfect at the best; legislatures are constantly subject to currents of popular prejudice and passion ”

“ The beauties of colonial irresponsible government were as discernible in Upper Canada, where there were no seditious, English-hating, Frenchmen, as in Lower Canada. A private gentleman, two editors of newspapers, a member of parliament, a captain in the army, and a judge had experienced some of the benefits derivable from a constitution, the very transcript and image of that of Great Britain, managed by a General of Division and a clique of placemen. ”

“ The answer is, that the case of Canada is as regards Federalism irrelevant. Canada is not part of a British Federation. The Dominion as a whole is simply a colony, standing essentially in the same relation to England as Victoria or New South Wales. The laws of the Parliament that meets at Ottawa need the Royal sanction, or, in other words, may be vetoed, or rather not approved, by the English Ministry of the day. The Act itself on which the existence of the Canadian constitution depends is an Act of the British Parliament, and cannot be modified by any other authority. ”

“ The Parliament of Canada may from time to time establish new Provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any Province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such Province, and for the passing of laws for the peace, order and good government of such province, and for its representation in the said Parliament. ”

“ Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. ”

“ III.; the inhabitants of Lower became entitled to property, civil laws, religious liberties and rights, in many respect different from, and in some instances at variance with, those that have prevailed or do prevail in the other British Colonies. The existing constitution ensures them the full enjoyment of all these, without alteration, unless the majority of the qualified electors throughout the Province should consent to change them, by Representatives chosen by themselves. ”

“ That is what I mean when I say that Canada's constitution is a vital, living, growing thing, not a dead formula by which the Past binds and impedes the Present and the Future.
There must be a session of the Dominion Parliament once every year. Five years is the limit of any tenure of office by the Commons. Every five years the Commoners must go to the country for reelection. Usually the government in power goes to the country for reendorsement before the term of Parliament expires. ”

“ Such are the general principles of colonial government, but one colony requires special mention, from the circumstance of its Constitution having been put forward as a model for Ireland; this is the Dominion of Canada. The Government of Canada is, in effect, a subordinate federal union; that is to say, it possesses a central Legislature, having the largest possible powers of local self-government consistent with the supremacy of the empire, with seven inferior provincial Governments, exercising powers greater than those of an English county, but not so great as those of an American State. ”

“ But the notion that Canada must avoid the dangers of State sovereignty is continually cropping up in the literature of confederation. Friends and [Pg 164] opponents of the new constitution made much of these mysterious residuary powers, and the Lower Canadian Liberals feared that they were being drawn into a union that would destroy the liberties and imperil the cherished institutions of the French-Canadian people. ”

“ And as it is not historically essential to the conception of a federal State that all its constituent communities should have the same form of internal government, so practically it would be possible, even if not very easy, to devise a scheme which should recognize the freedom of each member to give itself the [Pg 474] kind of constitution it desired. Such an executive head as either the President of the United States or the Governor-General of Canada is not essential to a federal system. ”

“ Pitt recognized the evil, and undertook to remedy it and in 1791 he introduced a bill to establish a constitution for Canada, which a recent historian describes as "remarkable, as recognizing for the first time the wise and generous principle of independent colonial institutions, which has since been fully developed in every dependency of the British crown capable of local self-government." ”

“ They endanger or destroy the just right which His Majesty's subjects in Lower Canada enjoy by the existing Constitution, of not being taxed, or not having the proceeds of the taxes levied on them, disposed of, without their consent through their own Representatives.
3rd. They endanger the right which they now enjoy, and which is guaranteed to them in the most solemn manner, of preserving their existing laws and institutions, unless they consent by their Representatives to alterations. ”

“ If sections 605 and 610 (3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7, 11 (d) 11 (f) , 11 (h) and 24 (1) of the Canadian Charter of Rights and Freedoms, are ss. 605 and 610 (3) justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
Held (McIntyre and La Forest JJ. dissenting) : The appeal should be allowed and the acquittals restored. The first constitutional question should be answered in the affirmative as regards s. 7 and the second in the negative as regards s. 7. ”

“ To understand the political evolution of Canada it is essential to begin with a study of the elements of Canadian society. Canadian constitutionalists would have written to better purpose, had they followed the example of the Earl of Durham, in whose Report the concluding practical suggestions develop naturally from the vivid social details which occupy its earlier pages, and raise it to the level of literature. In pioneering communities there is no such thing as the constitution, or politics, per se ”

“ Mc Newspaper, Mackenzie starts, 320; destroyed by mob, 321; draft constitution of provisional government published in, 356.
Constitutional Act, 1791. The Act was designed to harmonize the conflicting interests of French and English by dividing Quebec into two provinces,—Upper and Lower Canada,—thereby giving to each a larger control of its own local affairs. It established in each province a Legislative Council, appointed by the crown for life, and a Legislative Assembly, elected by the people. See other constitutional acts: Quebec Act, 1774; Union Act, 1840; British North America Act, 1867. ”