As some have sought to commemorate many anniversaries in 2017, the most notable of which is the 150th anniversary of the passing into law of the British North America Act (today known as the constitutional law of 1867, of which only the title is official in French!) and the creation of the Dominion of Canada, it is of interest to recall another great event of 1867: the speech given by Louis-Joseph Papineau before the Institut Canadien on December 17 1867.
Often described as his “political testament” and revealing “the measure of the man and the breadth of his thinking”, as Prof. Marc Chevrier so aptly put it, the allocution of the former head of the Parti canadien and the Parti patriote looked upon the creation the new Canadian federation with a critical eye.
The following passage is very revealing of Papineau’s views on the men at the origin of the British North America Act and on the process leading to its adoption: “It is not the rushed acceptance of the bungled confederation act in Quebec City that proves the wisdom of British statesmen. It was not their doing; It was prepared in the shadows, without the authorization of their constituents, by a few colonists eager to hold on to a power that was slipping away. This sinister project belongs to a few disreputable men with a vested interest, and to a duped British parliament, inattentive to what it was doing. At first sight, the confederation act is not worthy of the approbation of those who believe in the wisdom and the fairness of Parliament, in the excellence of the English constitution, since it violates its fundamental principles by appropriating money belonging to the colonists alone and not to the metropolis. It is more culpable than any other previous act. It has the same old faults, along with some new ones that are peculiar to it, and more exorbitant against the colonists than were those of parliamentary charters either granted or imposed.”
In this speech Papineau added: “The true sociological doctrines of modern times can be summarized in a few words: recognize that in the temporal and political order of things, there is no legitimate authority other than that which has the consent of the majority of the nation; that the only wise and benevolent constitutions are those for which the people were consulted and the majority of whom gave their free consent.”
The population will not be consulted
As for the “free consent”, it is pertinent to recall that the resolutions of the Quebec Conference, which were essentially the same as those in the British North America Act, were put to a vote in the Parliament of the United Canada on the 10th of March 1865, and that 62 of the 65 MPs from Canada-East, which was to become the Province of Quebec, participated in the vote. Of the 62 votes cast, 37 were favorable and 25 unfavorable. Among the Francophone MPs who made up 49 of the 62 votes, 27 voted for and 22 voted against. The final version of the British north America Act was never approved by the legislative assembly of the United-Canada, after its adoption by the Parliament of the United Kingdom and the royal assent by the Queen on the 29th of March 1867. And the population of Lower-Canada was never consulted on the contents of this new fundamental law.
The constitutional law of 1867 is one of the pillars on which Canada is built and continues to develop itself. By applying this law, the Parliament of Canada has considerably expanded its powers thanks to the courts, whether that be the Judicial committee of the Privy Council in London, who granted it powers in the field of radio-communications, telecommunications and cable services, and that are now used to regulate the Internet.
It is also this law that the federal authorities use to exercise a presumed spending power and to interfere in many powers under Quebec’s jurisdiction with respect to health care, post-secondary education, welfare and social services, child development and daycare. This presumed power is also behind the willingness of the Federal State to interfere in municipal and urban affairs and to formulate, as it recently did, a National Strategy on housing in Canada.
This was the first pillar in the edifice of the Canadian constitutional order which was completed by multiple other laws, among which we find the constitutional law of 1982. The adoption of this law, which resulted from a repatriation procedure brought to term without the consent of the government, the parliament or the people of Quebec, did not obtain, in the words of Papineau, the consent of the majority of the nation. Nor can it be described as one of the “wise and benevolent constitutions for which the people were consulted and the majority of whom gave their free consent,” in particular with respect to the principles of bilingualism and multiculturalism that it embodies. And yet, it is this law that the courts used to prevent Quebec from enacting, with the Charter of the French language, a policy aiming to make French the common language of Quebec. And it is evidently by virtue of this same constitutional law that the desire to affirm the religious neutrality of the Quebec state, not to mention its secularism, will also be blocked.
In order to honor Papineau’s memory, shouldn’t Quebec start a conversation with its own citizens about establishing a fundamental law of its own? Shouldn’t we prepare, not “in the shadows,” but in all transparency, a first Quebec constitution with “the authorization of its constituents”? Isn’t it time to create a Movement for the Constitution of Quebec?
By Daniel Turp, Professor at the Faculty of Law of the Université de Montréal, December 16 2017.
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