Challenging the idea of Canada’s Constitutional Identity

Challenging the idea of Canada’s Constitutional Identity: Questioning How 18th Century Taxation Legislation became the Canadian Identity

By Christopher Lamm

When discussing the constitutional creation of Canada, there’s one picture that usually jumps to the mind of historians: the 1864 Charlottetown Conference portrait of our Fathers of Confederation. If you don’t know what I’m referring to, type “Fathers of Canadian Confederation” into google images now and it’s the first one you’ll see (https://www.google.ca/search?q=fathers+of+canadian+confederation&es). That infamous, grainy, black and white photo of our intrepid founders standing in the morning sun you’ve seen dozens of times in your high school civics course has become a symbolic representation of Canada’s origins. We are a nation born from parliamentary temperance, loyalty to our Queen, political compromise and a principled document of good governance that we call our constitution…or so the narrative goes anyway.

Online, amateur historians have taken to discussing the real, uncensored, often liquor-soaked, background to Canada’s founding (https://www.reddit.com/r/canada/comments/1teahc/iff_canadian_fathers_of_confederation/). It’s a fun piece of trivia to know that our then-future prime minister John A. Macdonald would belt out lines that would awe Winston Churchill, like: “Yes, but the people prefer John A. drunk to George Brown sober” in reference to his colleague’s criticism of our future prime minister’s frequent drunkenness during parliamentary sessions (http://hazlitt.net/blog/drunk-history-canadas-booze-soaked-beginnings).

I like thinking about our founding fathers this way: drunk, snippy and incredibly human. The constitution comes alive for me as I imagine what went on inside our founding father’s heads as they drafted the defining document of our country. Mr. Macdonald stops being a portrait on my lunch money but becomes my friend’s funny grandfather. Go back to that Father’s of confederation photo now and take a deep look at Mr. Macdonald’s face and you’ll see the drooped eyes of a man in the throes of a legendary hangover. The second most famous portrait of our founding fathers (http://www.craigmarlatt.com/canada/images/history&people/fathers_lg.j) had to be completed in pieces through individual paint sessions because the members of Parliament could never quite manage to all be sober enough to congregate in one room for very long without imbibing multiple bottles of wine and ruining the poor painter’s attempts to keep them still.

However, as fun as this narrative is, it brings up an interesting reality about constitutional democracies – the strongest laws of our land were written by flawed human beings from another era with entirely different concerns than our own.

What would one day become The British North American Act, 1867 (BNA) was first an idea about representative taxation. Upper Canada, (now Ontario) which had ¾ of the population was, by a trick of the law, granted less than half the seats of the parliament of Upper and Lower Canada (now Quebec). To quote parliamentarian George Brown: “Immense sums of public money have been systematically taken from the public chest for local purposes of Lower Canada, in which the people of Upper Canada have no interest whatsoever, though compelled to contribute three-fourths of the cash” (http://www.huffingtonpost.ca/mark-milke/canada-constitution_b_3518066). The purpose of the constitution was simple: a federal government for national issues would be separated by a provincial government for local issues. To quote Brown again: “if our friends in Lower Canada choose to be extravagant, they will have to bear the burden of it themselves” (http://www.huffingtonpost.ca/mark-milke/canada-constitution_b_3518066).

This is why it can sometimes feel like Canada’s legislature and judicial systems are dealing with constitutional issues every other day. The constitution was never drafted to deal with the challenges of a post-industrial Canada. Mr. Macdonald didn’t consider international environmental treaties when he left nearly unqualified control of natural resources to the provinces.

Although there have been over 40 amendments to the constitution, its basic foundations, like the division of powers through sections 91 and 92, remain virtually the same as when they were drafted in 1867. Hundreds of changes through judicial interpretation are, arguably, the only things that keeps the constitution relevant to Canada’s needs as they now stand.

So, the questions now are, how did a confederation founded for taxation purposes, designed by men in 1867 get us to Canada in 2017 (the literal-minded may appreciate:http://www.lop.parl.gc.ca/parlinfo/compilations/Constitution/ConstitutionSincePatriation.aspx)? Why is our constitution held in such reverence by the Canadian population that discussions about amending it usually lead to an outed government (http://www.thecanadianencyclopedia.ca/en/article/meech-lake-accord/)? If there is some ethereal chain that connects Canadians A Mari Usque Ad Mare (https://www.google.ca/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=ad mare usque ad mare), why would it come from a document drafted before we’d touched the seas with our railroad?

I want to highlight the “how and the why”’s that make our constitution so confusing and disjointed at times. The document was not designed to deal with Canada’s future international commitments and obligations but we act as though it can. I don’t think there’s a perfect cure to the passage of time on constitutional legislation but I think it bears discussing that it’s what came about as a side effect of separate interests. The constitution is a landmark of where we were 150 years ago. That information should encourage us to reflect and change, not cling to a document representative of past ideals.

This content has been updated on 3 February 2017 at 11 h 06 min.