Mr KILROI PRESENTS | LINKS AND REFERENCE | MORE CHERISHED RIGHTS | HOME
The British North America Act (BNA) our first Constitution was the enabling device that brought about the creation of the Dominion of Canada. This was the first time in English history that self governance was granted to a colony with in the British Empire. This came about peacefully without armed conflict and was negotiated by the fathers of Confederation and Westminster. The curious part of this for me is why did we not have a bill of rights declared then? Growing up in Canada we seen our neighbours to the south of us celebrate their independence from Britain and we have been privy to the U.S. Constitution and its Bill of Rights I say privy because American media has broadcast across the airwaves their Ideals. I know why the U.S. has what it has. But still why did we as Canadians not wish to have a "Bill of Rights". The short and most unsatisfactory answer is of course "We aren't Americans". It is quite conceivable that our Country men of the day bristled at the mere mention of such a notion, citing we are British Subjects. I would offer another perhaps simpler explanation. We did not need one. We inherited the English Common Law and all the laws of England as such the idea would have been redundant.
Canada was not an independent state as of 1867. In fact it was still a possession of Great Britain, and all persons within the borders were still British Subjects. The BNA did not create a Country in the common use of the word nor did it sever the ties to Britain indeed we still swore loyalty to Queen Victoria and the Union Jack flew over our Government buildings. Further our foreign policy still lay in the hands of the English Parliament. Canada was granted the Right of self Governance only. Meaning we could be masters of our house within our borders. By contrast we examine the Thirteen Colonies of British North America before the declaration of of independence of 1776 we see a different situation. We see thirteen independent British colonies in existence Governed by thirteen individual Governors. Uniting and declaring the Republic. Masters of their house within and without severing all ties with Britain. As such they needed to create the principles by which they would govern. Then Entrenching these principles into the written word. Oddly they did save what was best of English Rule. The Common Law.
The Rule of People
While I did touch ever so briefly upon the Common Law and gave it an alternate meaning in "judge made law" we must look at its origin. The common law came from the people, hence the term "common" it is law that is based in agreement as opposed to legislation by a government. Far back in time man formed unions between one another and over time made agreements in order to live together in some semblance of harmony. As man progressed so did the common law. A metaphor for the Common Law would be the pearl in an oyster layer upon layer built up over time in reaction to an irritation.(1). It is also the product of tradition and custom to quote
"Primitive man knew nothing of laws, all he knew was custom. Custom, or tradition, evolved into rules for living. They grew spontaneously, viz., not deliberately designed by some particular human mind. While no one can point to the origins of our traditional moral rules, their function in human society is clear enough. These moral rules, or traditions, are necessary to preserve the existing state of affairs; such that culture was allowed to evolve; and in turn, with culture, civilizations came about. Thus, as David Hume wrote, man developed in an evolutionary fashion -- not only biologically, but also culturally. That, like the lot of all animals, man evolved in accordance with certain natural rules, in that "no form can persist unless it possesses those powers and organs necessary for its subsistence: some new order or economy must be tried and so on, without intermission; until at last some order which can support and maintain itself, is fallen upon."
The English Common Law is merely the continuance of earlier law. Judges became the administers of the common law. It is not that they create new law or remake laws they merely apply the the law through the process of interpreting "settled principles". However it should be said that by interpretation they did create new law with each case though it was not their intent to do so. Without the common law a judge would need to view each case before him as though it was completely new and adjudicate it without the aid of experience of other similar cases.
The Right of Inheritance
As British Subjects we inherited a Parliament similar in Principle to that of Westminster. This is not the "Triggering" act that gave us the inheritance of the Laws of England no indeed in the words of constitutional expert, Dr. Eugene Forsey.(3)
I was reading a quotation from an eminent Canadian professor of Law,. . . and was flabbergasted to find him saying that the preamble to the British North America Act, which speaks of a ‘ ‘Constitution similar in principle to that of the United Kingdom,’ had brought into Canadian Constitutional Law such enactments as the Bill of Rights and the Habeas Corpus Act. I felt obliged to tell the young lawyer who was citing this as an authority that it was nonsense. The phrase ‘a constitution similar in principle to that of the United Kingdom’ meant simply ‘responsible government’. The Quebec resolutions had said that the executive government was to be vested in the Queen, to be exercised by Her Majesty personally, or by her representative duly authorised, ‘according to the well understood principles of the British Constitution’. The phrase in the preamble to the Act was simply the Colonial Office legalese for what the fathers had proposed. It had nothing to do with the Bill of Rights or the Habeas Corpus Act. Those enactments became part of the law of Canada by virtue of the reception of the English law in the various parts of Canada long before confederation. There is no ground whenever for dragging them in by any preambular back door. The dates are given in the late Chief Justice Bora Laskin’s Hamlyn Lecture, The British Tradition in Canadian Law.
So it is not by the preamble we inherit our Rights indeed the knowledge of these Rights long existed here in Canada. since 1791. It was understood that WE have Rights as British Subjects. As time passes change comes, it is inevitable. Canada grew more and more autonomous from Britain it evolved from a Colony to a thriving Nation which fought along side Britain in two wars. With the end of World War II came Canada's greatest step toward independence we began to take over our foreign policy and immigration and Citizenship. The following proved that a need for our Bill of Rights was needed. Such a Bill would end the caprice of bureaucrats and ensure every Canadian was equal before the law and protect them from the legislature. Noble indeed but proved to be problematic to say the least. It did not receive universal acceptance because as is usual in Canada no one could agree upon it. In Frustration Prime Minister Diefenbaker forged ahead and past the Bill of Rights 1960. Since it did not receive the support from the Provinces needed it only applied to the Federal Government. This same lack of accord would haunt the future Charter as well.
At no time was the Common Law repealed nor was it limited. For the first time in history Canadians had more than good will from their elected representatives. At last the Supreme Court could protect the citizen's Fundamental Rights.
The Government is made up of elected representatives MPs (Member of Parliament) or MPP (Member of Provincial Parliament) another term is Member of Legislative Assembly (MLA) When a majority of one party is elected to the assembly or Parliament they form the Government. While we would like to believe that they are benevolent to the citizen, this could be nothing further from the truth. The Government is for lack of a better way of putting it the "Heavy Boot" of the law. They represent the power to coerce. It is the nature of every Government to declare war on Liberty they do so unwittingly in our Country through legislation. I say unwittingly only because their intent is not so much our enslavement as it is to be re-elected. How does one measure a Governments productivity? by the Amount of "Legislation" and "Problems" they solve. It is also important to note that there exists a permanent government. The Civil Service, is our permanent government unlike politicians they are not elected but hired. Jobs for life as it were. The bureaucracy changes with retirement and promotion, they out live many governments and ruling parties in Parliament .
What is legislation?
Where we have the Common Law which is fair and made of the people,by their consent and agreement (2) You have the foul and ugly half brother legislation. It is a brute that knows no bounds with sword and rope in hand ready to crush any who oppose him. It is the rule of conduct imposed by authority. Unlike the Common Law which is eternal, legislation's life span is as long as it will be tolerated. It loses its power when the citizens refuses to obey it or it falls out of favour with the people. The word legislation comes from the latin words meaning "Law" and "Bringing". To understand what legislation is one must look back in history to a time when Priests interpreted Divine Law giving it to the people to be obeyed. Kings in the Ancient world were often considered divine beings therefore their word was divine law.
Vote hungry politicians and social engineers are not in a position to make good law. They are motivated by their own self interest in the first case and in the second lack the understanding of human nature.(2) We as a society pay them handsomely to govern us. We foolishly want to see results and they wish to justify their wages. We also are under a system that perpetuates party rule. Whether we like it or not we do not elect individuals to govern but groups, at the end of election day the group with the most elected individuals Governs. Due to the reason we have an English style Parliament we have a system where the Governing party is brought down by a vote of non-confidence. No Governing party wishes to bring itself down so strict rules are applied to individual members of the party, to vote the party line. At the end of the day it is what is best for the party not the citizens that wins out. As such there is an inherent conflict of interest, though we as citizens would like to be believe our interests are at heart it is not the case. Indeed bad laws are forced upon the citizen as a matter of course. It was legislation that enabled slavery and it was legislation that allowed the internment of Japanese Canadians during world war II. History has shown us that this was unjust no differently than the treatment of Aboriginal People in our past is coming back to haunt us today.
Our Shield From Bad Law
We do not always need to live with bad law there is a place where it is remedied. The Courts, like the common law which we inherited from England we have also inherited a court system similar to that in England. It is this venue that bad laws may be challenged. To be simplistic we have Rights both Common Law and Constitutional. In the Court the law is measured against both of these rights and if a law is found to be in conflict with either of these the law is considered null and of no force. Of course in real life it is not as simple as this. When one challenges a law one must demonstrate to the judge that it violates a right in very concise terms and supported by precedent in the Common Law. Ones contention is also challenged by way of the Crown's Attorney. At the end of it the Judge must decide and he too must support his opinion. This may not be the end of the matter because there are higher Courts which may overturn or confirm a Judges decision. The Highest Court in Canada is the Supreme Court of Canada. This the place of absolute last resort. It has the power to render legislation void and amend the Common Law to be consistent across Canada.
The Supreme Court is supposed to be independent of Parliament and act only in accordance with the principals of fundamental justice. They cannot remake law nor invent Rights. They must consider carefully each and every argument made to them and give them weight accordingly. Our High Court has the power to strike down laws, that do not comport with our protected rights and are contrary to fundamental justice. It is rare that they strike down laws. When they do they have strong and compelling reasons to. It has been opined by some that the High Court has no right to strike down laws which are the result of legislation. Arguing that the elected Parliament is the will of the people, and the un elected Judiciary is not. But surely this is not the case, as mentioned previously Parliament is the Rule of the Party. It is not the unanimous consent of the people and power should never solely lie in the hands of a simple majority. The Supreme Court must stand as a limit on the legislators and guarantee our Freedoms and as a shield against unjust laws.
Our Shield? An Indictment of Our Judiciary
The sad news. I once believed in the integrity of the Judiciary, unfortunately that is not the case. Certain cases have come before the courts of appeal and the supreme court which has changed this point of view. I have come to see that the courts today are little better than rubber stamps for the Governments. In all the research I have done of case law rarely does an ordinary individual win an appeal. Case in point, there have been 2 cases before The Supreme Court of Canada, both involved arbitrary detention both involved illegal search and seizure. One involved 2 white guys in an SUV driving along the highway being stopped for no reason and being searched. A million dollars worth of cocaine was found. Their rights were violated and the evidence (cocaine) was excluded because it would bring the administration of Justice into disrepute.
The second case involved a lone black man walking down the street with his back pack. He was stopped for no reason and questioned by police, he was arbitrarily detained as well. They found a handgun in his knapsack he was charged, however when his case made it to the supreme court even though his rights were violated the evidence against him was not excluded because the court ruled that the administration of justice would fall into disrepute if it was.
It appears that cocaine which fuels the narco-gang wars in Toronto is less important than a handgun in the hands of a blackman. Equality before the law means either both are excluded or neither is. It appears a handgun will get you to prison but cocaine trafficking will not.
If I were a suspicious person I would suspect an agenda is in play where the High Court is concerned.
The truth is, in order to have true democracy in Canada we the citizens must take a different tact. As stated we have a system of party rule. To break this hedgomy we would need to make a shift in our fundemental thinking. We would have to stop supporting a "Party", whether it be the Liberals, Conservatives, or NDP. For that matter any fringe movement. Instead we need to start looking at independant canidates and lending our votes to them instead of lending them to the big political machines known as parties. By doing this we take back our right to be governed by People of our choosing. I say this because many times a Party will cherry pick a canidate to represent a riding and parachute them in to the community.
The beauty of voting for independants is, the canidate owes nothing to the party machine instead his loyalty is to WE the voters of a particular riding. I believe under the rules of Parliament they would become a defacto party and receive the perks and bennifits reserved for "Parties". The tricky part is forming a cabinate and deciding on a Prime Minister. Perhaps the Crown would or could do as it was once done before in England and appoint the Prime Minister until the system can be reformed to make it democratic. However there are other details and minusia that would need to be sorted out, the Confidence portion would need be reformed or else we would be at the polls monthly. This would be indeed "Terra incognita" for us in Canada requiring patience and the determination to allow the process to find its level. In my own opinion the days following an election would indeed be chaotic as a Government is formed but it would be formed out of consensus rather than a Party Policy book. We would indeed find a diverse method and approach to governance.
This is an "Ideal" however real life is seldom ideal. We would see some very tulmutuous times in Canada. This idea is not without problems not the least of which is that it has not been done before. We have always had the comfort of a Party and its slate to vote on, the largest question to be resolved is. How would diverse ideas coalese into a functioning Government? One answer could be it does not need to. The model of a republic could apply and proposed bills would have to stand on their merrit and be studied through comittee in a non partisan way. Perhaps we would in time see power de-centralized and shifted to regions. Perhaps we could see Parliament acting more in the role of a senate. However this is Canada and to reform the system reguires the support of the Provinces.
1-Peter Landry essay on the common law
2-Landry's essay on legislation
3-Chief Justice Bora Laskin’s Hamlyn Lecture, The British Tradition in Canadian Law.
* R. B. Bernstein, "Parliamentary Principles, American Realities: The Continental and Confederation Congresses, 1774-1789," in Inventing Congress: Origins & Establishment Of First Federal Congress ed by Kenneth R. Bowling and Donald R. Kennon (1999) pp 76-108
* Burnett, Edmund Cody. The Continental Congress: A Definitive History of the Continental Congress From Its Inception in 1774 to March, 1789 (1941)
* Farber, Daniel. Lincoln's Constitution. (2003) ISBN 0-226-23793-1
* Barbara Feinberg, The Articles Of Confederation (2002). [for middle school children.]
* Robert W. Hoffert, A Politics of Tensions: The Articles of Confederation and American Political Ideas (1992).
* Lucille E. Horgan. Forged in War: The Continental Congress and the Origin of Military Supply and Acquisition Policy (2002)
* Merrill Jensen, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774-1781 (1959).
* Merrill Jensen: "The Idea of a National Government During the American Revolution", Political Science Quarterly, 58 (1943), 356-79. online at JSTOR
* Calvin Jillson and Rick K. Wilson. Congressional Dynamics: Structure, Coordination, and Choice in the First American Congress, 1774-1789. (1994)
* Forest McDonald.Novus Ordo Seclorum: The Intellectual Origins of the Constitution. (1985)
* Andrew C. Mclaughlin, A Constitutional History of the United States (1935) online version
* Pauline Maier, American Scripture: Making the Declaration of Independence (1998).
* Jackson T. Main, Political Parties before the Constitution. University of North Carolina Press, 1974
* Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (1982).
* Jack N. Rakove, “The Collapse of the Articles of Confederation,” in The American Founding: Essays on the Formation of the Constitution. Ed by J. Jackson Barlow, Leonard W. Levy and Ken Masugi. Greenwood Press. 1988. Pp 225-45 ISBN 0313256101
Peter Landry B comm, LLB An essay on the Common Law
CBC Archives on line