This is a summary of a study I undertook following my intervention to the Supreme Court of Canada and their decision in the Reference concerning the secession of Quebec. The objective of this study was to discover the constitutional framework for the democratic system of government that was established by the Constitution of Canada to reconcile the diversity with the unity of Canada.
Essentially, the Supreme Court responded to the reference by explaining that the secession of a province from Canada, if it is to be accomplished, must be achieved legally, that is, through the political process within the framework of the principles underlying our Constitution.
The Court explains that within this framework, our democratically elected leaders negotiate our constitutional interests with the participation and under the influence of the people to whom they are accountable. The result of this political process will be to ascertain and implement the “sovereign will” of the people by law with the consent of the governed.
The court also states that our Constitution was designed to permit the conciliation of the unity and the diversity of Canada but that the representative and democratic character of our public institutions at the time of confederation were simply assumed in the Constitution of Canada.
Thus, to understand the representative and democratic character of our public institutions created by the constitution of Canada, a review of our political history was required. This review was undertaken to ascertain the constitutional principles and practices developed, first in Great Britain and then in Canada, which defined this character at the time of Confederation.
The British model of Parliamentary Government
The objective of Parliamentary Government is to unite the political will of the people with the rule of government so that the people actually govern themselves as they wish.
The British constitutional model of government, structured to fulfill this objective, evolved considering the nature of man. On the one hand, given the legitimate constitutional freedom to pursue their own wishes and interests, the people will govern themselves seeking economic efficiency and social harmony to maintain a progressive, prosperous and civil society. On the other hand, this government must be administered by Man, who, given the power to rule his fellow man, will seek, even with the best of intentions, to overrule this constitutional freedom.
The British solution to this conundrum was to create a constitutional balance among the public institutions of government so that, through an efficient and harmonious political process, the influence of a vigorous public opinion is brought to bear on every detail of public affairs.
Gladstone explains the nature of parliamentary government as follows:
The cabinet is the threefold hinge that connects together for action the British Constitution of King… Lords, and Commons.
In the face of the country, the sovereign and the ministers are an absolute unity. The one may concede to the other: but the limits of concessions by the sovereign is at the point where he becomes willing to try the experiment of changing his government; and the limit of concession by the ministers is at the point where they become unwilling to bear, what in all circumstances they must bear while they remain ministers, the undivided responsibility of all that is done in the Crown’s name.
(W.E. Gladstone, “Kin Beyond the Sea,” North American Review, 127 (1878), pp. 180, 202)
The Evolution of Responsible Government in Canada
The political structure, the democratic mechanism and the balance of powers of the federal system of government for Canada established by the Constitution Act, 1867 are based on the practical experience gained during our constitutional evolution towards “Responsible Government”.
Following the Patriote Rebellion and the Insurrections of Upper Canada in 1837, Lord Durham reported that the colonial constitutions were defective. Although the people were represented in the House of Assembly to legislate according to their needs, the Governor was appointed to ensure respect for Her Majesty’s confidential instructions. The Governor needed his executive to manipulate the Assembly to enforce these instructions by law. As a result, the executive could dictate the terms for its co-operation in order, finally, to usurp the power of government in all internal affairs. The ensuing struggle for power between the House of Assembly and the Executive government resulted in the denial of the people’s constitutional liberty, the corruption of their moral and material values, the inability of government to provide necessary and obvious reforms and the complete disintegration of the State.
In 1840, Upper and Lower Canada were united by the Union Act to form the Province of Canada. The principles that were to ensure the subservience of the executive to the legislative branch of government, so that the “rule of government shall be the well-understood wishes and interests of the people”, were adopted by the House of Assembly on September 3, 1841.
These principles guaranteed that the executive government would be responsible to the people by providing that “the chief advisers of the representative of the sovereign, constituting a provincial administration under him [ i.e. the Governor General’s Executive Council and Cabinet], ought to be men possessed of the confidence of the representatives of the people”.
The Union Act entitled the people of both Upper and Lower Canada to an equal number of representatives in the House of Assembly. Given that the people of each of these regions govern themselves in accordance with a customary law, language, public institutions and religion unique to each, the House of Assembly naturally divided itself into two equal sections. The representatives of each section then claimed the right to the rule of government in accordance with their own wishes and interests. Both sections maintained that they each had the right to be constitutionally represented in the Executive Council and Cabinet to guarantee this rule of government.
Thus, when the Governor General of Canada, Lord Elgin, called upon Louis-Hippolyte LaFontaine to form the government, LaFontaine accepted on the condition that Robert Baldwin was given an equivalent position in his Cabinet so that the people of both Upper and Lower Canada would have a leader in whom to confide their government. Lord Elgin accepted this proposition and requested that the two leaders determine together the representative character of their Cabinet and agree upon a political program, which their coalition government would implement upon its approval by the majority of the united House of Assembly.
The political leaders of each of the two regions were required to agree on a political platform that would satisfy the wishes and interests of their constituents. The effect of this democratic mechanism was to exclude the local interests unique to each of Upper and Lower Canada from a common political platform. Consequently, only the interests common to the two regions were governed by law having effect throughout Canada. The local interests were governed by law having effect only in one or the other region of the province. It followed that this law required only the approval of the representatives elected to the House of Assembly from the region affected by this local law. Thus, was born the federal nature of the rule of law in Canada.
Since the people of each region had the right to be governed according to their own wishes and interests, neither of the two political leaders possessed the authority, from his constituents alone, to govern the union. The Governor General was acknowledged to be the Head of the Executive Government legally vested with all the powers of the State, but he had no authority to exercise these powers according to his own wishes and interests. The Governor General’s role was to sanction the exercise of the powers of the State in accordance with the well-understood wishes and interests of the people as expressed through the advice of his two first ministers possessed of the authority to speak on behalf of the representatives of the people.
This constitutional balance gave him the influence he required to ensure that his government remained constitutional, respectful of the law and in the service of the people.
If the Governor General thought his chief advisors were abusing their constitutional authority, he could dismiss them if he could find another leader willing to support his decision. Unless the Assembly approves this change of government, an election would ensue wherein the people would decide who abused their position. If the Cabinet thought that the Governor General was abusing his power, they could resign. Again, if parliament did not approve this new Cabinet, the people would ultimately be called upon to decide.
The consequence of losing the election were such that this constitutional balance of power constrained the ambitions of all parties to govern in accordance with the legitimate constitutional interests of the people.
This system united the will of the people for action with their executive government. Very shortly, an efficient administration and social harmony were restored.
The moral and material prosperity of Canada then progressed at a phenomenal rate. However, the French-Catholic community tended to seek moral prosperity, whereas the English-Protestant community tended to seek material prosperity, with the result that 75% of the government’s expenditures were paid by Upper Canada.
The Upper Canadians increasingly demanded that this injustice be repaired through constitutional reform. After many years of discussion to determine the principles upon which this reform was to be founded, the Assembly resolved to perfect the federal system by establishing local governments for both Upper and Lower Canada; each region would henceforth be financially responsible for the administration and economic consequences of its own local laws. To protect their sovereignty from American expansion, the Assembly also decided to invite the other provinces to join this federal union.
The Maritime Provinces were offered equal representation in the Senate to enable them to lawfully defend their interests in the federation as effectively as the future provinces of Quebec and Ontario. Interested in principle, they agreed to send delegates to Quebec in 1864 to negotiate the details for a union of the provinces under a general government.
In its decision, the Supreme Court of Canada stated that in Quebec City in 1864, the provincial delegates had established the framework of Confederation in 72 resolutions and that all the provincial legislatures had approved this framework as the basis of our Union. The Supreme Court also stated that the provincial delegates subsequently sent to London in early 1867 had reviewed and essentially approved these resolutions and that they had been loyally enacted in law by the Constitution Act, 1867 establishing the Dominion of Canada.
The provinces were represented at the conferences on Confederation, in principle, by delegates from all the provincial political parties. Thus, the whole range of constitutional interests of the provincial inhabitants was represented in these conferences. Their democratic character was due to the fact that the provincial delegates were charged with the responsibility to gain the approval of all the provincial legislatures and would be held accountable by their constituents to reconcile their legitimate constitutional interests in the constitution of Canada.
The Constitution of Canada
The constitutional framework of the democratic system of government for Canada consists of a political structure, a balance of powers and a democratic mechanism.
The political structure establishes an unbroken chain of authority rising from the people to guarantee the legitimacy of the rule of law. The balance of powers ensures that our government remains constitutional, respectful of the law and in the service of the people. The democratic mechanism establishes an efficient and harmonious process to reconcile the wishes and interests of the people into a mandate which, when approved by Parliament, determines the government to act.
By democratic election the people confide their authority to the members of the House of Commons and to the members of the Provincial Legislatures to represent and protect their prerogative in the exercise of the powers of the State.
The 14th article of Confederation sets out the principle underlying the representative character of the Senate. It states that the Senators shall be appointed upon the nomination of the provincial executive governments “so that all political parties are as nearly as possible fairly represented.” In this manner, the political capacity of the people regarding their local government is embodied in the Senate. Nothing in our Constitution prevents the provincial political parties from requiring that their choice of senator sign an undated resignation, so they may recall their delegate to better represent the wishes and interests of their electors in the Senate. This representative character of the Senate ensures harmony amongst the Senate and the provincial legislatures, responsibility of the provincial political parties for the conduct of their senators, and that the very best candidates will occupy the Senate.
Section 91 of the Constitution of Canada requires the advice and consent of both the Senate and the House of Commons to lawfully enact the law of Canada. It is important to note that section 91 requires not only that both Houses consent to the law of Canada, but also, that both Houses be consulted regarding the advisability of enacting a law. The Governor General must exercise of the powers of the State in accordance with the undivided authority of the people. Both Houses must agree on the advice they proffer regarding how the people wish to govern themselves. This implies the renewal of the democratic mechanism conceived by Lord Elgin to conciliate the interests of both Houses in a common political program and the composition of a coalition Cabinet to implement the will of the people in the government of Canada.
The constitutional representation of this advice to the Governor General is provided for by section 18 of our Constitution. Section 18, confirmed by section 4a of the Parliament of Canada Act, enacts that both the Senate and the House of Commons enjoy the same powers and privileges as those of the House of Commons of Great Britain at the time of Confederation. Given the same privileges, both Houses have an equal right to delegate representatives to the Governor General’s Executive council and Cabinet charged with the authority and the responsibility to represent and protect the wishes and interests of their respective constituents in the government of Canada. Also, both Houses have an equal right to revoke this authority and responsibility when they so choose. The effect is to maintain the same dual political structure and the same constitutional balance between the two Houses of the Parliament of Canada as existed between the two sections of the House of Assembly in the province of Canada.
Section 12 renews the same power, authority and functions the Governor General must exercise to facilitate the conciliation of the unity with the diversity of Canada. Hence, the Governor General must choose a political leader whom he believes is able to command a majority in Parliament to form the government. This leader must associate a leader from the other House to constitute an Executive Council and Cabinet representative of the wishes and interests of both Houses, as well as a political platform that their coalition government undertakes to implement upon its approval by both Houses of Parliament.
Thus, the integrity of the political structure, the constitutional balance and the democratic mechanism of the system of Responsible Government were maintained in the Constitution of Canada to ensure that the “well-understood wishes and interests of the people shall be the rule of government.”
This democratic system of government, perfected by Confederation and established by the Constitution of Canada, provides us with the following benefits:
It maintains responsibility for its government in the hands of the people. It ensures the transparency of the decision-making process to enable them to remove from office those advisers who do not actually represent their wishes and interests or are unable or unwilling to apply them in the government of Canada.
It unites the authority of the people with the power of the State to establish the legitimate power of the government to act in its name and with its consent. It reconciles the unity with the diversity of Canada by excluding the purely local interests, which the people consider to be within the legitimate authority and responsibility of the provincial government.
It enables the people, for example, to constitute a strong central government to vigorously defend Canada’s sovereignty in times of war and to recover these powers in times of peace in order to more vigorously pursue prosperity in accordance with the moral and material values and resources particular to their culture and geography.
It affords the people the freedom and responsibility to apply new and imaginative solutions to resolve their local concerns. It invites emulation among the provinces to adopt the best solutions that the federation can generate.
It ensures efficiency, harmony and stability in the government of our federation.
The corruption of our Constitution
In London, before the first Parliament of Canada was assembled, Governor General Lord Monck set aside the federal constitution intended by Confederation and, contrary to the law, offered John A. Macdonald the position of sole Prime Minister in a letter dated May 24, 1867. He states:
(…) in future … the position of First Minister shall be held by one person who shall be responsible to the Gov. Gen. for the appointment of the other Ministers, and that the system of dual First Ministers which has hitherto prevailed shall be put an end to.
Public Archives of Canada, Macdonald Papers, M.G. 26-A, vol. 51, p 2047-9, spool c-1505, MIKAN# 528612
The consequence of this decision was to corrupt the representative and democratic institutions of Parliament at the very source of power as under the colonial constitutions. The result, then and now, is that the rule of law is no longer established by the people through Parliament.
The rule of law
The British Constitution is unwritten. It is composed of principles the most fundamental of which is that “Englishmen are ruled by the law, and by the law alone.” (A.V. Dicey)
This “rule of law” underlies our constitutional government. It emerged from a fundamental principle of natural justice that all human beings are born equal, “equal to one another without subordination or subjection” (John Locke). It follows that neither King, government nor any other person is naturally vested with the lawful power to force them to act in any other way.
In British tradition, the law was developed by officers of the peace vested with the King’s power to administer justice in resolving disputes that arose from time to time among people in their private affairs. Case by case, they, and scholars after them, distinguished components of this law which came to be known in Britain as the principles of common law.
So it was that these officers of the peace, through reason, based on their own sense of natural justice, developed the theory of contract wherein the capacity of individuals to create the law governing their private affairs and the jurisdiction of the courts to enforce the obligations they lawfully undertake to fulfil was recognized and upheld.
Cases naturally arose wherein persons contracted obligations on behalf of others. The courts were therefore required to distinguish the actor from the author of the contract. From these cases, the principle of authority was conceived wherein persons were recognized to be vested with the authority to govern themselves and their possessions. The courts determined that the author can circumscribe this authority in a mandate to constitute a representative with the lawful power to contract on their behalf, thereby legally binding the author to fulfil the obligations set out by the consent of their representative.
The role of Parliament, finally determined after intense debate among the best legal minds as expressed by John Locke, is to establish the means for the people to exercise this capacity in public affairs.
In effect, through Parliament, the capacity of individual citizens freely and voluntarily to establish the law governing their private affairs is extended to public affairs to permit the people to determine and consent to the law governing their society.
By democratic election, the people duly authorize their representatives in Parliament to determine and approve the law governing their relations and, by the approval of Parliament, the people lawfully accept the responsibility to respect it.
The means to lawfully restore the rule of Law in Canada
Provinces exist to permit the people to pursue their own local aspirations in accordance with the moral and material values and resources particular to their culture and geography. The laws of the government of Canada apply in common throughout every part of Canada. Every province is obliged to respect this federal law. The provinces are entitled to be represented in the Senate, essentially, to accept to uphold this federal law.
According to the rule of law, the authority of the people constitutes the capacity of our governors. Without our authority, they are legally incapable of exercising our political rights. Without our authority, they do not possess the right to occupy their office.
The people do not elect our members of the House of Commons to represent and protect our local interests in the government of Canada. They cannot confer on their Leader any greater authority than they themselves have been granted by the people. It follows that the Prime Minister of Canada does not possess the authority to advise the Governor General who should represent a province in the Senate; nor can he confide the authority required to lawfully exercise the function of the office of Senator.
The Governor General must be possessed of the people’s undivided authority to sanction the exercise of the powers of the State with the consent of the governed. Without the advice of the Senate, possessed of the people’s local authority, the Governor General cannot possess the authority to exercise the functions of the Office of the Governor General. Furthermore, the Leader of the House of Commons alone does not possess the authority to recommend the nomination of the representative of the Sovereign: the Governor General of Canada, whose most fundamental duty is to broker the harmonious conciliation of the unity and the diversity of Canada. And if the Governor General is appointed pursuant to this recommendation, then he or she cannot be vested with the required authority nor the legal capacity to exercise the Office of the Governor General of Canada.
Section VIII of the Letters Patent constituting the Office of the Governor General of Canada establishes that if the Governor General is incapable of exercising his office, his powers, authorities and functions are devolved to the Chief Justice of the Supreme Court of Canada.
It would therefore be the duty of the Chief Justice of Canada, acting in the interim capacity of “Our Administrator” as defined by these Letters Patent, to restore the rule of law under the Constitution of Canada.
Vincent Pouliot, president
Institute of Responsible Government