May 2010

In 1867, when British colonies in North America united into a single country, the British Parliament issued a birth certificate, the British North America (BNA) Act. The BNA Act was a constitution for the new Canada, setting out the basic structure of government and law, and making it explicitly clear that the Canadian parliamentary system would be based on British principles. Great Britain was the mother country, the model on which Canadians expected their new state to grow and develop.

The BNA Act was made in Britain, but it was written by Canadians. The politicians who brought British North Americans together drafted their constitution before it was submitted to the Parliament in London for approval. Having watched the neighbouring Americans fight a terrible civil war in the 1860s, the founders of Canada were determined to create a strong central government that could take charge of events and give leadership, discipline, and cohesion to a young country.

Yet Canada consisted of distinct provinces that had all compromised to find common ground in 1867. Canada’s first prime minister, John A. Macdonald, would have preferred a single national government, but he accepted the need for separate provincial jurisdictions as well. The BNA Act provided for a federation, with political power divided between the national government in Ottawa and the provinces.

But it did not parcel out the duties of government equally. Ottawa was given a broad responsibility for the “peace, order and good government of Canada,” as well as control of 29 specific areas of administration, including defence, shipping, and trade. The provinces had command of schools, hospitals, roads, and other subjects that were closer to people’s everyday concerns.

Macdonald described the BNA system as “a general government and legislature for general purposes and local governments and legislatures for local purposes.”

That is what Macdonald planned, but that is not what happened. The BNA Act was open to interpretation. Provincial leaders vigorously promoted the interests of their provinces, which they insisted went beyond a narrow reading of the BNA document. They often appealed to the Judicial Committee of the Privy Council, the British Empire’s highest court where the British judges sided with the provinces, expanding the scope of provincial rights. Responsibilities such as health and education, given to the provinces by the BNA Act, also took on more importance as the years passed, further increasing the role of the provinces in the lives of Canadians.

Power at the centre did not disappear. Particularly in times of crisis, such as war or economic depression, Ottawa asserted itself as the government that mattered most to Canadians. It became the most important of the unwritten rules of Canada’s constitution that the relationship of the national government with the provinces was a complex balancing act, under constant negotiation.

Canada’s connection to Great Britain proceeded in the same way, as a delicate bargain between competing impulses. Canadians took immense pride and comfort from their close and continuing association with Britain and its empire, but they also wanted to shape their own destiny and forge their own way in the world. The flexible Canadian constitution, made up of the BNA Act, Canadian and British laws and judicial rulings, and the unwritten rules built up over decades, evolved as Canada moved cautiously away from Britain and towards a separate identity.

By the early 1930s, Canada was prepared to take a major constitutional step forward. Until that time, Canadian law was tangled up with British law, with Canada the junior partner. The British could, and sometimes did, strike down any Canadian law that conflicted with British legislation. The Statute of Westminster of 1931, a British act of Parliament, established Canadians’ freedom to make laws without Mother Britain looking over their shoulder. Canada was a British colony no more, said Prime Minister R. B. Bennett.

The Statute of Westminster left two important matters unresolved. The Judicial Committee remained the top court for Canadian constitutional cases. Not until 1949 did Canada’s Supreme Court truly become supreme as Canadians’ final court of legal appeal.

The 1931 statute also kept the BNA Act in Britain, because Ottawa and the provinces were unable to agree on how to amend it. Without this, there was no point in having it as a Canadian law. The country’s most important constitutional document would be frozen in time, impossible to change when circumstances changed. Amendments to the BNA Act continued for many more years to be made by the British Parliament, acting on Canada’s behalf.

A half century after the Statute of Westminster, the Constitution Act of 1982 brought the BNA Act home, along with a series of amending formulas and a Canadian Charter of Rights and Freedoms.

It had been a long wait.

Norman Hillmer is Professor of History and International Affairs at Carleton University. Further Reading: Eugene Forcey, How Canadians Govern Themselves, available on the Library of Parliament website, and Robert J. Jackson and Doreen Jackson, Canadian Government in Transition (Toronto: Pearson Prentice Hall, 2006) have further information on the British North America Act, 1867, and the division of powers between the national government and the provinces.

Next Instalment: The Constitution Act, 1982

The Canadian Experience is a 52-week history series designed to tell the story of our country to all Canadians. Sponsored by Multimedia Nova Corporation and Diversity Media Services/Lingua Ads partners, the series features articles by our country’s foremost historians on a wide range of topics. Past articles and author bios are available at http://www.cdnexperience.ca. The Canadian Experience is copyright © 2010-2011 Multimedia Nova Corporation.

#6 The Canadian Constitution

by Norman Hillmer