Constitutional Crisis Revisited

A year ago Canada was in the throes of a constitutional crisis. There’s been surprisingly little discussion of it in the weekend news. But the collection of essays edited by Peter Russell and Lorne Sossin (Parliamentary Democracy in Crisis; University of Toronto Press) remains a bestseller. Amazon.ca is bombarding me with notices.

Marcos asks for comments on the chapter by Jean Leclair and Jean-François Gaudreault-DesBiens. A glance at the footnotes turns up references to Tocqueville, Judith Sklar, Jeremy Waldron, James Madison, Alan Cairns. My interest is piqued.

But unfortunately, like other contributors to this volume, they conclude that Canadians should take last winter’s crisis as proof that constitutional reform is needed. Canada is suffering from a “democratic deficit.” It may be the old story. If you’re losing the political game, if the votes aren’t tumbling your way, demand an overhaul of the rulebook. But given more time, these authors, Leclair and Gaudreault-DesBiens, could probably do better.

Two observations: On page 112 they argue that, “The House of Commons is … no longer the place where regional issues will be debated.” But the House of Commons is not meant to be a place for debating regional issues. It was never meant to be such a place. As George Brown and George-Etienne Cartier envisaged it, the Commons was to be – exactly – an arena where regional issues were not tolerated. Brown says: “The questions that used to excite the most hostile feelings among us have been taken away from the general legislature and placed under the control of the local bodies [i.e., the provincial legislatures]” (Brown, Canadian Legislative Assembly, February 8, 1865).

Leclair and Gaudreault-DesBiens make the same complaint of the Senate; it does not fulfill its function “as a house of the regions.” But if the Commons was not meant to legislate on regional and particular issues, a fortiori, the Senate. Cartier wanted a solid and effective body of French speakers in both chambers. Securing an adequate number of Senate seats was a priority. But French-speaking Senators would not debate issues of particular concern to French Canadians as French Canadians. No, Cartier as much as Brown wanted to keep French Canadian matters out of the national legislature. He saw in federal union the prospect of introducing the degree of autonomy for French Canadians once hoped for from the Constitution of 1791. To repeat: French speakers in the Commons and Senate were not there to bring the affairs of French Canada to the attention of Parliament. They were there to keep the English from bringing in French matters. They would also, of course in company with representatives from every province, participate in the determination of the federation’s general affairs. (I say more on this matter in my Introduction to G.P. Browne’s Documents on the Confederation of British North America.)

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