Fred Vaughan on the JCPC: Same Old, Same Old

Groan! Another book arguing that the British North America Act (1867) called for a “strong central government”!

It’s said endlessly: John A. and the Fathers of Confederation wanted a central government that would take the lead in defining the new country but their vision was fatally undermined by the evil Brits who served on the Judicial Committee of the Privy Council, Canada’s highest court of appeal until 1949.

Did I say “evil Brits”? Fred Vaughan’s biography of Lord Haldane, recently published by the Osgoode Society for Canadian Legal History, refers to the noteable JCPC judge as “The Wicked Step-Father of Confederation.” (Thanks to Chris Moore for alerting me to Vaughan’s new publication.)

The conventional story is wrong. Macdonald did not envisage a central government that would lord it over the provinces. He wanted a central government that would be strong within the sphere of its responsibilities as described in the constitution. The Fathers use the phrase “strong central government” to indicate that they are not proposing a loose alliance of provinces but a true federation with an exhaustive division of constitutional powers. Each level of government was to be “strong” in its own sphere.

Though as far as I know the Fathers did not use the phrase “watertight compartments,” favoured by the JCPC, it perfectly captures their intentions. The JCPC got it right.

Think of George-Etienne Cartier, friends. He’s leading his people into a union in which French-speakers will be in a minority. He would never have thrown in his lot with Macdonald if he had thought it would weaken the ability of the province of Quebec to protect its way of life. As I argue in the essay appended to G.P. Browne, ed., Documents on Confederation (MQUP), Cartier and George Brown see eye to eye on this matter; neither wants a central government free to meddle in provincial affairs. And yet both speak of the necessity for a “strong central government.” It’s time to rethink the meaning of that phrase as the Fathers use it. To repeat: in my opinion, it’s their way of indicating that the Quebec Resolutions describe a true federation rather than a mere alliance or compact among the colonies.

If you’re making up a reading list of the subject of the JCPC may I suggest that you add: Paul Romney, Getting it Wrong, How Canadians Forgot Their Past and Imperilled Confederation, University of Toronto Press.)

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