June 29, 2019 - No. 24

All Out to Give Canada a Modern Constitution and Definition of Rights

July 1 marks the 152nd anniversary of Confederation. On this date in 1867, the British North America Act, 1867 united four separate colonies of the British Empire in North America into the Dominion of Canada. The Indigenous nations and peoples were made subject to the racist colonial Indian Act and subjected to genocide on a grand scale while the Métis people were also treated on a racist basis and the Métis Nation was ignored. The right of the Quebec nation to self-determination was negated and the Québécois were also targeted for attack. The self-governing state and institutions imposed by the British reaped them great benefits. Besides profiting from the plunder of its resources, Canada paid the bill for the defence of the British empire in both money and manpower which was used as cannon fodder. The British monarch was made the head of state and remains so to this day. It is not a titular position only. By virtue of the British arrangements which Canada inherited, an artificial person of state is created in which sovereignty -- the decision-making power -- is vested. Governments are elected which are said to be representative of the wishes of the electors but they in fact govern in the name of the sovereign which, as the person of state, exists above them and is said to represent the national interest. The parliamentary website says:

"The Crown plays a key role in Canada’s parliamentary system of government. All executive authority is understood to derive from the Sovereign, who is Canada’s formal head of state. The state is embodied in the Sovereign; therefore every one of Canada’s Members of Parliament is required to swear allegiance to the Queen. This is also why the state, in Canada, is often referred to simply as 'the Crown.'"

The British North America Act, 1867 remains the constitutional framework for Canada despite all the changes which have come about since that time, be it Canada gaining its formal independence, the extension of the franchise and distribution of privileges among the elite from time to time, the development of a socialized industrial base, and a powerful, educated working class hailing from every corner of the world taking its place across the land.

This itself requires serious thought. After more than 150 years, two world wars and the end of the bipolar division of the world, the Constitution and the definition of rights flowing from it need to be brought on par with the needs of the times. Far from recognizing this, the Trudeau Liberal government launched a program on the occasion of the 150th anniversary of Confederation in 2017 to "celebrate our common values, our achievements, our majestic environment and our place in the world." This program promotes a neo-liberal agenda at home and abroad and has led to the further integration of Canada into the U.S. war machine. The government's programs to promote "diversity and inclusion, reconciliation with Indigenous peoples, environment and youth" have been shown in practice to be meaningless or a self-serving means of using high ideals to cover up an anti-social agenda. This year, a grand party is being organized on the same day the so-called pre-election period begins. It is all about promoting what the Liberal government sees as its achievements in the last four years in office for purposes of getting re-elected. It is all done in a manner which suggests that those who espouse a different vision do not share Canadians' "common values." Meanwhile the Conservatives and other parties which form the cartel party system will complain about the Trudeau Liberals' access to the Canada Day platforms for self-serving purposes.

The Communist Party of Canada (Marxist-Leninist) takes this occasion to promote its work for democratic renewal. It calls for the modernization of the Constitution based on the principle that rights belong to us by virtue of being human and the need for a free and equal union between Quebec, the Indigenous nations and the rest of Canada.

CPC(M-L) emphasizes that this is an historic task, not a matter of a policy choice. It is required so that the working people who produce all the wealth can take the centre stage of history and carry out the changes required to overcome the problems facing the society in the spheres of the economy and the natural and social environment.

To be kept informed about the activities and writings of CPC(M-L) in the coming year, email office@cpcml.ca.

For Your Information

A Modern Constitution for Canada

A modern constitution for Canada must end the colonial injustice suffocating the Indigenous peoples and implement the principles of nation-to-nation relations. It must recognize Quebec's right to self-determination, provide guarantees for citizens and residents of the rights they possess by virtue of being human, and set the stage for the democratic renewal of the political process so that the peoples of Canada can directly decide the matters that concern them and affect their lives and the lives of peoples in other parts of the world affected by Canada's foreign policy.

History calls on the peoples of Canada and Quebec and the Indigenous peoples to establish modern arrangements amongst themselves based on a free and equal union of sovereign entities. On this basis they can face the challenges of the 21st century with the people recognized as sovereign and in control over decision-making, the institutions of the state and the direction of the country.

Where Sovereignty Is Vested

The Constitution of Canada based on the 19th century arrangement of the British North America Act (BNA Act) still considers the Queen of England the sovereign of Canada and its head of state. The document A Consolidation of the Constitution Acts 1867 to 1982 provided by the Department of Justice stipulates, "The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen." When the BNA Act, an act of the British Parliament was patriated to Canada in 1982, then-Prime Minister of Canada Pierre Trudeau, along with the provincial premiers, did not see fit to remove this anachronism from the fundamental law of the land. Again, during the talks that led to the Meech Lake Accord of 1987 and in the report on the consensus between the Prime Minister and 10 Premiers that led to the Charlottetown Accord of 1992, no recommendation was made to repeal this clause.

A change from sovereignty residing in the monarch to sovereignty residing in the people is not a minor one but a radical departure from the rule of the few in their narrow interests over the many, to the rule of the many in the broad public interest. It is not possible to have a modern constitution consistent with the aspirations and demands of the people at this time in history without a clear affirmation and definition that the people are sovereign. The sovereign power sanctions everything fundamental in terms of the law of the land and everything that emanates from it.

This anachronism has not been removed because the sovereign power of the state has been transferred to the Prime Minister and Premiers as Queen in Parliament, the Legislatures and National Assembly of Quebec. Keeping the Queen of England as the formal titular head of state allows the ruling elite to hide this fact. The authority of the prime minister and premiers is absolute in the English tradition of concentrating power in the Crown-in-Parliament.

When the Prime Minister or Premiers say they have a mandate to rule for an allotted time frame, legally the Canadian Constitution allows them to do so in an absolutist manner within the separation of the federal and provincial powers. Were the Constitution to declare that sovereignty resides with the Canadian people, then it would have to stipulate the rights and duties the people grant their governments, and how the governments are to be chosen by and accountable to the people. A change in this regard would necessarily mean recognizing and establishing in law that the people are sovereign and creating the legal means to enable them to be so. This formidable epoch-changing modernization of the Constitution is not something the present ruling elite and their cartel political parties are either willing to accomplish or capable of doing.

A democracy that does not provide the citizens of the country with the means to exercise control over the policies and decisions of the elected bodies according to the fundamental law they themselves have enacted, is a form of authoritarian and absolutist rule.

The constitutional arrangements of the last more than 150 years have never vested sovereignty in the people. On the contrary, Confederation in 1867 was a power-sharing arrangement between Britain and the local ruling elite and concerned itself mainly with the division of powers between the central government and the provinces. The promise to submit the agreement that united four provinces into a dominion for the people's approval was quickly abandoned when it became clear that it would have been rejected. Neither the 1982 patriation of the Constitution and addition of a Charter of Rights and Freedoms nor any of the changes made since have overcome the fact that the Constitution of Canada does not emanate from the people and that Confederation did not permit a free and equal union of sovereign peoples.

Quebec Is Said to Be One of Two "Founding Nations" of Canada
But Is Not a Signatory to the Constitution Act of 1982

Quebec is not a signatory to the Constitution Act of 1982 as a result of the obstinate refusal of the ruling elite to recognize its right to self-determination. Attempts to sort out Quebec's place in Confederation have failed time and again because all have sought to maintain the anachronistic Anglo-Canadian state arrangements which refuse to recognize Quebec's sovereignty.

One of the main obstacles to the resolution of the place of Quebec in or out of Confederation, and a practical means used to deprive the people of Quebec of their rights over this entire period, is the following: from the outset, the aspirations of the people to take control of decision-making has been eclipsed by the imposition of divisions based on considerations of origin, language or religion. It began with the Durham Report of 1839, which declared that the problem in Canada was the emergence of a "mortal hatred" between "two races, the French and the English."

Durham's assertion was a deliberately false representation of what had taken place during the Rebellion of 1837-1838 against British rule in Lower Canada. It was an application of the famous British empire-building strategy of divide and rule. The same was done a few years later in India. The British empire-builders proclaimed that the problem in India was that the Muslims and Hindus hated each other. In actual fact Indians of all origins and religions united against British rule in the War of Independence of 1857. The big lie of hatred amongst the people permitted the British colonialists to present themselves as the peacemakers and spread the empire-builders' doctrine of tolerance. Justin Trudeau invokes tolerance in a similar manner today. This kind of thing stigmatizes anyone who contests the present constitutional arrangements as intolerant and backward.

To ensure that the Canadian colonies were seized by resentments based on ethnic and language differences, the Durham Report openly recommended the assimilation of French Canadians, whom it called "a people with no literature and no history." From this self-serving and anti-people perspective, the British empire-builders imposed a legislative union of Upper and Lower Canada and a factional system of party government. This set the stage for institutionalized politics of fomenting antagonisms amongst the people and dividing them along party lines, based on their alleged values.

The Liberal Party of today is born out of a division of the Parti Rouge created by the Patriots to pursue their cause following the crushing of the Rebellions of 1837-38. Some in the Parti Rouge were enticed into the politics of division while those who opposed the division and persisted in upholding the republican ideas of the Patriots were persecuted, isolated, imprisoned, hung, left stranded, ostracized and ex-communicated by the Church, their writings forbidden to be distributed and read. The champions of the politics of division went on to create the Liberal Party of Canada following Confederation.

The fight for a republic in Lower Canada against the undemocratic rule of the colonial power and its local ruling elite -- the Chateau Clique -- comprised of rich and powerful merchants, had united all democratic-minded people, whatever their origin. Their struggle was accompanied by a similar uprising in Upper Canada, led by William Lyon Mackenzie and directed against the privileges and stranglehold of the ruling clique there, called the Family Compact.

The politics of division has been used ever since to weigh down the people of Quebec and act as an instrument of oppression of the Quebec nation, with adherents both inside and outside Quebec and even inside and outside the nationalist movement. The motion adopted in 2006 by the government of Stephen Harper "recognizing the nation of Quebec" asserts: "This House recognizes that the Québécois form a nation within a united Canada." The motion confines the nation of Quebec to an ethnic group whose language is French. The motion does not include people who speak other languages and who are of other origins as part of the nation of Quebec. Nor does it uphold nation-to-nation relations with the Indigenous peoples whose unceded territories have been inhabited. The motion introduces a diffuse notion of Québécois without a defined territory, one comprising separated communities across Canada of French Canadian descent. In this convoluted framework, the "nation of Quebec" can never be conceived as sovereign and having the right to self-determination up to and including the right to secede from Canada. As in any marriage, only a free and equal union can hope to flourish.

To confine the notion of Quebec to an ethnic group of Québécois was also the strategy used by Pierre Elliott Trudeau to deny the existence of the nation of Quebec and the people of Quebec their national rights. In the 1960s, Pierre Trudeau proclaimed nationalism to be "backward" and an enemy of the modern state, on which he imposed his own self-serving irrational definition of a nation. He claimed the nation of Quebec did not exist but was simply a large ethnic group within Canada. "Biculturalism" was introduced as the official policy of the Canadian state as a means to circumvent and undermine the demands and aspirations of the nation of Quebec and Indigenous nations and to weaken the unity of all the peoples of Canada and Quebec and of Indigenous descent and their demand for new arrangements capable of resisting the empire-building of U.S. imperialism.

After the October 2015 federal election, Justin Trudeau applied a similar conceit to Canada saying, "There is no core identity, no mainstream in Canada. There are shared values -- openness, respect, compassion, willingness to work hard, to be there for each other, to search for equality and justice."

As concerns Quebec, Justin Trudeau has said on several occasions that "nationalism is an old idea from the 19th century" and is based on "a smallness of thought." He further claims that Canada is "the first postnational state." This desire of Trudeau the younger that Canada be a "postnational state" can be set within the perspective of Trudeau the elder's assertions of "backward nationalism" in the 1960s and 1970s and his prejudice equating nationalism with small-mindedness. The attack of father and son Trudeau on what they call narrow-minded nationalism boils down to an attack on the right of the people to build their decision-making power at their level against the concentration of power in the hands of the privileged few which is today exercised on a supranational level within the neo-liberal global economy. The fight to affirm this right extends from the rebellion against colonial control and the iron grip of the rich merchants of the Chateau Clique in the 19th century to the striving to end the power of the supranational powerful economic global monopolies and oligopolies of today and their military arms, such as NATO.

The people face an obstinate refusal to recognize Quebec's right to self-determination and the people's right to be and to govern themselves with modern institutions, and the sowing of divisions of all kinds. The ruling elite are incapable of providing Canada with a modern perspective of a free and equal union of the peoples of Canada, Quebec and Indigenous peoples. In the Canadian federalism based on liberal notions of empire-building, people are subjects and the sovereign power resides in the monarch, which today is a front for the concentration of power in the hands of the Prime Minister's Office acting on behalf of the most powerful monopolies centred in the U.S.-led imperialist system of states.

The Necessity to End Colonial Injustice and Negation of Rights and to Establish Nation-to-Nation Relations with the Indigenous Peoples

The Canadian Constitution does not recognize the inherent hereditary rights and treaty rights of the Indigenous peoples and the sovereignty of their nations. The hereditary rights of the Indigenous peoples are their rights to be and live on their traditional territories according to what their own thought material teaches them, how they define their needs and what they require in the 21st century to concretize their rights and give them full expression. The colonial invasion attempted to negate the hereditary and other rights and development of the peoples who have inhabited Turtle Island, Abya Yala and other territories of the Americas since time immemorial. This negation of rights must be negated if justice is to prevail and nation-to-nation relations are to be established in practice, allowing the Indigenous peoples to flourish.

The Constitution does not recognize the fiduciary obligations of Canada as a country that was built through the colonial seizure, occupation and exploitation of Indigenous lands and labour and the genocidal attempt to wipe them out as peoples. The fiduciary obligations must ensure that the highest standard of living is guaranteed to the Indigenous peoples and that all services are provided to them at the highest possible level. Renewing on a modern basis the relationships amongst sovereign Indigenous nations, sovereign Quebec and sovereign Canada -- the sovereign peoples as individuals and collectives -- is critical to the renewal of Confederation and the modernization of the conditions of life itself.

The policies of the Liberal government and the denial of the Conservatives in the Opposition, both of whom are contending to form the next government, are as unprincipled as they are pragmatic. Justin Trudeau's senior Assistant Deputy Minister for Treaties and Aboriginal Government Joe Wild, in discussing ways to "breathe new life" into the Canadian Constitution regarding Canada's relations with First Nations and their sovereignty, said, "There is a notion of sovereignty that can still exist in a way that doesn't threaten the fabric of the nation. There may be a few areas where you've got to be a little bit careful, like raising an army, the border of the country versus other countries, but the rest of it? You could probably figure out ways in which it kind of works out and it doesn't actually do anything that would threaten the standing of Canada as Canada."[1] Wild also said his government will deal with each Indigenous community or nation as a separate entity to try to reach an agreement with each one of them.

Wild's comments indicate the continuation of an oppressive colonial relation which today the Trudeau government reiterates when it says it will carry on making decisions that affect the lives of Indigenous peoples without their consent. The fight of Indigenous peoples for sovereignty on their lands and in all decision-making does not have to answer to a greater power that decides for them and claims that it represents the fabric of the nation. Sovereignty means that the Indigenous peoples decide and their relations with Canada are relations between sovereign entities with the modern relationship enshrined in the Constitution. The renewal of the Constitution must eliminate any vestige of colonial relations and the catch-phrases such as "collaborative approach" etc, which mean in practice the continuation of the status quo.

The demand for a modern constitution is yet another struggle bringing Indigenous, Canadian and Quebec peoples into closer united action for their rights. The struggle of all the peoples is at heart one fight -- the fight for political and constitutional renewal so that the rights of all can be guaranteed in a modern constitution that recognizes, upholds and guarantees the rights of all. The 19th century colonial racist Canadian state and its retrogressive Constitution are blocking the forward movement of society for which all the peoples as individuals and collectives aspire.

The time is now for women and youth, together with all the working people and their allies in other strata and classes across Canada and Quebec to work together with the Indigenous peoples for a profound renewal of the political arrangements in the society and to deprive the authorities of their power to deprive the people of their rights. The peoples themselves must be empowered to take control of their economic, political and social affairs. Constitutional and political renewal is a precondition for true reconciliation amongst the Indigenous peoples, Canada and Quebec.

The Constitution of 1982 Does Not Provide the Rights of Citizens and Residents with a Guarantee

The recent history of Canada has witnessed an all-sided offensive against the rights and freedoms of citizens and residents in the name of "national security," the "fight against terror" and "economic prosperity." In the upcoming election, in the name of alleged "hybrid warfare" of foreign powers against the Canadian elections, rights are negated. In the name of protecting the democracy, freedom of speech is allowed so long as the political police say it is not damaging, based on criteria they claim protects the national interest. The principle that people have rights by virtue of being human under all conditions and that the state is obligated to guarantee those rights does not guide government action. The buyout of the Trans Mountain Corporation and approval of the Trans Mountain Pipeline expansion was done using the prerogative powers of the government, overriding serious environmental concerns and the lack of consent of many Indigenous peoples.

The Canadian Charter of Rights and Freedoms was incorporated into the patriated Constitution in 1982. The Charter contains the provision of "reasonable limits [on rights and freedoms] prescribed by law as can be demonstrably justified in a free and democratic society." The Charter has fallen into crisis and disrepute as "reasonable limits" have been overtaken by the arbitrary powers of the state known as police powers, which dictate those rights the people may or may not have, just as they were dictated by Lord Durham, representing the colonial police power, in the 19th century. This has resulted in an endless arbitrary process of criminalization of conscience and attacks against the struggles of the people who oppose the anti-social offensive and the agenda of war and regime change of the ruling elite on the side of the U.S. imperialists and U.S.-led NATO.

Attacks on rights under the hoax of exceptional circumstances have become the norm, while communities, such as the Muslim community, are profiled and targeted with a vengeance and without a right to recourse. The absence of a constitution that prescribes inalienable rights and makes them enforceable and justiciable is acutely felt all across the country.

Furthermore, the arrangements at the base of Confederation are being destroyed as governments at all levels, whether federal, provincial or municipal, have been taken over by narrow global private interests. They have become instruments of decisions made on a supranational basis, be that of the G7, G20, IMF, NATO or others.

The ruling elite no longer consider the old arrangements of power-sharing between the federal and provincial governments useful for the drive of the most powerful global interests. They do not recognize any jurisdiction or limitation on their monopoly right and striving for domination on a world scale. The contradictions over federal/provincial power-sharing agreements have degenerated into dogfights amongst governments serving definite global monopoly interests. This can be readily seen in the fight over such things as the Carbon Tax and pipelines, health care transfer payments, monies for infrastructure spending and many other issues.

During the past year, the Prime Minister's Office and certain high level government operatives were caught interfering in the supposedly independent Judiciary on behalf of the global monopoly SNC-Lavalin -- a corrupt act by any definition and one that violated the famous separation of powers that supposedly characterizes "rule of law" countries, which the Liberals never tire of declaring that Canada is. They have shown themselves to be serial violators of the rule of law internationally as well, openly conspiring with the U.S. to destabilize and overthrow governments targeted for regime change and, in the case of the Bolivarian Republic of Venezuela, mete out collective punishment to its population in the form of economic sanctions.

The need to renew the Constitution to vest sovereignty in the people and guarantee their rights as the basis of Canadian sovereignty has never been greater. Political and constitutional renewal, far from being outdated or what the ruling elite call "a divisive issue," is central to opening the path to the progress of society. In this regard, the working class and other social classes and strata should seize the occasion of the anniversary of Confederation to examine the evolution of the democratic institutions in Canada, the interests they serve, in what direction they are being taken and what needs to be done to give form and content to the people's aspirations for sovereignty, empowerment and enlightenment, and the right to decide and control those political, economic and social affairs that affect their lives. This initiative is most timely and necessary to chart our destiny in a way that is beneficial to the people.

Constitutions and constitutional matters must not be a monopoly of a ruling elite that use them for their own narrow self-serving private interests. They belong to the people fighting to defend their rights. Canadians want to enshrine and codify in a constitution the modern definitions to which they aspire and which are in conformity with the concrete conditions. The fight to renew Confederation on a modern basis is an instrument in the hands of the people to further the public interest, open a path forward and block the arbitrariness, backwardness, anarchy, violence and wars that the ruling elite have unleashed.

Let us organize for a modern constitution and a free and equal union of sovereign peoples whose rights are recognized and guaranteed.

Note

1. June 4, 2017.

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