Canada Day 2021
A Modern Constitution for Canada
Is a Historical Need
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, Indigenous peoples and Métis. 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 and territories of what are called 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 at the highest level modern society has attained. 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 former senior Assistant Deputy Minister for Treaties and Aboriginal Government, Crown-Indigenous Relations, 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.” 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.
1. Abya Yala is the term with which the Cuna Indians (Panama) refer to the entire American continent. It means “land in full maturity” and was suggested by the Aymara leader Takir Mamani, who proposed that all indigenous peoples use it in their documents and oral
statements because to call the land with the strange name of New World is not acceptable.
2. June 4, 2017.
(Abridged from article originally published in TML Weekly Information Project Vol. 49 No. 24, June 29, 2019)