Canada Day 2022
Conception of Rights in Canada’s Constitution
The conception of rights enshrined in the current Constitution of Canada dates back to the days of the British conquest and rebellions against it. It is a conception that enshrines and protects the rights of the Crown with institutions, values, aims and practices established for that purpose. Before that, the French Crown also imposed laws and practices in defence of private property which also contributed to shaping the country’s future.
In order to understand the conception of rights enshrined in the Constitution it is necessary to look at the conditions which prevailed at any particular time, how the ruling elites dealt with them, in whose interests they intervened and the results of the intervention.
For instance, between 1663 and 1673, under the tutelage of King Louis XIV of France, some 800 young women were sent to what was then called New France “to marry, found a home and establish a family to colonize the territory.” What is often not told is that any of the men of European descent who were joined to Indigenous women and rejected this edict were deprived of their property. Refusing to succumb to unjust laws, French and Scottish fur traders moved west and joined their lives to those of the Cree and Anishinabe (Ojibway). Their descendants formed a distinct culture, collective consciousness and nationhood in the Northwest. They established distinct Métis communities along the fur trade routes which were also brutally attacked by the colonial settler state to deprive them of their lands and way of life.
The colonial state used racism to divide the peoples from the get-go, declaring the Indigenous way of life as devil-inspired and the Indigenous peoples to be the enemies of the aspirations of the settlers to establish homes, farms and communities. The British policy of divide-and-rule was at the basis of the conception of rights which enshrines private property and puts all decision-making power and the monopoly on the use of force in the hands of an elite. This elite usurps power for purposes of enriching themselves at the expense of all others. So long as the settlers served their purpose, all the better but no sooner the peoples united against injustice, all have been dealt with brutally no matter who they are.
The republican conception of rights put forward by the Quebec Patriots as well as the reformers in Upper Canada in the mid-1800s are another case in point. The British opposed this conception which called for vesting sovereignty in the people no matter their national origin. The British brutally suppressed the rebellions and denied any conception of rights which would vest decision-making in the people.
Meanwhile, to understand the conception of rights imposed by the British in the Constitutions of 1840, 1867 and 1982, it is necessary to see what the conditions reveal today. For instance, conditions today show that the incorporation of the Royal Proclamation of 1763 into the Constitution 1867 made the Indigenous peoples wards of the Crown and designated all their lands Crown lands.
We go into the past to enrich our ability to solve problems and open society’s path to progress today.
In this regard, CPC(M-L) takes the approach to the study of history and political theory in a manner which deals with the relations people enter into and what kind of society this gives rise to. This includes a militant call to oppose attempts to divide the people for purposes of maintaining the status quo, a practice introduced by the British colonialists and upheld by the Anglo-Canadian colonial state established on the basis of carrying out the genocide of Indigenous peoples whose lands were expropriated and everything was done to extinguish their way of life. Despite the Supreme Court of Canada’s verdict that the colonizer’s “doctrine of discovery” known as terra nullius (that the land belonged to nobody prior to European assertion of sovereignty) never applied in Canada, “as confirmed by the Royal Proclamation (1763),” the fact remains that what is called the colonial settler state — to distinguish it from a colonial state which did not import people to settle the land but used the local people to serve the colonial power — did not consider Indigenous peoples to be human beings. It made them wards of the state with no names and set a course of cultural genocide to extinguish their way of life. This led to what can only be called crimes against humanity and acts of genocide which carry on to this day. The treatment of the Indigenous peoples informs the notion of rights contained in Canada’s Constitution. To understand the Constitution requires recognizing the truth of the relations between the racist Anglo-Canadian state and the Indigenous peoples.
So too the suppression of the Métis Nation striving to declare nationhood in Manitoba which the ruling elite used to give rise to the Northwest Mounted Police and then the Royal Canadian Mounted Police. The conception of rights which are privileges and are given and taken away by “the Crown” at its sole discretion is a medieval remnant incorporated into the Constitution to underscore the division of the polity between those who govern and take all the decisions on the basis of the self-interest of the person of state and those who are governed and are kept separate, in a subservient position.
An integral part of this history concerns the relations between trappers, voyageurs, fur traders settlers and Indigenous peoples and between them and established colonial institutions of rule, including the Catholic Church in Quebec whose main role was to keep the habitants in thrall, and the relations between the Indigenous peoples and the patriots in Lower and Upper Canada, as well as help they received from American revolutionaries at the time and enlightenment forces in Europe and the Americas.
The struggle of the Patriots in the mid-1800s espoused the most advanced ideas of the time, as did Louis Riel when founding the Métis nation in Manitoba. For instance, in Quebec, the patriots based their nation-building project on the anti-colonial cause, the abolition of the feudal seigneurial system, the granting of citizenship rights equally without distinction as to national origin or belief, gender or other consideration, including to the Indigenous peoples. The Anglo-Canadian state continued to treat Indigenous peoples as non-persons until the 1960s and continues to treat people of Indigenous origin as second class members of the polity to this day. It does the same with all migrants and workers of all origins under conditions of a so-called global labour market which considers human beings to be disposable.
The Quebec Patriots’ Declaration of Independence issued in 1838 called for the constitution of a republican form of government to enshrine those ideals as the law of the land. This cause was akin to the great wars of independence in Latin America and the Caribbean at that time as well as the national movements in Italy and other countries. Related developments in those days led to the formation of the International Working Men’s Association by Marx and Engels in 1864 and, in 1871, to the Paris Commune.
The Patriots fought for institutions consistent with the needs of the times, especially the demand that decision-making power be vested in the citizens of the new republic, not in the British Crown. For this, their rebellion was crushed by the British through force of arms, the suspension of civil liberties, mass arrests, burning of homes, the hanging of 12 Patriots and the forced exile of 64 others.
It should be kept in mind that this was also the era when in the United States the direction was set on the basis of the ideology of Manifest Destiny. It held that “European Americans” — i.e. white people — were “divinely ordained to settle the whole of the North American continent.” The slave state in the hands of white men of property pushed settlers ever further westward towards the Pacific, eventually herding the Indigenous peoples into reservations, engaged in murderous campaigns to wipe them out and has sought ever since to deprive them of their hereditary lands, resources and hereditary rights as well as rights by virtue of being human. All of this spilled over into what was known as “British North America.” The North West Mounted Police (NWMP) was specifically established in 1873 to bring the authority of the Crown to the North West Territories (present-day Alberta and Saskatchewan). Its jurisdiction grew to include the Yukon in 1895, the Arctic Coast in 1903 and northern Manitoba in 1912. In 1904 King Edward VII added the word Royal to the NWMP which then subsequently became the Royal Canadian Mounted Police (RCMP).
The conception of rights contained in the Constitution of the country called Canada does not protect anyone from the ongoing assault on the hereditary and human rights of Indigenous peoples and the global anti-social offensive which treats the peoples of all origins and occupations as “disposable” and those who resist as criminals. This is so because there is no way to sort out conflicting interests in a peaceful manner which advances nation-building. Societies are under constant attack today. The saying applies “If injustice is law, resistance is duty.” It is not a matter of laws and rules. It is a matter of a just cause and social responsibility to intervene for justice, for rights. Human agency is intervening to affirm rights. It is pro-active and not primarily a matter of being reactive to laws and rules imposed by the state which to this day is based on the anachronistic definition of rights enshrined in the Constitution, including the Charter of Rights of Freedoms added in 1982.
The need for the political movements of the people to take up the work for a modern constitution cannot be overemphasized. Only the working people have an interest in enshrining the rights which belong to all by virtue of their being. Establishing cohesion within the body politic around the independent politics of the working class is urgently needed to open a path to progress and avert the dangers which lie ahead as a result of the use of force to impose the will of the Crown in the name of high ideals.