149th Anniversary of Confederation
A Modern Constitution Is a Historic Necessity
Canada Day 2016 marks the beginning of one year of preparation to mark the 150th anniversary of Confederation in 1867. All the developments in the recent history of Canada point to the urgent need to provide Canada with a modern constitution that vests sovereignty in the people instead of a foreign monarch, gives expression to democratic renewal, provides equal rights and duties for all, and which emanates from the people themselves, instead of being imposed on them by a privileged few who hold power. Recent history also points to the need to renew confederation on the basis of the sovereign will of the people to stop the nation-wrecking of those who have submitted the country to the decision-making power and empire-building of global monopolies, supranational trade and U.S.-led military alliances and accords.
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.
History calls on the peoples of Canada, 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 still considers the Queen of England to be 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 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 modernizing of the constitution is not something the present ruling elite 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 149 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 repatriation 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 this right.
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 had 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 to stigmatize anyone contesting 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.
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. Some in the Parti Rouge were enticed into the politics of division while those who opposed the division and continued the republican ideas of the Patriots were persecuted, isolated, imprisoned, left stranded and even ostracized 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 of 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 directed against the privileges and stranglehold of the ruling clique 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 speaking other languages and of other origins as part of the nation of Quebec or the Indigenous peoples. The motion introduces a diffuse notion of Québécois without a defined territory but rather 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.
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 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 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 with his 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. This extends from the rebellion against colonial control and iron grip of the rich merchants of the Chateau Clique in the 19th century to the supranational economic and military decision-making bodies such as NAFTA and NATO in the hands of the most powerful global monopolies and empire-builders of today.
The people are aware that the deliberate silence of the Justin Trudeau Liberals on the issue of Quebec is the seed of tomorrow’s hysteria and crises because it originates in the obstinate refusal to recognize Quebec’s right to self-determination and the people’s right to be and to govern themselves with modern institutions. 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 movement for the affirmation of Quebec’s sovereignty, whether in the form of a referendum on independence or in the form of a refusal to adhere to the colonial Constitution, contributes to opening the door to the progress of Canada and Quebec. It calls into question the outdated and self-serving constitutional arrangements of the empire-builders of 1867 and how those arrangements oppose nation-building today. The movement to affirm Quebec’s right to be is joined by the movement of the Indigenous peoples to end colonial injustice, guarantee their rights and establish nation-to-nation relations so as to solve their own problems of nation-building, and by the people all across Canada demanding their rights that belong to them by virtue of being human.
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 twenty-first 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 the Americas — Turtle Island — since time immemorial. This negation of rights must be negated if justice is to prevail and nation-to-nation relations 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 unprincipled pragmatic liberal line stands against the necessity to recognize the hereditary rights of the Indigenous peoples. Prime Minister Justin Trudeau’s senior Assistant Deputy Minister for Treaties and Aboriginal Government Joe Wild expressed this line on June 4. He was discussing ways to “breathe new life” into the Canadian Constitution regarding Canada’s relations with First Nations and their sovereignty. Wild 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. 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” and the “fight against terror.” This has occurred under the bankrupt notion of a need to balance rights and security when in fact people have rights by virtue of being human under all conditions and the state is obligated to guarantee those rights.
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 Lord Durham representing the colonial police power dictated 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 war agenda 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, and communities such as the Muslim community are being 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 global private monopoly interests. They have become instruments of decisions made on a supranational basis.
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 monopolies. They do not recognize any jurisdiction or limitation on their monopoly right and striving for domination and empire-building. 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 energy, health care payment transfers, monies for infrastructure spending and many other issues.
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 Canadian working class and other social classes and strata should seize the occasion of the preparations for the 150th 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 put the vestiges of 19th century empire-building in the dustbin of history and organize for a modern constitution and a free and equal union of sovereign peoples whose rights are recognized and guaranteed.
