VERBATIM Desmond Morton An historical interpretation of the Constitution

In the first instance, asserts eminent McGill historian Desmond Morton, Confederation was primarily a response to the ravages of the US Civil War and the threat of annexation by the United States. “With admirable rationality,” he tells a national conference of law students in City, “the British organized British North America to manage its own affairs.” This included the division of powers between and the provinces in the British North America Act of 1867, not to be confused with the Charter of Rights and Freedoms of 1982.

À l’origine, rappelle Desmond Morton, éminent historien de l’Université McGill, la Confédération se voulait essentiellement une réplique aux dévastations de la guerre de Sécession et aux menaces d’annexion des États-Unis. « Et c’est avec une admirable rationalité que les Britanniques, soucieux de gérer leurs propres affaires, ont alors créé l’Amérique du Nord britannique », explique-t-il ici à des étudiants en droit réunis à Québec à l’occasion d’une conférence nationale. Ces « affaires » englobaient la division des pouvoirs entre Ottawa et les provinces inscrite à l’Acte de l’Amérique du Nord britannique de 1867, qu’on évitera de confondre avec la Charte des droits et libertés de 1982.

here are many historians in our formity of thought was not imposed on and responsibilities. Was there provi- universities who could discuss cadets or their professors. After we had sion for the departure of any of the T the historical evolution of con- been exposed to Stanley in the morn- newly created provinces? How could stitutions in . Shaping my ing, our brains were properly scrubbed there be in the shadow of the cata- thought at a vulnerable age was one of by RMC’s chief political scientist at the clysmic war in our all-powerful neigh- Canada’s leading exponents of the time, Murray Beck, a Nova Scotian of bour to the south? There obviously famous or notorious Compact Theory comparable passion and eloquence. were who sympathized beloved of Québécois nationalists This, I regret to say, was almost the with the Confederate States but they since the days of Honoré Mercier and sum of my exposure to constitutional were not a noisy or prominent force in Judge Thomas Loranger. Why did their historicity until Trudeau and the Canada of the 1860s. views capture the complete sympathy Mulroney decided to use constitution- of Colonel George Francis Gilman alism as their claim to a place in histo- hat war, with over a million feder- Stanley, a High Church Anglican from ry. Isn’t this conference, in and of T al soldiers armed, disciplined and pre-war ? You might as well ask itself, a reminder of how irresistible dispatched by Lincoln to their bloody why George Stanley was an equally fer- constitutional discussion seems to be work, was the biggest single influence vid partisan of Louis “David” Riel, for clever lawyers? Had the Fathers of in shaping Confederation. It told our whose legitimacy he dragged from Confederation created a federation of British governors that no obscurity into the daylight in two equal provinces? How could anyone could ever again be possible. Canada influential books. I always wondered who read the Confederation Debates was not only indefensible; it would be whether Sir John A. Macdonald lost believe it? Was the Senate an irrelevant a fatal trap for any country who Stanley to the Grits after the Old failure? An obvious mistake? Why, believed that an American invasion Chieftain insisted that treason was then, did the Fathers of Confederation could be resisted. With admirable treason and the law must take its spend so much time exploring every rationality, the British organized British course. On a cold November 16th, detail of its creation and functioning? North America to manage its own 1885, Riel mounted a scaffold in Why is every reform fraught with com- affairs, instructed us all to fight to the Regina and fell to his sudden death. plexity and injustice? Were Quebec’s death, wrapped up their military obli- I was not a partisan of Riel nor of interests respected in 1866 or in 1982? gations as neatly as they could and, on Colonel Stanley’s constitutional views. The answer, a rare agreement between November 11th, 1871, marched their Though this exposure occurred at the Beck and Stanley, was yes, at least in garrison at the Citadelle quietly down Royal Military College of Canada, uni- the enumeration of provincial powers to the docks, boarded a ship and

6 OPTIONS POLITIQUES JUIN 2008 An historical interpretation of the Constitution VERBATIM departed, never to return. November was the headline for its third survey. In so many years ago. Nor, for some rea- 11th was, let me suggest, Canada’s some provinces, ministries of educa- son, did my mentors inspire much Independence Day, and not a single tion see no need to teach the subject. enthusiasm for giving judges the power Canadian politician of the era or histo- Here in Quebec, students must pass an to regulate vital features of my life. The rian of the subsequent past, French or exam in history at the end of Grade 10. bulk of Colonel Stanley’s course, as of English, has ever wanted to know The tests I have seen look like a quiz for most such courses in my adolescence, about it. Canadians remained, as we all potential Péquistes, demanding expert was an exposure to the vagaries of the know, endowed with the illusion that knowledge of Quebec’s suffering and grandly named Judicial Committee of somehow we owed the empire a blood humiliations since it all began in 1534. the Privy Council, working its will on tax whenever the British got into a war, History inspires revision. Why the Macdonald-Cartier blueprint for a whether in Egypt, where Quebec’s shouldn’t Honoré Mercier, an oppo- centralized federal Canada with argu- Major Philippe-Omer-Joseph Hébert nent of Confederation when it was ments that obviously owed nothing to detailed knowledge of Was there provision for the departure of any of the newly Canada’s realities and a created provinces? How could there be in the shadow of the good deal to the “states’ cataclysmic war in our all-powerful neighbour to the south? rights” views of a former attorney general of the There obviously were Canadians who sympathized with the Confederate States, a New Confederate States but they were not a noisy or prominent Orleans lawyer named force in the Canada of the 1860s. Judah P. Benjamin, a politi- cal refugee in , died in 1880, or in France and Flanders, negotiated in the 1860s, find it possi- sometimes hired by Oliver Mowat’s where 65,000 of us perished between ble to promote a theory that Canada Ontario for constitutional challenges. 1914 and 1918. November 11th is a had been negotiated as a solemn part- British privy councillors felt free, it day for Canadians to remember. nership of equals, French and English? seemed, to redesign Canada from the This session of this conference asks Did he need historical evidence of any other side of the Atlantic with, on how judges interpret history in consti- such compact outside the hyperbolic occasion, quite a tenuous grasp of tutional decisions. As a “professional phrases uttered by contemporary what was happening here. When historian,” supposedly engaged in politicians anxious to sell the deal to Prime Minister Trudeau displayed a teaching others how to assess history, I suspicious Québécois? passionate impatience to leave a made- admit that I cannot answer the ques- in-Canada Constitution as the memo- tion and perhaps I don’t even think it don’t doubt the powerful attraction rial to his years of power, the rapturous is necessary. My experience in the trade I of a Compact Theory to the smaller excitement in Canada’s higher courts is that we interpret history to suit our of Canada’s two partners. Minorities are and in faculties of law should have own ends, barring only our temptation traditionally suspicious of majorities started alarm bells. I remember think- to create fiction. The study of history and historians of Canada can easily cite ing for a moment that Trudeau might derives sufficiently from the practice of law in that alle- History inspires revision. Why shouldn’t Honoré Mercier, an gations should be evidence- opponent of Confederation when it was negotiated in the based. Or so I have been 1860s, find it possible to promote a theory that Canada had assured, though I find some judicial reasoning more cre- been negotiated as a solemn partnership of equals, French and ative than I would allow English? Did he need historical evidence of any such compact myself to be. How could outside the hyperbolic phrases uttered by contemporary Willie Picton, of recent politicians anxious to sell the deal to suspicious Québécois? memory, have committed six similar murders — (or is it 26?) cases when majorities in Canada have even choose himself to replace Chief without having premeditated them? deserved that suspicion, perhaps most Justice Dickson. Instead of retiring to Even the prosecution has hustled into commonly when Canada goes to war the obscurity of a corner office at appeal before the defence tries to get and we unleash the paranoia that lurks Heenan Blaikie, he would have Picton out of jail. If judges are too conveniently at the heart of most presided over the affairs of Canada Canadians, the Dominion Institute nationalisms. The appeal of such a until he was a full seventy-five years of reminds us that even young compact did not persuade me nor my age. So what if John Turner or Brian Canadians, fresh from school, don’t mentors of its reality when I had my Mulroney moved into Sussex Drive, know our history. “We haven’t a clue” dose of Canadian constitutional history Chief Justice Trudeau and his

POLICY OPTIONS 7 JUNE 2008 Desmond Morton VERBATIM appointees would be signing the deci- sions that governed their choices. If I am a democrat, as I hope I am, this thought did not really please me very much. Perhaps I was and remain an admirer of old things, be they my much-lamented computer or the British North America Act of 1867 and the system of government we have enjoyed ever since. We enjoyed an organic law that saw Canada through its first century and assisted our historic climb from the primitive bigotry, sexism and racism of our binational adolescence. It was suffi- cient to transform us from the Third World poverty our country knew until the Second World War; it need- ed no Clarity Act nor a Supreme Court declaration that, as in India or the late Soviet Union, our constituent parts may negotiate secession, pro- vided they allow their people to answer a clear question with a clear majority.

othing tells me that our judges N will interpret our history any more validly than the imaginative and combative lawyers who appear before them. If I had been trained in the 24-7 law factories that will presently, I hope, give the members of this conference access to a generous living, I might well have stayed up all last night and been able to provide detailed evidence for the misgivings I have inherited from my academic mentors. Instead, I went to sleep to the soothing tones of Peter Mansbridge, confident that if Canada and Canadians could enjoy their future Jack Goldsmith, McGill University as I have spent a lifetime enjoying their McGill historian and author Desmond Morton told a national conference of law students that he remained an admirer of old things, “including the British North America Act and the past, we would remain one of the happi- system of government we have enjoyed ever since.” er countries on the face of the globe and that most constitutional processes could lives into an abyss of death. I am far preparing for the next edition of a remain, as they have been since 1990, a from enthusiastic about this sacrifice war those elders lost. Soyons prudents! phenomenon we can usually ignore. because history seldom tells me that Outside, a journalist asked me my it did much lasting good. I came here Desmond Morton, founding director of thoughts about the passion of young with Philip Shelton’s criticism of your the McGill Institute for the Study of law students for throwing themselves chosen profession, and wondered Canada and Hiram Mills Professor into the seeming abyss of constitu- whether this brutal assault on your Emeritus at McGill University, is the tional innovation. I responded by professional ethics might not have author of 39 books. Adapted from a talk reminding him that my specialty is provided a more significant theme for to the Law Students’ Conference on the study of war. Wars are fought by your national meeting. Instead, to the Constitutional Change in Quebec City in young people, willing to throw their delight of some of your elders, you are January 2008.

8 OPTIONS POLITIQUES JUIN 2008 AN IMPORTANT FACT FOR YOUR CONSIDERATION: “GREENHOUSE GAS EMISSIONS RESULTING FROM DEFORESTATION ARE ESTIMATED TO REPRESENT MORE THAN 18% OF GLOBAL GHG EMISSIONS.”

Stern Review: The Economics of Climate Change, October 2006

With virtually zero deforestation, and the most original, certified, and protected forest, Canada has been a global leader in its commitment to sustainable forest management for some time. The Canadian forest products industry is committed to continual improvement because we agree with this statement by the Intergovernmental Panel of Climate Change: “In the long-term, a sustainable forest management strategy aimed at maintaining or increasing forest carbon stocks, while producing an annual sustained yield of timber, will generate the largest sustained mitigation benefit.”

It’s time for the rest of the world to follow Canada’s lead in sustainably managing forests — the world’s climate depends on it.