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Canada's Founding Ideas Macdonald-Laurier Institute Canada’s Founding Ideas November 2010 Confederation and Individual Liberty Janet Ajzenstat N A MLI The Macdonald-Laurier Institute for Public Policy “True North in Canadian Public Policy” Board of Directors Macquarie Capital Markets Canada; Martin Maurice B. Tobin, the Tobin Foundation, MacKinnon, CFO, Black Bull Resources Inc., Washington DC. Chair: Rob Wildeboer, Chairman, Martinrea Halifax; David Mann, former CEO, Emera International Inc., Toronto Inc., Halifax; Peter John Nicholson, former President, Canadian Council of Academies, Research Advisory Managing Director: Brian Lee Crowley, Ottawa; Jacquelyn Thayer Scott, past former Clifford Clark Visiting Economist at President & Professor, Cape Breton University, Board Finance Canada Sydney. Secretary: Lincoln Caylor, Partner, Bennett Janet Ajzenstat, Professor Emeritus of Jones, Toronto Politics, McMaster University; Brian Treasurer: Les Kom, BMO Nesbitt Burns, Advisory Council Ferguson, Professor, health care economics, Ottawa University of Guelph; Jack Granatstein, Purdy Crawford, former CEO, Imasco, now historian and former head of the Canadian Directors: John Beck, Chairman and Counsel at Osler Hoskins; Jim Dinning, War Museum; Patrick James, Professor, CEO, Aecon Construction Ltd., Toronto; former Treasurer of Alberta; Brian Flemming, University of Southern California; Rainer Erin Chutter, President and CEO, Puget international lawyer, writer and policy advisor; Knopff, Professor of Politics, University Ventures Inc., Vancouver; Navjeet (Bob) Robert Fulford, former editor of Saturday of Calgary; Larry Martin, George Morris Dhillon, CEO, Mainstreet Equity Corp., Night magazine, columnist with the National Centre, University of Guelph; Chris Sands, Calgary; Keith Gillam, former CEO Post, Toronto; Calvin Helin, Aboriginal Senior Fellow, Hudson Institute, Washington of VanBot Construction Ltd., Toronto; author and entrepreneur, Vancouver; Hon. DC; William Watson, Associate Professor of Wayne Gudbranson, CEO, Branham Jim Peterson, former federal cabinet minister, Economics, McGill University. Group, Ottawa; Stanley Hartt, Chair, now a partner at Fasken Martineau, Toronto; The Macdonald-Laurier Institute for Public Policy exists to: • Initiate and conduct research identifying current and emerging economic and public policy issues facing Canadians, including, but not limited to, research into defence and security, foreign policy, immigration, economic and fiscal policy, Canada-US relations, regulatory, regional development, social policy and Aboriginal affairs; • Investigate and analyse the full range of options for public and private sector responses to the issues identified and to act as a catalyst for informed debate on those options; • Communicate the conclusions of its research to a national audience in a clear, non-partisan way; • Sponsor or organize conferences, meetings, seminars, lectures, training programs and publications using all media of communication (including, without restriction, the electronic media), for the purposes of achieving these objects; • Provide research services on public policy issues, or other facilities, for institutions, corporations, agencies and individuals, including departments and agencies of Canadian governments at the federal, provincial, regional and municipal levels, on such terms as may be mutually agreed, provided that the research is in furtherance of these objects. Canada’s Founding Ideas November 2010 Confederation and Individual Liberty By Janet Ajzenstat 4 Executive Summary Confederation and Who’s Who Individual Liberty On the Cover 5 Sommaire hese eight portraits depict statesmen and La Confédération et les libertés thinkers discussed in the text who played individuelles T an important role in the development of Canada’s Constitutional guarantee of responsible 6 Preface liberty under law. The first reader? who correctly identifies all eight in an email to john.robson@ 8 Introduction macdonaldlaurier.ca (listed from smallest to 10 What They Read largest on the cover) wins a copy of the Institute’s first book,The Canadian Century: Moving Out 11 How We Lost Our History of America’s Shadow, an autographed copy of 12 The Battle for Inalienable Managing Director Brian Lee Crowley’s Fearful Rights Symmetry: The Fall and Rise of Canada’s Founding Values and a $50 gift certificate at Chapters. The 14 The Canadian “Imaginary” first five readers to get at least seven right, other 15 The Consent of the Governered than our grand prize winner, will get copies of The Canadian Century, Fearful Symmetry and our 17 What Do Canadians Have in first two policy papersFree to Learn and Citizen of Common? One, and the first five to respond with six or fewer 18 Where to Find the Documents correct answers will receive a copy of The Canadian Century. Our decision as to the winners is final. 18 About the Author The authors of this work have worked independently and are solely responsible for the views presented here. The opinions are not necessarily those of the Macdonald-Laurier Institute for Public Policy, its Directors or Supporters. EXECUTIVE SUMMARY CONFEDERATION and Individual Liberty oo many people believe that the Fathers of of Parliamentary government, The Constitution of England. Confederation were not learned or philosophical; They studied political theory and political history, and many shrewd enough to do a “deal,” the story goes, were familiar with the Federalist Papers and the American they were political operators not political thinkers. constitution, New Zealand’s early federal experiment, European political arrangements, and the dramatic history of the struggle TWe are told not to seek in their words a principled defence between Stuart monarchs, Commonwealth Puritan radicals and of parliamentary government or federalism, let alone an Parliament that culminated in the “Glorious Revolution” and argument that our British constitutional heritage was well the full restoration of the English Parliament in 1688. designed to preserve our individual liberties. We are certainly They also knew their own history and discussed it with depth not encouraged to consult them for insight into contemporary and intelligence. Canadians told of the 1837-38 rebellions, problems the way Americans still ponder the Federalist revisited debates over the 1840 legislative Union of Upper and Papers. This conventional wisdom misrepresents Canada’s Lower Canada, and the subsequent history of that union. Lower founders and the political system they created. Canadians drew lessons from life under British rule before and In fact, the 33 men who drafted Canada’s constitution after the granting of a representative assembly in 1791. George- at the Quebec Conference of 1864, and the hundreds who Etienne Cartier was just one speaker to wax eloquent on the then debated the Quebec scheme in colonial parliaments, virtues of British political institutions and their protection of whom we may call collectively our founders, are an eloquent individual freedom. And many debaters cited Lord Durham’s source of information on Canada’s founding and an excellent Report of 1839 on responsible government, including his measure of British North American opinion. And reading the thoughts on the political executive, the second chamber, and ratifying debates leaves no doubt that Canada’s founders were the individual legislator. well versed in the arguments of the British Enlightenment, Somehow this story was forgotten, or misrepresented, understood the idea of the social contract, and were determined especially in the 1970s and 1980s. In the name of national to secure the rights and liberties of British North Americans pride we were told we had nothing to be proud of, that neither on a permanent basis. the process nor the outcome of the Confederation debates bore Their conception of “rights” corresponds most closely comparison with the sorts of elevated political arguments that with the contemporary term “civil liberties.” Uninterested in have taken place over the years in other countries from the present-day positive rights, our founders were determined to United States to England to France. In the end we got a story limit government interference and protect individual freedom that was as sad as it was inaccurate. and responsibility. When they spoke of rights they had in When we reject received wisdom and take the time to review mind freedom from arbitrary arrest or detention, freedom of this debate, we have every reason to take pride in our true speech and thought, freedom of worship, free elections, and founders: well-read, intelligent, clear and forceful speakers. above all, freedom from oppression by any authority, even if And we have every reason to take pride in their work. For we democratically elected. find that Canada stands on stronger and more philosophical They had ample differences within this framework, and foundations, far more steeped in a concern with liberty, than their words remain interesting and important to this day. They academic and popular tradition now suggests. We have every read and cited John Locke, William Blackstone, Thomas reason to be proud of those whose minds and energies gave us Hobbes, Edward Coke, Edmund Burke, John Stuart Mill and Canada, and of the system of Parliamentary self-government at even Jean-Louis de Lolme’s now sadly neglected defence its political core. • Canada’s Founding Ideas November 2010 • 4 SOMMAIRE LA CONFÉDÉRATION et les libertés individuelles es Pères de la Confédération sont communément Thomas Hobbes,
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