H. McD. Clokie

Basic Problems of the Canadian Constitution

Canadian constitutional lore is full of the most amazing paradoxes. The Dominion has a written constitution; but, if the function of a written constitution is to introduce certainty and finality into a polity, this is precisely what Canadas written constitution fails to accomplish. Preposterous as it may seem, no one knows where the constitution begins or ends. The usual answer to a question about the “document” is that the constitution consists of the British North America Act of 1867 and its amendments. The superficiality of this answer is immediately revealed when one asks, Which amendments? The Rowell-Sirois Commission, which made elaborate studies of the background and functioning of the constitutional system, accepts and prints six amendments, the last one of which is dated 1916. Yet this is patently mistaken, for the Statute of Westminster, 1931, placed by the Commission immediately after its “last” amendment, definitely implies at least one later change by its citation of the “British North America Acts, 1867 to 1930.” There is little doubt, too, that the British North America Acts referred to in the Statute of Westminster did not include two of the amendments printed by the Commission (those of 1907 and 1916) and possibly even a third (that of 1875). After meditating on the apparent inaccuracy of the Royal Commission, no one should be surprised to recall that in 1930 the Premier of Ontario (Mr. Ferguson) advanced the view that the number of constitutional “modifications” at that date totalled thirty-three instead of the three about which there is evidently no doubt. Indeed, even the Mother of Parliaments has been misled by one of her Daughter-Parliaments into an erroneous citation of these Acts in her most solemn constitutional enactment, the Statute of Westminster. This is clearly revealed by the belated and surreptitious attempt made in the constitutional amendment of 1940 to tack on one of the earlier amendments omitted from the British North America Acts as defined in the Statute.