Constituting Canada


Review of The Constitution of Canada: An Introduction to its Development and Law, by W.P.M. Kennedy, introduction by Martin Friedland

Oxford: Oxford University Press, 1922, reissued 2014

W.P.M. Kennedy, the first dean of the University of Toronto Law School, probably would not be hired there today. As we learn from Martin Friedland’s sparkling introduction to the reissue of Kennedy’s 1922 classic, this important figure in Canadian legal history and scholarship had not even a verifiable law degree to his name, even though the university calendar recorded him as holding an LL.B.

Today, the merest hint of puffery of academic credentials is a serious matter. But those were different times in the academic world, as Kennedy’s peripatetic journey to prominence indicates. Born in Ireland to a Presbyterian minister, he left home at 14, and graduated as a gold medalist in history and English literature from Trinity College Dublin. He subsequently spent time at a monastery in England and on the margins of Oxford University. Through his written publications he established a reputation as a formidable Tudor scholar. Yet academic positions in England were evidently impossible to come by.

In his mid-30s Kennedy moved to Nova Scotia, where he taught briefly at St. Francis Xavier College before leaving in mysterious circumstances – perhaps under a romance-tinged cloud – for St. Michael’s College at the University of Toronto. Although he eventually became a member of the university’s history faculty he fell out with the other members, probably because of a relationship with a student, and found himself consigned to the political economy department where he was downgraded from professor to lecturer.

Political struggles in that department marginalized Kennedy, forcing him to concentrate his focus elsewhere than on history. And so the most influential scholar of Canadian constitutional law in the first half of the 20th century – a man with no formal legal education or training who described his view of constitutional interpretation as a “lay opinion” (427) – came by a strange confluence of circumstances to found one of the country’s leading law schools.

Stranger things have happened, but they probably would not happen today. My generation of legal scholars tends to follow a fixed path through, from and back to academia. In Canada, law school is followed by a prestigious appellate clerkship, several years of lucrative legal practice to pay down debts and graduate work, increasingly in a related discipline such as economics or political science, before one acquires an entry ticket to the tenure track. Spending time in monasteries is not typical. Trysts with students are frowned upon. Careers that meander from history to political economy to law are most unusual.

Interdisciplinarity, nonetheless, is the higher-education mantra of our times. One sometimes has the impression that interdisciplinarity was an innovation of the modern academy. Yet Kennedy’s text traces the historical development of Canada’s constitution and institutions by cutting across the boundaries of law, sociology, political science and history. Kennedy did interdisciplinary work before there was interdisciplinarity.

Good constitutional lawyers have always been alive to sources and influences not found in judicial decisions and authoritative treatises: “Constitutions are not supernatural. They flourish and are successful where they reflect social development, and where the friction in the political machine is reduced to the lowest point” (86). One also wonders, as Kennedy weaves insights drawn from his wide reading and life experience into his narrative, whether an academic produced by the modern academy would produce a work that ceaselessly, thoughtlessly and maybe even carelessly crosses disciplinary boundaries to produce a comprehensive, readable and enjoyable account of constitutional law. Perhaps today’s clear career paths cause us to neglect territory that a wanderer like Kennedy could easily traverse.

Kennedy’s classic text remains relevant today. One of his themes is that Canada’s constitution and institutions cannot be understood in isolation from the country’s history. Take, for instance, the troubled relationship of the French-speaking, civil-law province of Quebec with the Rest of Canada. In the early 1980s, Prime Minister Pierre Elliott Trudeau repatriated the Canadian constitution from the United Kingdom, thereby giving Canadians the final word on constitutional change. Quebec, slighted most notably by a failure to accede to its demand for a right of veto, refused to sign the document, a move with no legal effect but of great political significance. Subsequent rounds of constitutional negotiation and amendment procedure designed to bring Quebec back into the Canadian fold have failed, and there is little appetite currently to reopen the question.

Understanding why Quebecers are suspicious of Anglophone Canadians descended from the “loyalist oligarchy” (128) requires, however, a good grasp of how “race, language, finance and social life mingle with constitutional history” (98). The festering sores that continue to poison Quebec-Canada relations – and, for that matter, the relations in the province between the Francophone majority and the Anglophone and Allophone minorities mostly situated on the island of Montreal – were opened a long time ago. There were many years of just English rule, but relations turned sour when British officials sought to repress “race emotion”, that is, French language and Francophone culture (157). When right-wing Quebec nationalists and sovereigntists unsuccessfully proposed a Quebec ‘Charter of Values’, complete with an Orwellian diagram of the types of religious headwear that would no longer be acceptable in public sector employment, they were harkening back to a centuries-old tradition that has sought to assert a unique Francophone identity on a continent dominated by a culturally and linguistically distinct group.

Equally, an understanding of how life can go on even when noxious sentiments bubble just beneath the surface can only be achieved by appreciating historical context. In the British constitutional tradition, convention is often privileged over the written word as a means of responding to desires for change. Accommodating “two peoples in a unitary system” is a delicate task to which the infinitely malleable common-law constitutional tradition is well suited (281). A constitutional convention that ensures Quebec is represented in the federal cabinet, for instance, is worth several clauses of constitutional text. Written procedures, by contrast, are much more suspect; and it is surely no surprise that Quebec’s primary constitutional grievance relates to an elaborate written procedure for constitutional change in which it is merely one Francophone voice in an Anglophone chorus.

Another delicate task was Canada’s relationship with the United Kingdom. Here the concept of the Crown played and continues to play a key role. Kennedy’s account brings to life the old tension between imperial sovereignty – London’s ultimate control over its dominions and other possessions – and responsible government, a core principle of the Westminster tradition pursuant to which the executive authority is responsible to an elected assembly. How could there be an Empire within which there were self-governing entities?

Throughout, Kennedy questions the then-dominant Austinian theory of undivided sovereignty, a theory that “could not conceive of a divided authority or of a multiplicity of cabinets giving the crown responsible advice” (250) and was thus obviously at odds with the control Canada and Canadians exercised over internal affairs. Responsible government was the seed from which independence grew. By slow, halting steps – “experiments in sovereignty” (431) – fully independent entities gradually emerged from the imperial embrace. An elastic concept of the Crown facilitated this slow and steady progress. The Crown was considered indivisible in the 19th century but by the end of the 20th century it was well understood that the Commonwealth a multiplicity of self-governed realms united by a common constitutional tradition and monarch.

As Kennedy’s account suggests, it would be ahistorical to see these changes as part of an inevitable progression from trading posts to colonies to provinces to federations to nations and to independence. At many different points the Empire could have taken a very different route. World War I is an example on which Kennedy dwells. Formation of a permanent “responsible imperial executive” to which the dominions contributed members was a distinct possibility but a measure the constituent parts of Empire, jealous of their prerogatives, were reluctant to adopt (361). Instead, they opted for a collaborative ad hoc arrangement that served them well in the pursuit of their war objectives but which could be discarded once these had been achieved. Such is the nature of the Westminster tradition, with its preference for organic, incremental change that is a product more of circumstance than of ideology. Similarly, responsible government remains a core constitutional principle across the Commonwealth but in Canada it was forged by a clash of personalities and the party system that now predominates emerged almost by accident.

Placing Quebec and the Crown in historical, sociological and political context as Kennedy so successfully did remains useful, for example, in appreciating a recent constitutional challenge to the federal government brought by two academics from Laval University. [I should disclose that I have worked for remuneration for the federal government on this file but the views expressed here are personal to me.] Their challenge is based on the clause in the repatriated constitution that requires unanimous agreement from the provinces for changes to the “office of the Queen”.

When the members of the Commonwealth agreed at the urging of the United Kingdom to change the rules of succession to the throne – amongst other things, to put males and females on an equal footing in the line of succession – Canada did not pass ordinary domestic legislation but rather had Parliament express its assent to legislation passed by Westminster. For the dogmatic, this move was either unconstitutional or ineffective, unconstitutional because it represented a change to the “office of the Queen” without the necessary provincial agreement, ineffective because only a constitutional amendment could alter the status quo relating to succession. Underpinning the dogma is the conviction that Canada is an independent nation that can no longer rely on the legal effect of laws passed in London. Independence, on this view, is like pregnancy: you are either independent or you are not.

But the “dead hand of theory” (446) rarely exerts a grip on the Westminster tradition, which understands that there are degrees even of pregnancy: one can be heavily pregnant or hardly showing. The federal government’s position is that Canada has long been independent under the Crown, automatically recognizing the Queen as Queen of Canada. Nothing has changed in that regard. Consciously retaining the rule of automatic recognition is as much a mark of independence as boldly striking out on a new path. Although the “steady and continuous shedding of imperial control” of Kennedy’s time has continued, so too has the “emotion and sentiment” that link Canadians to the Commonwealth and a shared constitutional tradition (445).

Canada’s independence was achieved by slow, incremental change in the common-law fashion, not by the sudden emergence of a new ideology to which the body politic had to conform. There was no constitutional moment in the dominions when the bunting was hung out to celebrate independence. It happened gradually, over time, through an organic process that continues today. If there is anything negative to say about the reissue of Kennedy’s The Constitution of Canada, it is that only the first edition was reissued, not the second, published in 1938 after the passage of the Statute of Westminster, an enactment that put dominion self-government on a stronger footing and enabled Canada to push forward towards independence. His accounts of this change and of the Abdication Crisis – “lay opinion”, or not – remain touchstones for Canadian constitutional lawyers. As ever, a Kennedy-esque appreciation of history, society and politics is necessary to understand Canadian constitutional law.

Posted on 23 December 2015

PAUL DALY is Associate Dean and Secretary at the Faculty of Law, University of Montreal, the author of A Theory of Deference in Administrative Law and the editor of the award-winning blog, Administrative Law Matters.