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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part VI Constitutional Theory, B Constitutional Pluralism, Ch.43 Canadian Constitutional Culture: A Genealogical Account

David Schneiderman

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

(p. 913) Chapter 43  Canadian Constitutional Culture

A Genealogical Account

Constitutional theory ‘is at an end’, Martin Loughlin claims, once the idea of the ‘political unity of a people’ is abandoned.1 Constitutional theory, for Loughlin, is only possible once the multitude transforms itself into a state with governing authority. It follows that without a cohesive and unitary state—without ‘sovereignty’—there cannot be constitutional theory.2 To divide sovereignty, Loughlin maintains, is to confuse its ‘principle of unity’ with government, which, of practical necessity, is often divided.3

Few Canadians today tell such constitutional stories to themselves. Canada is, instead, more often described as an unrealized constitutional project. Canadian constitutional politics cannot be ‘solved’ by some act of constitutional closure, argues Roderick Macdonald. Instead, Canadians continue to preoccupy themselves with conflicting stories about who ‘we’ are. These debates have, ‘in fact, dominated since the first contacts between Europeans and aboriginals in the 16th and 17th centuries’—they are a ‘recurring rock bottom theme in Canadian political self-definition’, insists Macdonald.4 In which case, we should understand ongoing ‘constitutional wrangling’ as a ‘central component of our shared framing’.5

(p. 914) Loughlin’s story about sovereignty and constitutional unity illustrates well dominant legal theory issuing out of Britain in the late eighteenth and nineteenth centuries.6 It was claimed that there was one undivided sovereign, and conquered Canadiens, Indigenous peoples, and English settlers were all the Crown’s subjects.7 If this reproduced the legal theory of the colonizer, it was not necessarily that of the colonized.8 It also reflects a story that, at its inception, was more complicated than its simple legal narrative suggests. An unsettled state of affairs resulted in continual push back, even resistance, by the governed, requiring continual adjustments, if not concessions, by metropole authorities.9 It might be fair to characterize the situation, following Austin, as one of reluctant but ‘habitual obedience’ to a ‘determinate superior’ on the part of les Canadiens10 and an absence of habitual obedience to claims of English imperium from the bulk of Indigenous First Nations.11

This chapter embraces this unstable understanding of Canadian constitutional thought. Rather than aiming for unrealistic homogeneity, Canadian constitutional theory should aspire to explain constitutional practices that have produced outcomes that are often heterogeneous and pluralistic. This is not to say that constitutional ordering has not sought to impose a single unitary vision on this heterogeneous public. Rather, it is to emphasize that, despite the urge to homogenize and assimilate, that project has, as often, faltered. In its place has emerged a constitutional order that, within limits, has the potential of being more open and inclusive, yet which also requires continual (p. 915) maintenance if it is to endure. This chapter explores this novel Canadian narrative, one that I associate with the idea of constitutional culture.12

Constitutional culture has emerged as a heuristic with which to describe and engage with familiar national constitutional projects. In the United States, it has been conscripted to describe extrajudicial understandings about what the U.S. Constitution means13 and to better explain the contexts within which shifts in interpretation occur.14 In the Canadian context, ‘culture’ is invoked in order to privilege ‘lived experience’ under the Canadian Constitution, rather than on ‘legal concepts’ and idealized legal theory.15 I have called upon constitutional culture to describe widely shared and dominant understandings of the fundamental norms that guide relations between citizens and states and also between institutions of the state.16 In my account, constitutional culture is represented not only in constitutional text and judicial interpretation but also in legislatures, media organizations, business associations, social movements, and other non-governmental entities. These social, political, and cultural forces insert themselves into debates over the meaning and content of constitutional practices and traditions. There will be alternative accounts vying for supremacy, in which case ‘official’ constitutional culture will always be partial and contested. The advantage of such a conception is that it accounts for constitutional change. It also brings into the discussion relations of power that help to define its parameters. Not all participants in a constitutional order, after all, will have equal access to defining its content.17 Instead, we should understand constitutional orders as exhibiting a selectivity that structures power in certain, discrete directions.18 To the extent that it presents a unified front, this unity only papers (p. 916) over division and disagreement that is endemic to most constitutional orders.19 Like the juridical idea of sovereignty itself, constitutional culture exhibits an active forgetting of its genealogy.20

Constitutional culture, if it represents dominant understandings at particular moments, will exhibit both continuity and change over time. In the Canadian case, I argue that contemporary constitutional culture is partly the product of practices initiated by Imperial authorities governing British North America in the eighteenth century. A discussion of Canadian constitutional culture necessitates, then, a return to a past that is partly inscribed into the present. At its inception, Canadian constitutionalism was required to adapt to the presence of multiple others, different from the English settlers colonizing British North America, and it is in this encounter that current practices have their genesis.21 In the eighteenth century, the British ‘stumbled almost unawares’ into a situation where they were required to produce new forms of colonial government for British India and Quebec.22 This is not to say that there was an absence of a normative hierarchy for colonial administrators or that these authorities did not consider it their ‘duty to assimilate’ those considered different.23 There has never been a lack of confidence about the ability of Imperial authorities to absorb foreigners, after all. What is argued is that, in the course of colonizing British North America, Imperial legal authorities were required to adjust their assimilationist ambitions and were, thereby, forced to tolerate a great deal of dissonance. Coercion, after all, does not work so well when one (p. 917) ‘wishes rapidly to assimilate … [those] whose “good will” and enthusiasm one needs’.24 In so doing, Imperial constitutional law had to make do with recognizing the ability of communities of difference to govern and, thereby, make law for themselves. This was the outcome of intercultural encounters that are mostly hidden from the present.25 The object here is to inquire into the genealogy of the constitutional present—to unearth ‘historical struggles’ together with some of the ‘details and accidents that accompany every beginning’.26

In this chapter, I take up three episodes in Canada’s constitutional past that have helped to frame discussions about Canadian constitutionalism in the present day. Each represents moments in Imperial or early Canadian policy. Each is a part of the waves of accommodation and assimilation that are recurring features of the Canadian story and which helped to shape Canada’s constitutional present, namely, contemporary features we associate with federalism, linguistic rights, multiculturalism, and the various ways in which ‘others’ are accorded standing (or denied it) in Canada’s constitutional order.27 These episodes represent ambivalent shifts in metropole ambitions, aspiring to a homogeneous ideal while necessitating some heterogeneity in practice.28

There are, to be sure, other episodes in Canada’s constitutional past that have helped shape Canada’s constitutional present not discussed here, a number of which are of even greater significance. I am of the view that the ones under discussion here are interesting representative samples that are more obscure, if not largely forgotten. Nor do I intend on drawing out linkages between these past episodes and Canada’s constitutional present.29 This discussion is meant only to be suggestive—rendering those linkages more apparent is a task for another day. I am hoping that readers will share the intuition that choices made in the past resonate with practices in the present. Even if Imperial and (p. 918) early Canadian policy was halting, ambivalent, and aspired to homogenization—often exhibiting the features of both coercion and consent—it has resulted, in practice, in the production of a community with a shared, even if differently interpreted, past. The story, then, is not simply a celebratory one of linear progress. Rather, it is one where positions are contradictory and motives often mixed, sometimes lamentable. It is these ambivalent and contradictory motivations in early Canadian policy, helping to generate the conditions for contemporary constitutional culture, which are underscored here.

The first historic episode is introduced in Section 2, where I discuss circumstances confronting the first Governor General of the colony of Québec, James Murray. The new Governor was required to adjust harsh Royal instructions to facts on the ground, resulting in the preservation of Roman Catholic authority in the new colony.30 This reflected a legal regime of tolerance that was unavailable in Britain. In Section 3, I turn to an Imperial policy recognizing the laws and customs of conquered peoples until such time as the Crown decreed otherwise. This reflected an English penchant to accede to foreign law while maintaining a firm grip on the colony’s affairs. Section 4 turns to the federal election of 1885, in which male Indians were authorized to participate equally with male Canadian property owners and tenants, without having to give up their status or rights. This was part of a plan to ‘civilize’ Indigenous people via enfranchisement but which also produced an early acknowledgment of the plural identities and allegiances that constituted Canada at its origins.

This turn to history, emphasizing the development of institutions and practices over time, offers a productive way of tapping into Canadian constitutional culture. An emphasis on the dialectic between exercises of Imperial authority and local conditions generate resources with which to better understand the pathways and blockages that have resulted in contemporary constitutional practice. To lay the groundwork for the discussion to follow, I turn first to a description of the constitutional order governing British North America in the late eighteenth century.

1.  Powers ‘Most Ample and Transcendent’

How is it that Canada has developed a constitutional culture more pluralistic and more open to the other?31 It is appropriate, if paradoxical, to begin with reference to monarchical absolutism of the seventeenth century. The divine right of kings authorized (p. 919) omnipotent monarchs to govern not only domestic but overseas realms. This was an authority derived from God for which no competition would be tolerated. The King is ‘over-lord of the whole land, so he is master of every person that inhabiteth the same, having power over the life and death of every one of them,’ James I declared.32 Parliament, by comparison, was ‘nothing else but the head court of the king and his vassals’.33 The divine right of kings, embodied in royal prerogative, provided a response to the rival claims of papal authority issuing out of Rome.34 It was derived from the ‘necessity, not hitherto felt, of forming clear notions of sovereignty and of defining its abode.’35

The Glorious Revolution of 1688 and accompanying enactments, the Bill of Rights of 1689, the Triennial Act of 1694, and the Act of Settlement of 1700, reversed this logic of authority. ‘Sovereignty in 1688,’ observes Keir, ‘was for practical purposes grasped by the nation’.36 Parliament, with its famous equipoise between King, Lords, and Commons, was supreme in most things.37 The colonies of North America continued to be governed by royal prerogative, however, even if practically under the direction of the King’s ministers (principally the Secretary of State and the Board of Trade).38 Authority flowed from the King to his agents operating in the colonies. Gubernatorial powers, writes Labaree, were ‘almost dangerously great’ and, as ‘direct representative of his royal master … naturally endowed with the prerogatives which in Great Britain belonged solely to the king’.39 In truth, these were powers greater than those the sovereign exercised in Britain.40 According to English lawyer Charles Clark’s treatise, A Summary of Colonial Law, the Governor wields power not unlike the Crown in pre-revolutionary England. He ‘possesses a negative voice in the legislature; for without his consent no bill passes into a law’ and may ‘at his own discretion, adjourn, prorogue and dissolve the (p. 920) Assemblies.’ On the whole,’ Clark acknowledges, ‘it appears that the powers with which colonial governors are instructed are most ample and transcendent, and more extensive than those which the laws of England allow the sovereign himself to exercise’.41

The Governor’s Commission and accompanying Royal Instructions, typically secret and untranslated, were expected to guide colonial conduct on the ground. The direction to Governors to make laws for the ‘peace, order, and good government’ of the colony can be viewed as an authorization to govern old and new subjects seemingly without limit. Governors wielded a mighty sword in a veto power, control over judicial appointments and the public purse, subject only to the advice of the Governor’s advisory body (the Council) and the supervisory jurisdiction of the colonial branch of government in England.42 It turned out that, whatever the breadth of gubernatorial authority, it ultimately ‘depended on forces vastly more complicated than the arbitrary will of the Crown’.43

All of this plenary power established a pattern of strong executive authority characteristic of British North America in the second empire.44 After the American Revolution, marking the end of the first empire, metropolitan authorities were intent on constraining self-governing capabilities within the remaining British North American colonies. Colonial masters adjusted patterns of governance established during the first empire. Rather than being endowed with considerable autonomy in their internal affairs, as had the colonies on the eastern seaboard of what would become the United States, Mancke observes that the colonies in what later would become Canada were subject to ‘greater state control,’ providing a firm foundation for the exercise of vigorous political control by the metropolitan centre.45 It is this legacy of muscular authority that gets taken up by Canadian governments under successive constitutional arrangements, resulting in the contemporary phenomenon of ‘governing from the centre’.46

(p. 921) 2.  ‘As Far as the Laws of Great Britain Permit’

It was into this powerful structure of authority that Governor James Murray stepped. As the King’s delegate, Murray was expected to manage religious expectations but without authority to admit any ‘Ecclesiastical Jurisdiction of the See of Rome’. Catholicism was barely tolerated in practice in the British Isles. Religious heretics were no longer burned at the stake, but penal laws of the seventeenth century deprived Catholics of most of their civil rights.47 By the eighteenth century, Catholicism was no mere ‘religious error’, observes Maitland, it was a ‘grave political danger’.48 These constraints were put to the test in Britain’s new colonies after the defeat of the French in North America.

Having taken hold of the territory of New France pursuant to the King’s Proclamation of 1763, Great Britain achieved a number of objectives. Governing passed into Protestant hands, entitling the royal Governor to ‘make laws for public peace, welfare and good Government … as near as may be agreeable to the laws of England’ and to convene a legislative assembly only ‘when circumstances admit’.49 The laws of England were to control controversies in both civil and criminal cases.50 The Royal Proclamation also attended to the centralization of Indian policy, ensuring that British settlers and their descendants in the American colonies could not purchase or take lands of the ‘several Nations or tribes of Indians with whom we are connected, and who live under our Protection’.51

In Royal Instructions to the first Governor, issued the same day as the Royal Proclamation, James Murray was directed to ‘grant the Liberty of the Catholick Religion’ so that ‘our new Roman Catholick Subjects in that Province may profess the Worship of their Religion, according to the Rites of the Romish Church, as far as the laws of great (p. 922) Britain permit’.52 This was just as the British had promised in the Articles of Capitulation in Montreal and Quebec.53 At the same time, Governor Murray was expected to demand that new subjects take the requisite oath of allegiance. He would cause those who refused to take the oath to ‘forthwith to depart out of Our said Government’.54 With the purpose of ultimately assimilating new subjects, the Governor was directed to ‘establish’ the Church of England, both in ‘Principles and Practice,’ so ‘that the said Inhabitants may by Degrees be induced to embrace Protestant Religion, and their Children be brought up in the Principles of it’.55 Murray’s secret instructions were later described by F.-X. Garneau as a ‘sinister document’ representing a ‘hateful spirit of jealous exclusiveness’—a spirit that Garneau would find, in his own day, present in Lord Durham’s Report on the Affairs of British North America, published in 1839.56

With experience, Governor Murray learned that he could not govern the colony in accordance with the Imperial ambition of assimilation. Nothing would contribute more to making them ‘staunch subjects to his Majesty’, Murray advised, than to give them ‘every reason to imagine no alteration’ in their religious practices57 Accordingly, he deviated significantly from instructions so as to accommodate the King’s new subjects. Murray, via two ordinances in 1764, established new civil courts for les Canadiens (a court of common pleas) and admitted Roman Catholics as jurors, before which civilian lawyers were entitled to appear.58 Although admittedly complex, Murray’s legal edicts required less adaptation from the King’s ‘new’ subjects than it did for his ‘old’ ones.59 There remained a vacuum in religious leadership, however, that Murray’s leadership could not satisfy without metropole consent.

With the death of Monsignor Pontbriand in 1760, the colony was left without religious authority to ordain new priests. Imperial officers would not, however, consent to the (p. 923) appointment of a Bishop for Quebec for this would amount to acknowledgment of papal authority, inconsistent with the Act of Supremacy of 1559. Murray was initially content to see the episcopal vacancy persist60 but succumbed to the pleas of Catholic parishioners and proposed the consecration of his preferred candidate, M. Olivier Briand, in 1766.61 Metropole authorities were also reluctant, and so had Briand wait 14 months before agreeing to send him to the outskirts of Paris for consecration by papal bulls of investiture issued by Pope Clement III. This would be done secretly, ‘almost clandestinely’, under the guiding hand of Edmund Burke, private secretary to the Rockingham ministry.62 Three years later, permission was secured for Briand to consecrate a coadjutor to be his successor,63 though appointment would be subject to the approval of Murray’s successor, Governor Carleton.64

Briand was expected to serve officially not as Bishop but as the downgraded ‘Superintendent of the Roman Church in Canada’.65 Briand, nevertheless, displayed the trappings of Bishop and was addressed publicly as ‘Monseigneur’.66 The Imperial concession, Coupland observes, gave to the new subjects a ‘dramatic and a convincing proof of the conciliatory intentions of the British government’.67 In so far as the Church was concerned, life went on as before.68 Yet the episode also compromised the independence of the Church in Quebec. Secular authorities were now meddling in the internal affairs of the Church, writes Trudel, ‘binding the bishop to the interests of government.69 ‘Under the English regime’, he concludes, ‘the Church became openly the vehicle for government orders’.70 Today, it is said that the ‘stakes in the negotiations between Murray and Briand were the heart of the Canadien identity of yesterday and the source of Quebec power today’. Securing a Catholic clergy for Quebec, writes Dufour, ‘evolved (p. 924) into Quebec’s control’ over key institutions within the province, including education, hospitals, municipalities, etc.71 Dufour’s whiggish narrative is too linear —there were many intervening events contributing to the rise of institutions associated with the Quebec state. That this episode contributed to the survival of a Roman Catholic francophone population on the North American continent, however, there can be little doubt.

Murray’s gubernatorial tenure, though sympathetic to the Canadiens, turned out to be tumultuous. Preferring the King’s new subjects over old ones, Murray described the Canadiens as ‘perhaps the bravest and the best race upon the Globe’.72 The English traders in Quebec and Montreal, by contrast, were characterized as ‘Licentious Fanaticks’.73 Having managed to alienate both military leadership and English Protestant traders in Quebec and Montreal, Murray departed for London to defend his tenure on the very same day the newly consecrated Briand landed at Quebec.

3.  ‘Ancient Laws’ of Conquered Kingdoms

Lawyers and law play an equivocal role in Canadian colonial history. They have, on the one hand, the potential of being vehicles for the most oppressive of measures. Consider the 1755 legal opinion of Nova Scotia Chief Justice Jonathan Belcher, concluding that Roman Catholic Acadiens could not be expected to genuinely take an oath of allegiance to the British King given their past refusals. They could be considered ‘in no other light than that of Rebels to his Majesty’, Belcher advised.74 Bearing the collective stamp of disloyalty, some 16,000 Acadians were expelled and their property taken by a 1759 legal enactment. English colonial lawyers could also play a more humanizing role. This was, in some ways, inadvertent. Metropole authorities were intent on maintaining jurisdictional borders between England and its dominions for fear that overseas aliens would be ‘naturalized’. The English, in particular, feared the ‘influx of poor Scots’ into their jurisdiction. The realm, observes Hulsebosch, ‘needed insulation’.75

Calvin’s Case provided an opportunity to police these borders. The question before the King’s Bench was whether a Scotsman, Robert Calvin, could sue in King’s courts (p. 925) regarding lands and chattels in Shoreditch. Calvin was born in the third year of the reign of James I (also James VI of Scotland). Lord Coke concluded that both the English and Scots were united by their allegiance to the person of the King, and so ‘cannot be an alien born’.76 Calvin could, therefore, pursue his remedy in English courts. In passing, Coke articulated what would become the foundation for future colonial legal doctrine, albeit with some modifications.77 Coke distinguished between the conquest of a Christian kingdom and that of an ‘infidel’ kingdom. In the case of a Christian kingdom, the King ‘may at his pleasure alter and change the laws of that kingdom: but until he doth make an alteration of those laws the ancient laws of the kingdom remain’.78 In the case of an infidel kingdom, ‘ipso facto the laws of the infidel are abrogated, for that they be not only against Christianity, but against God and the law of nature’. Finally, if land was inherited or the laws of England introduced by the King, then only Parliament could alter them.79 This was not a recipe for a unitary legal order but a pluralistic one. This was implicit in Coke’s declaration that Englishmen abroad were entitled to carry with them English constitutional rights, including those associated with property. A system of dual property rights thereby was contemplated, one for English settlers and another for local inhabitants.80 Jurisdiction was premised on a personal relation between Crown and subject rather than upon territorial claims.81 The common law only traveled abroad in the King’s dominions in limited ways. Conquered colonies, nevertheless, would be governed at the King’s ‘pleasure,’ that is, by royal prerogative. But until such time as laws were altered, municipal law continued to govern local affairs.82

Attorney General Fletcher Norton and Solicitor General William De Gray were asked by the aforementioned Board of Trade83 whether the newly conquered Roman Catholic (p. 926) subjects of Canada were subject to the same ‘incapacities, disabilities and Penalties’ as Roman Catholics in the United Kingdom.84 They concluded on 10 June 1765 that they were not.85 Only the year prior, Lord Mansfield expressed consternation in response to reports that Canadian laws and customs had been ‘abolished … all at once.’ ‘The history of the world don’t furnish an instance of so rash and unjust an act by any conqueror whatsoever’, complained Mansfield. ‘The fundamental maxims are,’ he maintained, ‘that a country keeps her own laws, ’till the conqueror expressly gives new’.86

The Board of Trade subsequently asked Attorney General Charles Yorke and Solicitor General de Grey their opinion regarding the state of civil government in Québec. Yorke and de Gray, in their opinion of 14 April 1766, identified two sources of ‘disorder’ in the province. The first was an attempt to ‘carry on the Administration of Justice without the aid of the natives, not merely in new forms, but totally in unknown tongue’.87 The second was the ‘alarm’ taken regarding the construction of the Royal Proclamation of 1763 which declared the law of England as controlling in civil and criminal cases. The cumulative effect abolished all local law, replacing it with ‘new, unnecessary and Arbitrary rules, especially in the Titles to land, and in the modes of Descent, Alienation and Settlement, which tend to confound and subvert the rights, instead of supporting them’.88 This looked to be the product of ‘the rough hand of a Conqueror rather than … the true Spirit of a Lawful Sovereign’.89 To the first source of disorder, Murray had been instructed to relax the application of English law in civil disputes, enabling Quebec lawyers to appear and Quebec jurors to sit90—both of which, the Imperial legal advisors seemingly unaware, Murray had secured for the court of common pleas pursuant to his ordinance of September 1764.91 Yorke and De Gray further opined that:

There is not a Maxim of the Common Law more certain than that a Conquer’d people retain their antient Customs till the Conqueror shall declare New Laws. To change at once the Laws and manners of a settled Country must be attended with hardship and Violence; and therefore wise Conquerors having provided for the Security of (p. 927) their Dominion, proceed tentatively and indulge their Conquer’d subjects in all local Customs which are in their own nature indifferent, and which have been received as rules of property or have obtained force of Laws. It is the more material that this policy be persued in Canada; because it is a great and antient Colony long settled and much Cultivated, by French subjects.92

Yorke and de Gray laid down as ‘general rules’ that in all personal civil actions (as in contract) the laws of England would prevail. In actions concerning real property (as in title to land) ‘local customs and usages’ would have supremacy. It would otherwise ‘occasion infinite confusion and injustice’ to ‘introduce at one Stroke the English law’ of real property.93 English judges would be expected to be instructed by ‘Canadian lawyers and intelligent Persons in the customs of Canada’.94 As before, English law would prevail in criminal cases. The Governor was expected to publish a proclamation explaining these changes regarding the administration of justice in Quebec. This would ‘quiet the minds of the People as to the true meaning of the Royal Proclamation of Oct’r 1763’.95

These subsequent accommodations, statutorily enshrined in the Quebec Act of 1774, secured the continued application and growth of the civil law in Quebec. Lord Hillsborough, in the spirit of revisionism not unlike that displayed by Yorke and De Gray, claimed that the Proclamation of 1763 was not intended to repeal local law in regard to property and civil rights. It ‘never entered into Our Idea to overturn the Laws and Customs of Canada, with regard to Property, but that Justice should be administered agreeably to them,’ he wrote to Governor Carleton in 1768.96 This was proof, once again, that colonies in the periphery could never be governed by simple orders issuing from the centre.

In the case of First Nations in North America, English lawyers, for much of the eighteenth century, were less preoccupied with assertions of sovereignty. Whatever claims being made by the empire upon the original inhabitants, they could only be founded upon mutual consent. Though paternalistic, the regime was pluralistic.97 This remained the case only until the press of immigration forced Indigenous peoples to give up their lands to European settlers. By the late eighteenth century, the lawyers’ insistence upon Crown sovereignty over subject people, including Indigenous people, was deemed to be exclusive and absolute. The ‘original sovereignty of the aboriginal peoples was regarded as spent’, writes McHugh—‘[i]t was at best a momentary original condition long since gone’.98

(p. 928) 4.  Enfranchising the ‘Former Lords of the Soil’

The third episode under discussion brings clearly to the surface the close relationship between strategies of recognition and the violence of assimilation. We are speaking of the period shortly after Confederation, when the Electoral Franchise Act of 1885 conferred federal voting rights upon the Indigenous peoples of Eastern Canada. It should be emphasized that, by this time, the success of the European enterprise in British North America was less dependent upon good relations with First Nations, as the language of the Royal Proclamation of 1763 suggested. Rather, the relationship between the Crown and Indigenous peoples in British North America was by now transformed from one of mutuality and reciprocity into one of neglect and exploitation.99 Moving from partners to subjects, ‘Indians’ emerged among the list of ‘matters,’ in section 91(24) of the British North America Act 1867, allocated to federal authority. Indian affairs remained centralized, as they had since 1763. In this era, Indigenous people were expected to get out of the way so that economic development could proceed apace. Treaty making, as it had in the eighteenth century, remained the preferred means of placating Indigenous protestations.

As in pre-Confederation Canada, assimilation was the principal objective of federal Indian policy. Until the 1885 Franchise Act, male Indians could be enfranchised only if sufficiently educated, free of debt, and renouncing all treaty privileges. In such cases, legal distinctions between enfranchised Indians and others of her Majesty’s subjects were erased and their populations ‘eas[ed] into the wage economy’: they would ‘no longer be deemed an Indian’ under law.100 Individuals were expected to exchange their indigeneity for the right of representation. The 1885 Act reversed course, somewhat, but only temporarily. The federal law would extend the franchise to Indians without also demanding that they give up tribal membership.101 This had the beneficial effect of not having to forsake Indigenous identity in favour of a Canadian one. The Act, instead, recognized the possibility of dual, even plural, identities.102 It did not mean a transformation of the settler state-Indigenous relationship, one still premised upon Eurocentric (p. 929) conceptions of superiority.103 Rather it offered up the possibility of expressing ‘nationhood demands’ in the context of a continuing relationship of asymmetrical power relations.104

In accordance with transitional provisions in the Constitution Act, 1867, s. 41, provincial laws determined who could vote in federal elections until an act of Parliament provided otherwise. Municipal officers, presumably more knowledgeable about local political conditions, drew up voters’ lists for the first five federal elections.105 The Electoral Franchise Act of 1885,106 an initiative of the Conservative government of John A. Macdonald, was intended to provide otherwise. It also was intended to improve conditions for a Conservative majority by enfranchising those, such as male property holders, who were more likely to vote Conservative.107

Among the changes proposed was extension of the vote to property-owning women and to Indigenous peoples across Canada. The first proposal went too far, even for members of the ruling Conservative Party.108 The proposal to enfranchise ‘male persons … including Indians,’ however, secured sufficient support. Indians who had improved communal tracts of land, in the amount of at least $150, survived parliamentary scrutiny.109 The underlying objective, admitted Prime Minister Macdonald in a Cabinet memorandum, was assimilation ‘as speedily as they are fit for the change’.110

Opposition Liberals were content to leave the federal franchise in the hands of local officials, as in the United States. A decentralized system was preferred, declared Liberal David Mills, invoking a discourse of provincial rights. Under the Constitution, the ‘people of each Province, … should be allowed to decide for themselves who shall possess, within their limits electoral franchise’.111 Additional objections were enumerated. Indians were incompetent to exercise civic rights. The Bill would allow Indians ‘to go (p. 930) from a scalping party to the polls’, Mills declared.112 They are ‘infants of the Dominion’, opined Cameron, without the ‘degree of independence that will fit him for the discharge of the franchise’ added Charlton.113 Moreover, worried Mills, these ‘wards of the Government’ were likely to defer to the wishes of their federally appointed superior, the Conservative Party-affiliated Superintendent General.114 Lastly, as they were not capable of managing their own affairs, Mills insisted, they were not capable of ‘managing the affairs of the country’.115 Being exempt from taxation—having no cognizable civic obligations—they could not be awarded the privileges of citizenship, namely, representation in the national Parliament.

The Prime Minister responded by assuring the House of Commons that it would only be ‘those Indians’ who had the ‘outward evidences of property which the white man can show … houses, furniture, and civilised appliances of a certain value’ who would be conferred the franchise’.116 Macdonald acknowledged that ‘aboriginal Indians, formerly lords of the soil, formerly own[ed] the whole of this country … are British subjects now; they desire to remain so, and as British subjects they have the same rights as the white man’.117 Though premised upon questionable notions of consent (‘They are British subjects now’), what is most significant about this concession is that Macdonald was prepared ‘to extend the franchise to the Indian men without demanding [their] total assimilation’.118 Tribal lands and treaty obligations would remain intact under the Franchise Act. There would be no forced choice between community and Canadian citizenship.

There remains the question—answered affirmatively by Macdonald—of whether Indigenous people sought out the federal franchise. The Liberal opposition noted a marked reluctance on behalf of Indigenous leadership fearing that, upon the heels of enfranchisement, taxation measures and the downgrading of Indigenous government to regular municipalities would soon follow.119 There was good ground for such a fear given the assimilationist objectives of Macdonald’s Indian policy, up to that point, and an evident desire to control Indian internal affairs by establishing municipal institutions.120 The opposition was spreading falsehoods, claimed the Prime Minister in a letter (p. 931) to Chief Johnson of Desoranto, ‘in order to prevent the original proprietors of the soil of this country from standing on a footing of equality with the white men, who have come into it … He will stand exactly in the same position in all respects the hour after he may vote as he stood the hours before he voted’.121 Taking issue with the opposition Liberals, Chief Kahkkwaquonaby (Peter Jones) of the Six Nations wrote to the Toronto Daily Mail that Indians do not pay taxes in light of the fact that they ‘parted’ with their lands for a ‘mere nominal figure’. The meager benefits they receive in exchange under treaty represent ‘no more than the exact interest upon this investment’. ‘There is not a family in my reserve’, Jones continued, who was not sufficiently sophisticated so as to ‘read the torrent of abuse your party [the Liberals] are indulging in at our expense’.122 Macdonald made a similar point in House of Commons debates, likening treaty rights to private rights: ‘The annuities paid to the different bands are their own moneys, and they got them as of right. Their lands have been sold; the proceeds have been funded at a certain rate of interest, which the Government pays; and the Indian has the same right to his annual payment out of that fund as if he were a shareholder in a bank receiving a dividend. It is his own money’.123

The final terms of the Electoral Enfranchisement Act excluded most Indigenous people west of Ontario (s. 11[c]). This was a consequence of the rebellion at Batoche and Frog Lake, events that broke out four days after Macdonald introduced the act in Parliament.124 The uprising made it awkward for the federal government to extend the franchise to those who were rebelling against it. The franchise would be extended only to ‘Indians of the old Provinces,’ declared the Prime Minister.125 Despite seemingly favorable conditions for a Conservative re-election, they were defeated; the new Liberal government repealed the law prior to the next federal election.126 Canadian constitutional culture was not quite ready for Indigenous enfranchisement until much later. It was not until 1960 that the Indian franchise was restored by the Conservative government of John Diefenbaker.

5.  Conclusion

During the federal election campaign of 2015, there arose a debate within Indigenous communities over the question of whether to vote in the upcoming election. ‘For many indigenous people, voting is like shopping for white bread’, observed Drew Hayden Taylor, ‘[i]t (p. 932) might be enriched but, really, does that make it any healthier?’.127 For some, participation in the federal election was equivalent to succumbing to the will of the colonizer. First Nations should protect Indigenous rights in ‘nation-to-nation negotiations [rather] than as a stakeholder, interest group, or ethnic minority Canadian’.128 Even Perry Bellegarde, Chief of the Assembly of First Nations, admitted that he had never before voted in a federal election. He, nevertheless, urged others to do so this time.129 Indigenous turnout had the potential to swing outcomes in a number of key federal ridings away from the ruling Conservatives.130 One can imagine similar conversations occurring in Indigenous communities in 1885. Canadian constitutional culture today, in this respect, exhibits some continuity with the past.

Like Imperial authority before it, Canadian federal power continues today to make claims over its constituent parts. I shall make mention of a couple of such instances here, by way of conclusion. The federal Clarity Act of 2000131 endows the federal government with the power to unilaterally determine whether the question asked, in a future referendum on Quebec sovereignty, is clear and whether its majority is sufficiently great. This, the federal government claims, merely sculpts into statutory language the Supreme Court of Canada’s ruling in Reference re Secession of Quebec.132 Yet, the Supreme Court there condemned unilateralism in all its forms, not just that proposed by the province of Quebec, whenever the interests of other governments are implicated.133

By sending mixed messages, the Supreme Court appears to encourage this sort of behavior. The Court recently authorized provincial laws of general application to apply in respect of Indigenous rights in Tsilhqot’in Nation, even though provinces were previously constitutionally disentitled from so acting under the terms of the 1867 Act.134 The Court thereby reversed a ‘250-year-old constitutional principle first outlined in the Royal Proclamation of 1763’ that local governments have no direct dealings with First Nations’.135 The Court also continues to declare that underlying title to Indigenous (p. 933) territories passed to the Crown, without explaining the legal means for doing so that do not rest upon ethnocentric presuppositions by which title was secured.136 Rather than seeking consensus from the relevant parties, the Court will determine, in future, whether provincial limitations are constitutionally permissible under a justification framework it has been developing in Aboriginal rights cases under s 35 of the Constitution Act of 1982.

The urge to smooth over these differences via fiat, rather than by deliberation, continues to plague Canadian constitutionalism. We should acknowledge, instead, that having ‘competing loci of law and political ordering’ likely fosters disagreement over constitutional fundamentals.137 We might agree with Roderick MacDonald, then, that the Canadian example results in a constitutional culture different from that recommended by classical constitutional thought: ‘Paradoxically, the constitution that best recognizes and accommodates all types of diversity is that which denies its own power to define the scope of that recognition and accommodation’.138 Disagreement about sovereignty, autonomy, and the exercise of public power will be endemic to such a model of constitutional engagement.139 We should expect Canadians to continue to think and work through this complex and pluralistic constitutional paradigm.

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Footnotes:

I am grateful to Patrick Macklem and Nathalie des Rosiers for comments. This chapter is dedicated to the memory of Rod Macdonald, a mentor and a friend, who is dearly missed.

1  Martin Loughlin, ‘Constitutional Theory: A 25th Anniversary Essay’ (2005) 25 OJLS 183, 187.

2  ibid 197.

3  Martin Loughlin, ‘Constitutional Pluralism: An Oxymoron?’ (2014) 3 Global Constitutionalism 9, 13; Martin Loughlin, ‘In Defence of Staatslehre’ (2009) 48 Der Staat 1, 8–12.

4  Roderick A Macdonald, ‘Three Centuries of Constitution Making in Canada: Will There Be a Fourth?’ (1996) 30 UBC L Rev 211, 214.

5  ibid 216. Tierney suggests that Loughlin’s account ‘translates well’ into a ‘pluralized set of relations of sovereignty.’ See Stephen Tierney, ‘Sovereignty and the Idea of Public Law’ in Emilios Christodoulidis and Stephen Tierney (eds) Public Law and Politics: The Scope and Limits of Constitutionalism (Ashgate, 2008) 24.

6  RCB Risk, ‘Constitutional Scholarship in the Late Nineteenth Century: Making Federalism Work’ in G Blaine Baker and Jim Phillips (eds), A History of Canadian Legal Thought: Collected Essays (University of Toronto Press, 1996) 46; Robert C Vipond, Liberty & Community: Canadian Federalism and the Failure of the Constitution (State University of New York Press, 1991) 30.

7  To borrow a phrase, ‘sovereignty was constituted through colonialism’. See Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2004) 38.

8  Geneviève Nootens, ‘Constituent Power and People-As-Governed: About the “Invisible” People of Political and Legal Theory’ (2015) 4 Global Constitutionalism 137, 149.

9  See Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge University Press, 2002) 14: ‘Conquered people showed themselves to be quite adept and sophisticated at interpreting the significance of claims to jurisdiction and strategically taking positions to undermine those claims’.

10  Donald Fyson, Magistrates, Police, and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764–1837 (University of Toronto Press, 2006); Evelyn Kolish, Nationalismes et conflit des droits: Le débat du droit privé au Québec, 1760–1840 (Éditions Hurtubise HMH Ltée, 1994).

11  I draw here on John Austin’s definition of sovereignty in John Austin, The Province of Jurisprudence Determined Etc. (Weidenfeld and Nicolson, 1954) 194. Austin would not concede, however, that ‘savages’ were capable of being ‘in a habit of obedience to a certain and common superior’ (ibid., 203, 209). On indigenous resistance, see Taiaiake Alfred, ‘From Sovereignty to Freedom: Towards an Indigenous Political Discourse’ (2001) 3 Indigenous Affairs 22; Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (University of Toronto Press, 2014) 112; and Audra Simpson, Mohawk Interrutpus: Political Life across the Borders of Settler States (Duke University Press, 2014) 12.

12  I have elsewhere made the argument that Canadian constitutional culture is more pluralistic and more open to the other, in David Schneiderman, Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture (University of Toronto Press, 2015) ch 1.

13  Robert C Post, ‘Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law’ (2003) 117 Harvard L Rev 1; Ernest A Young, ‘The Constitution outside the Constitution’ (2007) 117 Yale L J 408.

14  Reva B Siegel, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA’ (2006) 94 California L Rev 1323.

15  Benjamin L Berger, Law’s Religion: Religious Difference and the Claims of Constitutionalism (University of Toronto Press, 2015) 36–39. Berger acknowledges his indebtedness to Paul Kahn’s cultural analysis of law. See Paul W Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (University of Chicago Press, 1999).

16  David Schneiderman, ‘Universality vs. Particularity: Litigating Middle Class Values under Section 15’ (2006) 33 Supreme Court L Rev 367; David Schneiderman, ‘Property Rights, Investor Rights, and Regulatory Innovation: Comparing Constitutional Cultures in Transition’ (2006) 4 International J of Constitutional L 371; David Schneiderman, ‘Social Rights and Common Sense: Gosselin through a Media Lens’ in Margot Young, Susan B Boyd, Gwen Brodsky, and Shelagh Day (eds), Social and Economic Insecurity: Rights, Social Citizenship and Governance (University of British Columbia Press, 2007); David Schneiderman, Red, White, and Kind of Blue? above (n 12).

17  Pierre Bourdieu, Pascalian Meditations (Stanford University Press, 2000) 70. Foucault associates culture with a ‘hierarchical organization of values that is accessible to everyone but which at the same time gives rise to a mechanism of selection and exclusion’. See Michel Foucault, The Hermeneutics of the Subject: Lectures at the Collège de France 1981–1982 (Graham Burchell trans, Palgrave Macmillan, 2001) 179.

18  Bob Jessop, State Theory: Putting Capitalist States in Their Place (University of Pennsylvania Press, 1990) 256, 260. Kahn’s observation about the rule of law is apt here. It ‘exists not as an attribute of a trans-historical subject, but as a distribution of power that works to sustain the conditions of belief that are constitutive of the unity of the nation as a single community’ (in Khan above (n 15)).

19  Philip Corrigan and Derek Sayer, The Great Arch: English State Formation as Cultural Revolution (Basil Blackwell, 1985) 197. As John Whyte wisely observes, the state is ‘not a passive taker of changing human aspirations but a might and ongoing force … The social tendencies that impel constitutional change are formed through the state as handmaiden of established powers and through placing citizens in fixed relationships and with fixed purposes and functions … ’ See John D Whyte ‘Constitutional Experience’ in Richard Janda, Rosalie Jukier, and Daniel Jutras (eds), The Unbounded Level of the Mind: Rod Macdonald’s Legal Imagination (McGill-Queen’s University Press, 2015) 95.

20  William E Connolly, Pluralism (Duke University Press, 2005) 145.

21  Fyson prefers to describe this process as one of ‘mutual adaptation,’ whereby ‘the Canadiens and British populations reacted to and attempted to shape the new realities that followed the military conquest of 1759–60 and diplomatic cession of 1763’. See Donald Fyson, ‘The Conquered and the Conqueror: The Mutual Adaptation of the Canadiens and the British in Quebec, 1759–1775’ in Phillip Buckner and John G Reid (eds), Revisiting 1759: The Conquest of Canada in Historical Perspective (University of Toronto Press, 2012) 192. ‘Adaptation’ renders genteel the relations of force ubiquitous in the colonial era.

22  Vincent T Harlow, The Founding of the Second British Empire, 1763–1793 (Longmans, 1964) 668. Conway maintains that colonial authorities drew upon their experience governing Catholics in Ireland and in the island of Minorca. See Stephen Conway, ‘The Consequences of the Conquest: Quebec and British Politics, 1760–1774’ in Phillip Buckner and John G Reid (eds), Revisiting 1759: The Conquest of Canada in Historical Perspective (University of Toronto Press, 2012).

23  As declared by Lord Thurlow, the Attorney General, in debates in British Parliament concerning the Quebec Act, 1774 in WPM Kennedy, Statutes, Treaties and Documents of the Canadian Constitution, 1713–1929 (2nd edn, Oxford University Press, 1930) 102.

24  Antonio Gramsci, Selections from the Prison Notebooks of Antonio Gramsci, Quentin Hoare and Geoffrey Nowell Smith (eds) (International Publishers, 1971) 168.

25  Michel Foucault, ‘Nietzsche, Genealogy, History’ in D F Bouchard (ed), Language, Counter-Memory, Practice: Selected Essays and Interviews (Ithaca University Press, 1977) 56; Robert A Williams, Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800 (Oxford University Press, 1997).

26  Michel Foucault, ‘Two Lectures’ in Colin Gordon (ed), Power/Knowledge: Selected Interviews and Other Writings 1972–77 (Pantheon 1980) 83; Michel Foucault, ‘Nietzsche, Genealogy, History’ above (n 25) 144.

27  The discussion is not meant to suggest that Indigenous claims to sovereignty and to lands is reducible to claims of cultural difference. See discussion in David Schneiderman, ‘Theorists of Difference and the Interpretation of Aboriginal and Treaty Rights’ (1996) 14 IJCS 35. Though I do not make the argument fully here, the episodes under discussion in this chapter should help to illuminate what is a much longer story.

28  Evidence of the unattainability of the universal that represents an incomplete or unfulfilled ‘horizon’ that is always receding. See Ernesto Laclau, Emancipations (Verso, 1996) 28, 34.

29  I have made a preliminary version of this argument in David Schneiderman, ‘Associational Rights, Religion, and the Charter’ in Richard Moon (ed), Law and Religious Pluralism in Canada (University of British Columbia Press, 2008) and David Schneiderman, ‘Multiculturalism in Canadian Constitutional Culture: Domesticating Difference’ (2016) [unpublished].

30  Gramsci associates this with a ‘Roman/Anglo-Saxon’ model of governance, a ‘type whose essential characteristic consists in its method, which is realistic and always keeps close to concrete life in perpetual development’. See Gramsci above (n 24) 196.

31  By ‘others,’ I am referring to those who are different from the colonizers and for whom ‘conquest and conversion are the two authorized responses.’ See William E Connolly, Identity\Difference: Democratic Negotiations of Political Paradox (Cornell University Press, 1991) 43.

32  GW Prothero (ed), Select Statutes and Other Constitutional Documents, 1558–1625 (Clarendon Press, 1913).

33  ibid.

34  John Neville Figgis, The Divine Right of Kings, 2nd ed. (Cambridge University Press, 1922).

35  Prothero above (n 32) cxxiv.

36  Sir David Lindsay Keir, The Constitutional History of Modern Britain since 1485 (9th edn, WW Norton & Company Inc, 1969) 269.

37  William Blackstone, Commentaries on the Laws of England vol 1, 1765 (University of Chicago Press, 1979) 150.

38  Otherwise known as the Lords Commissioners of Trade and Plantations. The Board of Trade was an advisory body to the Privy Council reporting to the Secretary of State for the Southern Department. The Board ‘drafted commissions and instructions for royal Governors, corresponded with them, and gathered information from royal officials, colonial Councils and Assemblies, and from Imperial, colonial, and chartered company petitioners and lobbyists.’ See Ian K Steele, ‘Metropolitan Administration of the Colonies, 1696–1775’ in Jack P Greene and J R Pole (eds), The Blackwell Encyclopedia of the American Revolution (Basil Blackwell 1991) 10. On the Secretaries of State, see William R Anson, The Law and Custom of the Constitution, Vol. II The Crown, Pt. I (Clarendon Press, 1907) 165.

39  Leonard Woods Labaree, Royal Government in America: A Study of the British Colonial System before 1783 (Frederick Ungar Publishing Co, 1964) 123.

40  Chester Martin, Empire & Commonwealth: Studies in Governance and Self-Government in Canada (Clarendon Press, 1929) 23; Ian K Steele, ‘The Anointed, the Appointed, and the Elected: Governance of the British Empire, 1689–1784’ in P J Marshall (ed), The Oxford History of the British Empire, Vol. II: The Eighteenth Century (Oxford University Press, 1998) 110.

41  Charles Clark, A Summary of Colonial Law (S Sweet, A Maxwell, and Stevens & Sons, 1834) 34.

42  Martin above (n 40) 27. Curiously, Yusuf claims that it was not intended as a source of plenary gubernatorial authority in the eighteenth century, in Hakeem O Yusuf, Colonial and Post-colonial Constitutionalism in the Commonwealth (Routledge, 2015) 227.

43  Martin above (n 40) 24.

44  British imperial history typically is divided into two distinct periods, the ‘first’ and ‘second’ empires, demarcated by the American Revolution and the signing of the Treaty of Peace in 1783. There remains some dispute as to the precise moment when the first empire ended and the second began. See discussion in P J Marshall, ‘The First British Empire’ in Robin Winks and Wm Roger Louis (eds), The Oxford History of the British Empire, Volume V: Historiography (Oxford University Press, 1999).

45  Elizabeth Mancke, ‘Early Modern Imperial Governance and the Origins of Canadian Political Culture’ (1999) 32 Canadian J of Political Science 3, 8, 20. This remained so even as Canada’s constitutions were placed on firmer statutory footing by enacting the Quebec Act of 1774—for the purpose of, among other things, enabling toleration of Roman Catholicism and imposing taxes (see Francis Maseres, Occasional Essays on Various Subjects Chiefly Political and Historical (Robert Wilks, 1809))—and, subsequently, the Constitution Act of 1791.

46  Donald J Savoie, Governing from the Centre: The Concentration of Power in Canadian Politics (University of Toronto Press 1999).

47  F W Maitland, Constitutional History of England (Cambridge University Press, 1919) 515.

48  ibid 517.

49  WPM Kennedy, Statutes, Treaties and Documents of the Canadian Constitution above (n 23) 36.

50  Walters claims that the Royal Proclamation of 1763 ‘made no mention of either the abrogation or continuity of the existing French-Canadian legal system’, in Mark D Walters, ‘The “Golden Thread” of Continuity: Aboriginal Customs at Common Law and under the Constitution Act, 1982’ (1999) 44 McGill L J 711, 726. As a consequence of the common law presumption of continuity, he argues, les coutumes des Paris continued to apply in Quebec. This is hard to square with the Proclamation’s decree that, until such time as a Legislative Assembly is established, ‘all Persons inhabiting in or resorting to our said Colonies may confide in our Royal Protection for the Enjoyment of the Benefit of the Laws of our Realm of England [and that] … Courts of Judicature and public justice [will be established] within our said Colonies for hearing and determining all Causes, as well Criminal and Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England’. See W P M Kennedy, Statutes, Treaties and Documents of the Canadian Constitution above (n 23) 36.

51  W P M Kennedy, Statutes, Treaties and Documents of the Canadian Constitution above (n 23) 37. Banner describes the Proclamation’s Indian policy as a ‘dismal failure’: ‘The most obvious effect of the Proclamation was to replace legal land acquisition with illegal land acquisition’. See Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Harvard University Press, 2005) 104.

52  W P M Kennedy, Statutes, Treaties and Documents of the Canadian Constitution above (n 23) 47, s. 28.

53  ibid, 23, 28.

54  ibid, 47, s. 29.

55  ibid, 47-48, s. 33.

56  Andrew Bell, History of Canada from the Time of Its Discovery till the Union Year of 1840–41: Translated from ‘L’Histoire du Canada’ of F-X Garneau, Esq., Volume II, 2nd edn (John Lovell, 1862) 88; The Earl of Durham, Lord Durham’s Report on the Affairs of British North America, Volume II: Text, Sir CP Lucas (ed) (Clarendon Press, 1912). Among other things, the Durham Report recommended the union of the two colonies (Upper and Lower Canada) and, ultimately, the assimilation of the French-speaking population into the English-speaking one.

57  Adam Shortt and Arthur G Doughty (eds), Documents Relating to the Constitutional History of Canada 1759–1791, Part I, 2nd edn (J. de la Taché, 1918) 71; ‘General Murray’s Report of the State of the Government of Quebec in Canada June 5th 1762’.

58  W P M Kennedy, Statutes, Treaties and Documents of the Canadian Constitution above (n 23) 53, 69–70; Hilda Neatby, Quebec: The Revolutionary Age, 1760–1791 (McCelland & Stewart, 1966) 48–49, 53.

59  Donald Fyson, ‘The Conquered and the Conqueror’ above (n 21) 205; Francis Maseres, ‘A Draught of an Intended Report of the Honourable the Governor in Chief and the Council of the Province of Quebec to the King’s Most Excellent Majesty in His Privy Council; concerning the State of the Laws and the Administration of Justice in that Province’ in W P M Kennedy and Gustave Lanctot (eds), Reports on the Laws of Quebec, 1767–1770 (F A Acland, 1931).

60  Shortt and Doughty above (n 57) 71; A L Burt, The Old Province of Quebec: Volume 1, 1760–1778 (McLelland and Stewart, 1968) 84–85.

61  Reginald Coupland, The Quebec Act: A Study in Statesmanship (Clarendon Press, 1925) 53; Abbé Auguste Gosselin, L’Eglise du Canada Après la Conquête, Première Partie 1760–1775 (Imprimerie Laflamme, 1916) 160. Murray preferred Briand over the candidacy of Monsignor Montgolfier, who Murray describes in a 4 May 1763 letter to Secretary of State Shelburne as likely to do ‘much harm at the first opportunity he would have to deploy his grudge and malice’, in Gosselin, ibid, 83. Murray, by contrast, describes his preferred candidate Briand in glowing terms in a 22 July 1763 letter to Shelburne, in Gosselin, ibid, 69.

62  Francis Maseres, Occasional Essays on Various Subjects Chiefly Political and Historical above (n 45) 364. I have mentioned this episode previously in David Schneiderman, ‘Edmund Burke, John Whyte, and Themes in Canadian Constitutional Culture’ (2006) 31 Queen’s LJ 578.

63  John S Moir, The Church in the British Era: From the British Conquest to Confederation—Volume Two of A History of the Christian Church in Canada (McGraw-Hill Ryerson Limited, 1972) 40, 45.

64  Neatby above (n 58) 113.

65  Coupland above (n 61) 53.

66  Neatby above (n 58) 111.

67  Coupland above (n 61) 54.

68  Fernand Ouellet, Lower Canada, 1791–1840: Social Change and Nationalism (Patricia Claxton trans, McClelland & Stewart 1980) 14.

69  Marcel Trudel, ‘Servile’ in Cameron Nish (ed), The French Canadians 1759–1766: Conquered? Half-Conquered? Liberated? (The Copp Clark Publishing Company, 1966) 114.

70  ibid 115.

71  Christian Dufour, A Canadian Challenge—Le Défi Québécois (Oolichan Books and the Institute for Research on Public Policy, 1990) 39.

72  ‘Governor Murray to the Lords of Trade’ (29 October 1764) in Shortt and Doughty above (n 57) 231: This was a ‘race,’ Murray wrote, ‘who cou’d they be indulged with a few privileges wch the Laws of England deny to Roman Catholicks at home, wou’d soon get the better of every National Antipathy to their Conquerors and become the most faithful and most useful set of Men in this American Empire’.

73  Shortt and Doughty above (n 57) 231.

74  Michel Bastarache, ‘The Opinion of the Chief Justice of Nova Scotia Regarding the Deportation of the Acadians’ (2010) 42 Ottawa L Rev 261, 264.

75  Daniel J Hulsebosch, ‘The Ancient Constitution and the Expanding Empire: Sir Edward Coke’s British Jurisprudence’ (2003) 21 L and History Rev 439, 448–449.

76  Calvin’s Case (1608) 7 Coke’s Reports 1a; 77 ER 377 (KB), 14b/394.

77  See, e.g., Campbell v Hall (1774) 1 Cowp 204, 98 ER 1045 (KB) and Blankard v Galdy (1693) 2 Salk. 41, 190 E.R. 1089. For a discussion of legal developments subsequent to Calvin’s Case, see Sir William Holdsworth, History of English Law, vol XI (Methuen & Co Ltd, 1938) 229–248.

78  This was viewed as faithful to Roman practice, according to Sir Matthew Hale: ‘they rarely made a rigorous and universal Change of the Laws of the conquered Country, unless they were such as were foreign and barbarous, or altogether inconsistent with the Victor’s Government: But in other Things, they commonly indulged unto the conquered, the Laws and Religion of their Country upon a double Account … On Account of Humanity … [and] Upon Account of Prudence’. See Sir Matthew Hale, The History of the Common Law (Charles M Gray ed, 3rd edn, University of Chicago Press, 1971) 52–53. This is how Gramsci (n 30) understood this model, as well.

79  Calvin’s Case above (n 76) 18a/398. On whether the Parliament contemplated was the one in London or a local representative body, see Hulsebosch above (n 75) 463.

80  Hulsebosch above (n 75) 468.

81  P G McHugh, Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination (Oxford University Press, 2004) 69.

82  Walters associates this with the ‘common law presumption of continuity of local law’, which was ‘rebutted once a legislative instrument extended English municipal law and institutions over the local community’. See Mark D Walters, ‘The “Golden Thread” of Continuity’ above (n 50) 719. Likening the rule to a rebuttable presumption is regrettable as it empties his account of the asymmetrical relations of power on display in imperial law.

83  The Board of Trade was an advisory body to the Privy Council reporting to the Secretary of State for the Southern Department. The Board ‘drafted commissions and instructions for royal Governors, corresponded with them, and gathered information from royal officials, colonial Councils and Assemblies, and from Imperial, colonial, and chartered company petitioners and lobbyists’. See Steele above (n 40) 107–108.

84  The question of the degree to which les Canadiens would be absorbed into English law and religion ‘gave rise to cabinet disputes’ according to Peter Marshall, ‘British North America, 1760–1815’ in P J Marshall, The Oxford History of the British Empire, Volume II: The Eighteenth Century (Oxford University Press, 1999) 377. It is also described by Coupland above (n 61) as a ‘vital question.’

85  Shortt and Doughty above (n 57) 236.

86  William James Smith, The Grenville Papers, ed, Volume II (John Murray, 1852) 476–477.

87  W P M Kennedy, Statutes, Treaties and Documents of the Canadian Constitution above (n 23) 65.

88  ibid.

89  ibid.

90  W P M Kennedy, The Constitution of Canada: An Introduction to Its Development and Law, introduction by Martin Friedland (Oxford University Press, 2014) 42.

91  Neatby above (n 58) 52. Neatby notes that the power to apply Canadian law was ‘necessarily limited’ by reason of the court of common pleas limited jurisdiction and the right of appeal to the King’s Bench under the control of English lawyers and English law (53).

92  W P M Kennedy, Statutes, Treaties and Documents of the Canadian Constitution above (n 23) 67.

93  ibid.

94  ibid 68.

95  ibid.

96  ibid 77. Walters interprets this as confirmation of the power of the common law presumption of continuity in Walters, ‘The “Golden Thread” of Continuity’ above (n 50) 725. As mentioned in n 43, this is hard to square with the text of the Royal Proclamation of 1763.

97  Mark D Walters, ‘Mohegan Indians v. Connecticut (1705–1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America’ (1995) 33 Osgoode Hall L J 785.

98  McHugh above (n 81) 103–109, 152.

99  Canada, Royal Commission on Aboriginal Peoples, Treaty Making in the Spirit of Co-existence: An Alternative to Extinguishment (Minister of Supply and Services Canada, 1995) 31.

100  Statutes of Canada, 1857, c. 26, s.3; Douglas C Harris, Landing Native Fisheries: Indian Reserves & Fishing Rights in British Columbia, 1849–1925 (University of British Columbia Press, 2008) 39.

101  Richard Bartlett, ‘Citizens Minus: Indians and the Right to Vote’ (1980) 44 Saskatchewan L Rev 163, 172.

102  Martha-Marie Kleinhans and Roderick A Macdonald, ‘What Is a Critical Legal Pluralism?’ (1997) 12 Canadian J of L & Society 25, 38–40: critical legal pluralism conceives of the legal subject ‘as carrying a multiplicity of identities’. Also James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, 1995) 11.

103  This is what Tully calls ‘internal colonization’ in James Tully, ‘The Struggles of Indigenous Peoples for and of Freedom’ in Public Philosophy in a New Key, Volume 1: Democracy and Civic Freedom (Cambridge University Press, 2008) 259–261.

104  Alfred above (n 11) 30.

105  Ben Forster, Malcolm Davidson and R Craig Brown, ‘The Franchise, Personators, and Dead Men: An Inquiry into the Voters’ Lists and the Election of 1891’ (1986) 67 The Canadian Historical Rev 17, 19; Malcolm Montgomery, ‘The Six Nations and the Macdonald Franchise’ (1965) 57 Ontario History 13, 13.

106  Statutes of Canada 1885, 48–49 Vict., c. 40. The debates involved 101 members of Parliament, some speaking more than 20 times. See Henry J Morgan, The Dominion Annual Register and Review for the Nineteenth Year of the Canadian Union, 1885 (ed., Hunter, Rose & Company, 1886) 55.

107  Montgomery above (n 105) 20.

108  Mr. Royal in HC Deb 24 April 1885: 1390 (Can); Veronica Strong-Boag, ‘The Citizenship Debates: The 1885 Franchise Act’ in R Adamsoki, D Chunn and R Menzies (eds), Contesting Canadian Citizenship: Historical Readings (Broadview Press, 2002).

109  Electoral Franchise Act of 1885 above (n 106), ss. 2, 11(c).

110  Montgomery above (n 105) 13. This was an objective also secured by Indian Act provisions dictating that Indian women marrying non-Indian men would lose their status under the Act. See Kathleen Jamieson, Indian Women and the Law in Canada: Citizens Minus (Minister of Supply and Service Canada 1978) and Indian Act of 1876, Statutes of Canada, c 18, s 3.3 (c).

111  HC Deb 11 May 1885: 1759 (Can).

112  HC Deb 29 April 1885: 1485 (Can).

113  HC Deb 1 May 1885: 1503 (Can).

114  HC Deb 1 May 1885: 1503 (Can).

115  HC Deb 30 April 1885: 1487 (Can).

116  HC. Deb 30 April 1885: 1487 (Can).

117  HC Deb 1885: 1575 (Can).

118  Bartlett above (n 101) 172. As Kleinhans and Macdonald assert, the critically legal pluralist subject ‘is best characterized as a multiplicity of selves and not the modern anthropomorphized individual of economics, political science and Charters of Rights’ above (n 102) 42.

119  Bartlett above (n 101) 177.

120  Darlene Johnston, ‘First Nations and Canadian Citizenship’ in William Kaplan (ed), Belonging: The Meaning and Future of Canadian Citizenship (McGill-Queen’s University Press, 1993) 358–359. See the Gradual Civilization Act 1857, Statutes of Canada, 20 Vict., c. 26; the Gradual Enfranchisement Act 1869, Statutes of Canada, 31 Vict. c. 42; and discussion in Johnston, ibid., 354–359.

121  Quoted in Bartlett above (n 101) 177.

122  Peter E Jones, ‘The Indian Franchise: Views of Head Chief’ Toronto Mail (22 May 1885).

123  HC Deb 1885: 1487 (Can).

124  Montgomery above (n 105) 14.

125  HC Deb 1885: 1574 (Can). The Act disqualified ‘Indians in Manitoba, British Columbia, Keewatin and the Northwest Territories’ (48-49 Vict., c. 40, s. 11 [c]).

126  Montgomery above (n 105) 25.

127  Drew Hayden Taylor, ‘Why First Nations Might Vote This Time Around’ Now Toronto Magazine (11 October 2015) https://nowtoronto.com/news/the-now-guide-to-the-2015/why-first-nations-might-vote-in-%23elxn42/ accessed 9 July 2016.

128  Pamela Palmater, ‘The Power of Indigenous Peoples Has Never Come from Voting in Federal Elections’ rabble.ca (9 August 2015) http://rabble.ca/blogs/bloggers/pamela-palmater/2015/08/power-indigenous-peoples-has-never-come-voting-federal-electi accessed 10 July 2016.

129  Joan Bryden, ‘AFN National Chief Urges Aboriginal People to Vote, Even if He Doesn’t’ The Globe and Mail (2 September 2015).

130  Voting in some indigenous communities was up 270 percent in 2015. See Chinta Puxley, ‘Voter Turnout up by 270% in Some Aboriginal Communities’ The Toronto Star (25 October 2015).

131  Statutes of Canada 2000, c. 26.

132  Reference re Secession of Quebec [1998] 2 SCR 217.

133  David Schneiderman, ‘Referendum Reckoning: Jean Chretien’s Itch to Clarify the Rules of Secession Is Rash’ The National Post (30 November 1999) A18.

134  Tsilhqot’in Nation v British Columbia 2014 SCC 44, [2014] S.C.J. No 44, para 150, by virtue of s. 91(24). See Patrick Macklem, Indigenous Difference and the Constitution of Canada (University of Toronto Press, 2001) 116–117.

135  John Borrows, ‘The Durability of Terra Nullius: Tsilhqot’in Nation v. British Columbia’ (2015) 48 University of British Columbia L Rev 701, 735–737; Hamar Foster, ‘Honouring the Queen: A Legal and Historical Perspective on the Nisga’a Treaty’ (1998/1999) 120 BC Studies 11, 14–15.

136  Tsilhqot’in Nation above (n 134) [69]; Michael Asch and Patrick Macklem, ‘An Essay on R. v. Sparrow’ (1991) 29 Alberta L Rev 498.

137  Roderick A. Macdonald, ‘The Design of Constitutions to Accommodate Linguistic, Cultural and Ethnic Diversity: The Canadian Experiment’ in Kálmán Kulcsár and Denis Szabo (eds) Dual Images: Multiculturalism on Two Sides of the Atlantic (Institute for Political Science of the Hungarian Academy of Sciences, 1996) 53.

138  ibid 53.

139  Stuart Hampshire, Innocence and Experience (Harvard University Press, 1989); Connolly above (n 20).