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Speech in Senate Chamber: Inquiry— Canada's Founding Fathers: Guy Carleton— Debate Concluded

Hon. Anne C. Cools rose pursuant to notice of March 1, 2018:
That she will call the attention of the Senate to the great
nation-builders of Canada and its constituting statute, the
British North America Act, 1867 and to this Act’s single
comprehensive and conceptual framework expressed in
section 91, in the words “It shall be lawful for the Queen to
make Laws for the Peace, Order and good Government of
Canada;” and, to the British soldier-general Guy Carleton,
later Lord Dorchester, the architect of the Quebec Act, 1774,
which Act guaranteed the Roman Catholic religion, the
French language and the French Napoleonic Civil Code to
King George III’s French-speaking subjects in British North
She said: Honourable senators, I rise to speak to my Inquiry
No. 38, respecting the Fathers of Confederation, and the many
who bravely endeavoured to build a constitutional nation,
Canada, that would be governed by its abiding and enduring
Constitution, the British North America Act, 1867. Again I call
colleagues’ attention to the primacy of its well-tested and wellused
section 91, which section with majesty, confidence,
elegance and poise declares that:
It shall be lawful for the Queen, by and with the Advice
and Consent of the Senate and House of Commons, to make
Laws for the Peace, Order, and good Government of
Canada . . . .
Colleagues, tonight I speak to Canada’s constituting statutes,
including the Quebec Act, 1774, which guaranteed to British
King George III’s British North American, French-speaking
subjects of Quebec their Roman Catholic religion, their French
language and their French Law, the Napoleonic Civil Code.
Unlike Canada, the British West Indies island colonies had been
granted legislative assemblies and legislative councils very early
in their history. In 1989, my birthplace Barbados celebrated 350
years of their House of Assembly, their parliament, which was
established in 1639 and is the second oldest after Westminster.
By its 1652 Charter, Barbados was granted the bundle of
constitutional powers and rights that are embodied in the two
constitutional phrases, “no taxation without representation” and
“the control of the public purse.” In continental America, the
absence of these constitutional powers had been a defining factor
and cause of their 1776 American Revolutionary War. The 1652
Barbados Charter antedates the constitutions of both Canada and
the United States by a century. I shall cite its Article 3, its
famous no taxation without representation article, recorded in Sir
Robert Schomburgk’s 1848 book The History of Barbados:
Comprising a Geographical and Statistical Description of the
Island. This book was republished in 1971 by Frank Cass,
London, England. It records the complete 1652 Barbados
Charter. Barbados, known as Little England, was seen as
Britain’s most important colony, where sugar cane, the sugar
plantation, and even slavery, were created, developed and
established. The 1652 Barbados Charter Articles of Agreement
were concluded on January 11, 1652, between the
Commissioners of the Right Honourable Lord Willoughby of
Parham, and the Commissioners for the Commonwealth of
England. Its Article 3 said, at page 280 of Schomburgk’s book:
3. That no taxes, customs, imports, loans, or excise shall
be laid, nor levy made on any of the inhabitants of this
island without their consent in a General Assembly.
Honourable senators, it is remarkable that Barbados had
achieved this high constitutional point a hundred plus years
before the 1759 battle for Quebec at the Plains of Abraham
between the forces of Britain’s General James Wolfe and
France’s General Louis-Joseph de Montcalm, and 124 years
before the 1776 American Revolutionary War. Clearly, the
unique social and historical development of Barbados was
enriched by its vast and long experience in constitutionalism and
in parliamentary assemblies. But I’m speaking about Canada’s
Constitution, and the genius and longevity of the phrase “peace,
welfare and good government” as the constitutional framework
of our government and governance structures.
Colleagues, from the 1759 Conquest and Capitulation at the
Plains of Abraham, to the British North America Act, 1867, and
until now, our Confederation statutes have consistently provided
Canada and Canadians with the single, wise, comprehensive and
conceptual framework for governance in Canada, expressed as
the single phrase “peace, welfare and good government.” Whig
and Liberal in origin, this single conceptual governance
framework has served Canada well and long.
Honourable senators, I shall now cite Canada’s defining
constituting documents, the first of which was the Royal
Proclamation, October 7, 1763, the Royal Prerogative instrument,
given by the hand of Britain’s Hanoverian King George III.
Thereafter, in the next hundred years, the British Westminster
Parliament chose statutes of parliament, rather than royal
prerogative instruments, to express and deliver Canada’s
constitutions. Thereafter, the British Westminster Parliament
enacted Canada’s constitutions as imperial statutes. I shall cite
Canada’s constitutions, starting with King George III’s 1763
Royal Proclamation, printed at page 1 of the London Gazette,
Tuesday, October 4 to Saturday, October 8, 1763. This Royal
Proclamation ordered:
We have thought fit to publish and declare, by this Our
Proclamation, that We have, in the Letters Patent under our
Great Seal of Great Britain, by which the said Governments
are constituted, given express Power and Direction to our
Governors of our Said Colonies respectively, that so soon as
the state and circumstances of the said Colonies will admit
thereof, they shall with the Advice and Consent of the
Members of our Council, summon and call General
Assemblies within the said Governments respectively, in
such Manner and Form as is used and directed in those
Colonies and Provinces in America which are under our
immediate Government; And We have also given Power to
the said Governors, with the consent of our Said Council,
and the Representatives of the People so to be summoned as
aforesaid, to make, constitute, and ordain Laws, Statutes,
and Ordinances for the Public Peace, Welfare and Good
Government of our said colonies, . . . .
Honourable senators, our next defining nation-building
constitutional moment was the constitutional statute of the short
title the 1774 Quebec Act, whose architect was the
aforementioned British soldier-general of the American
Revolutionary War, Guy Carleton, later Lord Dorchester, who
had served in British North America four times and had been
Governor in Chief of Quebec. This act’s long title was An Act
for making more effectual Provision for the Government of the
Province of Quebec in North America. I had noted earlier that, at
the American Revolutionary War’s end, Carleton, the able
soldier-general, had charge of the safe passage and movement of
British soldiers out of America, and the safe exit of British
loyalists and freed African slaves who were fleeing the new
American Republic, headed to British Canada to resettle there.
This British statute, the Quebec Act, 1774, was a large
constitutional advance for His Majesty’s British, Englishspeaking
subjects, and particularly for His Majesty’s Frenchspeaking
subjects, to whom it granted expanded rights and
freedoms. As I said before, the Quebec Act, 1774, had provided
not for government by an assembly, as was later granted by the
Canada Act, 1791, but for government by a governor and a
council. A political and constitutional milestone, the Quebec Act
was printed in the 1930 book Documents of the Canadian
Constitution 1759-1915, selected and edited by Canada’s great
scholar, University of Toronto Professor William Paul McClure
Kennedy. The Quebec Act section XII, in Kennedy’s book, said,
at page 135:
XII. And whereas it may be necessary to ordain many
Regulations for the future Welfare and good Government of
the Province of Quebec, the Occasions of which cannot now
be foreseen, nor, without much Delay and Inconvenience, be
provided for, without intrusting that Authority, for a certain
Time, and under proper Restrictions, to Persons resident
there: And whereas it is at present inexpedient to call an
Assembly; be it therefore enacted by the Authority
aforesaid, That it shall and may be lawful for His Majesty,
His Heirs and Successors, by Warrant under His or Their
Signet or Sign Manuel, and with the Advice of the Privy
Council to constitute and appoint a Council for the Affairs
of the Province of Quebec, to consist of such Persons
resident there, not exceeding Twenty-three, nor less than
Seventeen, as His Majesty, His Heirs and Successors, shall
be pleased to appoint; and upon the Death, Removal, or
Absence of any Members of the said Council, in like Manner
to constitute and appoint such and so many other Person or
Persons as shall be necessary to supply the Vacancy or
Vacancies; which Council, so appointed and nominated, or
the major Part thereof, shall have Power and Authority to
make Ordinances for the Peace, Welfare and Good
Government, of the said Province, with the Consent of His
Majesty’s Governor, or, in his Absence, of the Lieutenant
Governor or the Commander in Chief for the Time
Being. . . .
Honourable senators, Canada’s defining constitutional phrase
was repeated again in our next constituting statute, the Canada
Act 1791, also named the Constitutional Act 1791. Its long title
was, An Act to repeal certain Parts of an Act passed in the
Fourteenth Year of His Majesty’s Reign, entitled An Act for
making more effectual Provision for the Government of the
Province of Quebec in North America; and to make further
Provision for the Government of the said Province. This great
British statute, the Canada Act 1791 was another great and large
quantum constitutional leap forward. A consequence of the
American Revolution and Britain’s loss of the 13 colonies, this
British statute’s new social and political geography divided
Quebec into two new provinces named Upper Canada and Lower
Canada. It granted Britain’s signature constitutional instruments,
being representative government and parliamentary institutions,
to its two new provinces, Upper and Lower Canada, and to both
their English-speaking and French-speaking populations.
This statute’s architect was the remarkable and great British
Whig, William Wyndham Grenville, who was born of an old
British Norman family. Grenville had been Prime Minister
William Pitt the Younger’s Home Secretary in 1789 and his
Foreign Secretary in 1791. Called to the House of Lords in 1790,
Lord Grenville was given the then new ministerial position
named the Leader of the Government in the House of Lords. This
was the precedent for the position of Senate Government Leader,
as Senator Harder knows.
Colleagues, the 1791 Canada Act was driven by Secretary
William Grenville’s great intelligence, his vibrant love of
humanity and his keen sense of justice and fairness. It was
Grenville’s initiative and brainchild, necessitated by the
American Revolutionary War against Britain, and the
apprehension of more wars, such as Britain’s then looming 1793
war with France, and the looming and large War of 1812 with its
United States hostilities against Britain, often expressed as
hostilities against the Canadas.
I note the British North America file always had top priority in
Grenville’s office. His Canada Act established British
parliamentary representative institutions in both Upper Canada
and Lower Canada’s legislatures, both consisting of upper and
lower houses. I note that representative assemblies and
institutions had been well known to the king’s English-speaking
subjects of New France, who were qualified voters — meaning
property owners who held electoral franchises in property — but
not so well known to the king’s French-speaking subjects. The
upper houses, the legislative councils, were composed of
councillors appointed by commissions during life, called life
tenure and life estate in office, which meant the legislative
councillor’s natural life. As proclaimed, the British North
America Act, 1867, section 29 enacted life tenure for senators:
A Senator shall, subject to the Provisions of this Act, hold
his Place in the Senate for Life.
Honourable senators, I note that in 1960 and in 1965
respectively, life tenure and life estate in office for judges and
senators was amended to mean tenure to age 75 years. The
amended British North America Act, 1867, section 29, headed
Tenure of Place in Senate, said:
(1) Subject to subsection (2), a Senator shall, subject to
the provisions of this Act, hold his place in the Senate for
(2) A Senator who is summoned to the Senate after the
coming into force of this subsection shall, subject to this
Act, hold his place in the Senate until he attains the age of
seventy-five years.
Colleagues, Canadian senators’ tenure is similar to the
American Alexander Hamilton’s tenure proposals for the United
States’ Senate. Canadian scholar William Bennett Munroe, in his
1929 book American Influences on Canadian Government,
published by Macmillan Toronto, wrote at page 19:
If Alexander Hamilton could have had his way at
Philadelphia in 1787 he would have inserted in the
Constitution of the United States four provisions which did
not get into that document, to wit: (a) senators chosen for
life; (b) federal appointment of state governors; (c) the right
of the federal government to disallow state laws; and (d) a
general grant of powers to the federal government carrying
with it all residual powers.
Here is the phraseology of Hamilton’s plan on these four
Art. III, 6. The Senators shall hold their places during
good behaviour, removeable only on conviction on
impeachment. . . .
All these provisions, rejected by the Philadelphia
Convention in spite of Hamilton’s urging, went into the
Quebec Resolutions at Sir John A. Macdonald’s insistence.
If Macdonald is entitled to be called the Father of the
Canadian Constitution, it would appear that Alexander
Hamilton has some claim to be designated as its grandfather.
Professor Munroe also wrote at pages 18-19:
This striking similarity in the American and Canadian
apportionment of powers is not a mere coincidence. On the
contrary, we know that the framers of the Quebec
Resolutions had the American proceedings of 1787 in front
of them and were to a considerable extent guided thereby.
Macdonald, for example, had carefully read Madison’s
Debates in the Federal Convention of 1787, including
Alexander Hamilton’s Draft of a Constitution for the United
States, as incorporated by Madison in his book. Macdonald’s
personal copy of this volume is still extant with his own
pencilled notations in its margins. In many instances these
marked passages are the proposals of Hamilton in favour of
making the central government strong.
Queen’s University Professor Arthur Lower, in his 1958 book,
Evolving Canadian Federalism, confirms Munroe’s work.
Lower, in the chapter he himself authored, headed “Theories of
Canadian Federalism, Yesterday and Today,” wrote at page 13:
. . . The present writer was told of this many years ago by
Professor W.B. Munroe, of Queen’s and Harvard, into
whose possession this personal copy had come: Munroe
used this and referred to it in his American Influences on
Canadian Government. . . .
Colleagues, Professor Munroe informs us that John A.
Macdonald said, at page 21:
In moving the adoption of these resolutions in the
Legislative Assembly of Canada, for example, he paid this
high tribute to the American Constitution:
It is the fashion now to enlarge on the defects of the
Constitution of the United States, but I am not one of
those who look upon it as a failure. . . . We can now take
advantage of the experience of the last seventy-eight years
during which the constitution has existed, and I am
strongly of the belief that we have, in a great measure,
avoided in this system which we propose for the adoption
of the people of Canada, the defects of which time and
events have shown to exist in the American constitution.
Honourable senators, I end now by noting yet again Sir John
A. Macdonald’s undeniable genius. About this, Professor Munroe
informs us, at page 20, that in 1864, John A. Macdonald had
drafted 50 of the 72 Quebec Resolutions.
I thank senators for their attention. I hope senators have found
this information as exciting as I have. I hope for senators to share
some of my enthusiasm and affection on this subject.
Colleagues, it is important to know where we came from. We
must understand that, when the Americans drafted their
Declaration of Independence, it was poetic:
We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness.
Canada never had such poetry in our Constitution. We had
“peace, order, and good government,” which we have had for
150 years.
Thank you, honourable senators.
The Hon. the Speaker: If no other senator wishes to speak,
this matter is considered debated.
(Debate concluded.)