Tuesday, October 25, 1864:
[If constitutional history makes you crazy with boredom, let me say the conference only has a couple of days to run. But I'm enjoying this - and the numbers seem to be holding up.]
So today they get back to the list of provincial powers, having concluded that there will be enumerations of both federal and provincial powers.
They make a number of seemingly minor adjustments, reserve on a detail or two (why "weights and measures"?), and pass the whole thing. But D'Arcy McGee offers a consequential amendment on the "education" heading:
Saving the rights and privileges which the Protestant or Catholic minoriy in both Canadas may possess as to the denominational schools at the time when the constitution act goes into operation.Eventually this will spawn a lot of debate (and recently an Ontario provincial election campaign disaster for John Tory) as to whether it is a sensible compromise or a disgraceful special pleading in favour of a couple of favoured religious minorities. On McGee's motion, however, the minutes simply say, "Agreed to."
In the evening they pass a motion that says "the laws of the federal parliament shall control and supersede those made by the local legislature and the latter shall be void so far as they are repugnant to or inconsistent with the former." Disallowance -- the power of the feds to stamp out any provincial act they don't like -- enters the equation. Does this entitle the feds to legislate freely even on the subjects just entrusted to the provinces? And how would that square with the right of responsible governments to act on behalf of the people to whose representatives they are accountable. A million constitutional law lectures and nearly as many trips to the Supreme Court and the Judicial Council will be floated on these issues.
They also add some federal responsibilities seemingly forgotten on the original list: Indians. Foreign Affairs.
And they take up some hardly insignificant process questions. The judges of the superior courts, run by the provinces, shall "aid assist and obey" the federal government in criminal law and other matters of federal jurisdiction, "and for such purposes shall be held to be judges and officers of the general government." This may be the germ of principle behind the odd fact that the superior courts are provincially-run, but their judges are federally appointed and paid. (A less principled reason may be that a lot of the delegates are lawyers who expect to be in the federal government and who like keeping open a route to judgeships for themselves and friends.)
Another biggee passes: The House of Commons shall not pass any money bill not first recommended by the cabinet. The government can't spend money without consent of the assembly -- but the assembly can't spend money in ways the responsible ministry doesn't support. Janet Ajzenstat will tell you this is why a lot of prominent political scientists and historians are dead wrong when they repeat that the fundamentals of Canadian parliamentary practise are unwritten conventions.
And another couple of resolutions to shore up the power of disallowance by the feds of "any bill passed by a local legislature." These two will also come up against responsible government principles: can it be legitimate for one government simply to cross out the legislation of another government that is enacting the popular will within its defined sphere of responsibility?
Finally they go back to the resolution of October 13, the one that started with the language about "our colonial condition." They reemphasize they will make no declaration which might fetter them in doing what is best "for the general and local government of the country"
All in all, a substantial day's work. They adjourn at midnight. Back tomorrow.
