Monday, November 14, 2022

History of who divided the powers (wonkish, maybe?)

McGill-Queen's UP kindly sent me a review copy of a thick volume called Law, Life, and the Teaching of Legal History.  It's a festschrift -- Essays in Honour of G. Blaine Baker -- one of those volumes where it is usual to have a mix of contributions on various topics. In Quebec they call this sort of volume Mélanges. I want to come back to the book as a whole another day. 

But today: one of its essays in particular. This one makes a significant contribution to confederation and constitutional history and, as the only essay here on those topics, might be missed.  It's "The Colonial Origins of The Division of Powers in the British North America Act," by Jim Phillips and Tom Collins, at pp. 212-49.

Phillips and Collins, law professor and law student, were looking into what are called Consolidations.  Every so often, commissions of lawyers review all the laws recently passed in a given jurisdiction and "consolidate" them into one thick volume, in which all the repealed laws and sections of laws are jettisoned, and all the new ones are organized by topic and field of law  It's a sort of jurisprudential housekeeping, enabling courts and lawyers to keep up conveniently on current law, and the whole thing is given legislative sanction and published in a thick tome. 

There have been various refinements to the art of consolidation over time, and Phillips and Collins were reviewing how that history had worked out in the Province of Canada, 1841-67. The first thing they noticed was that the consolidators of the day had produced not one but three consolidations. There is one for the Province of Canada in general, and one each specifically for Canada West/Upper Canada/Ontario and for Canada East/Lower Canada/Quebec. The province of Canada was not a federation; it had one legislature and one legislature only. But during its quarter-century of existence, differing legal codes, family laws, property-holding systems, and such meant the two "sides" of the province still operated rather differently. So the ostensibly united province made some laws for the province as a whole, some for Upper Canada exclusively, and some for Lower Canada exclusively.

Turn away from these minutiae for a moment, and consider the division of powers, those long lists in Section 91 and 92 of the Canadian Constitution that put every power the constitution makers could think of into either the federal realm or the provincial realm.  Read confederation history, and it seems that between June and September 1864, the cabinet of the Province of Canada somehow sorted out that whole list and all its detailed distinctions of what would be federal and what provincial, in time to present the whole thing at the confederation conferences of Charlottetown and Quebec, pretty much as a fait accompli.

This has always been one of the magic boxes of confederation history. If you read the major histories (mine included) or the textbook surveys, the elaborate and highly political listings of powers may seem almost to have been pulled out of a hat, as if it just ... happened. 

What Phillips and Collins noticed in those old Consolidated Statutes is that the matters regarding which the unified Province of Canada was legislating separately for Upper and Lower Canada are close to identical to the list of provincial powers in the BNA Act. The matters for which it was legislating for the whole province are, you guessed it, very similar to the list of federal powers. In other words, the constitutional division of powers we still live with was not produced in some whirlwind of inspiration in mid-1864. Phillips and Collins want to tell us it had been developed by trial and error over twenty-five years of lived experience in the united, but really "quasi-federal," Province of Canada, ready to be adopted with some tweaks when the new federal Canadian state needed to allocate powers and responsibilities.

Apart from the thought that the Phillips and Collins conclusion is pretty much irrefutable, what really strikes me from all this is how fairly basic documentary research can still be done, and needs to be done, on a subject as fundamental as the shaping of the confederation settlement. Practically every history professor in Canada has to give a confederation lecture from time to time. Too often they seem content with some 'fifties historiography they picked up in high school, with some current ideological or political preferences stirred in. Who goes back to sources and comes back with new insights as Phillips and Collins have done? 

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