Provincializing Constitutions: History, Narrative, and the Disappearance of Canada’s Provincial Constitutions

The “disappearance” of Provincial constitutions, certainly in Nova Scotia’s case, has enabled an ever increasing number of constitutional actions by fiat, at multiple levels of government. Whether through the loss of Nova Scotia’s upper house in 1928 or its municipalities and their separate school districts, health boards, powers and infrastructure since the 1990s, checks on higher order government have been repeatedly involuntarily yielded, in opposition to previous constitutional arrangements and without any semblance of democratic impetus.

The “unique qualities” of the notwithstanding clause, in comparison to other Western constitutions, allows any constitutional unit; Federal, Provincial or “Municipal”, to over-ride any number of basic human rights on a five year continuance, with just a simple majority (achieved with a decided minority of the vote). Without a requirement for judicial review, and with the onus on those challenging the government, a chilling effect is created helping to propel these changes into omnipotent government dictate, without the need of going through the charter step of specifying the rights to be withheld.

Any failure by a “citizen” or legal amateur to successfully challenge such an action could add fuel to the fire, leading to an inability for further challenge, or creating precedent for future violations in other jurisdictions. Legal experts sometimes show interest in constitutional affairs east of Montreal and make occasional peeps, but they rarely engage in any meaningful constitutional defense that would challenge central Canadian omnipotence over provincial affairs, or provincial omnipotence over local affairs, adhering to the crown as they do, and not people.

The notwithstanding clause itself, like the Charter or the Constitution Act 1982 that contains it, was imposed by fiat by a foreign monarch and by Canadian elected officials not expressly elected for that very important, separate, constitutional role, without any kind of plebiscite or vote held nationally or sub-nationally to show consent to the changes contained within, so much like the coup that was “confederation”, all over again.

Quebec’s resistance provided the only political or legal dissent to the changes, yet wrapped up in Quebec’s own nationalistic, nation within a nation, linguistic and cultural interests, not broad constitutional provisions for all. Quebec is a state, Quebec and Ontario operate as the Province of Canada that they were previous to 1867 on a constitutional level; the rest of the colonies in a colony of colonies masquerading as a country, not to mention its Territories, are carried along like ticks, forced to feed off the blood of the mother organism, “Canada”, which seems to stop at nothing to enforce a continually increasing state of dependency on its Central Canadian ideology of forever serfdom.

Disconnecting previously long-held constitutional rights, rights held by a relative few at first to be sure, but in ever growing classes throughout time, essential constitutional protections — such as a vote, such as property rights, freedom of conscience, freedom of speech, of the press, freedom of assembly, the right to trial by jury, mobility rights and other spirited utterances — for individuals to guard against future outbreaks of past horrors — like slavery, like serfdom, like communism and fascism, the vast majority of human history that has been a vast pool of pain and suffering for the vast majority of people, after all — seems to be the constitutional outcome of every decision, regardless of what funding announcement and program policy is introduced alongside it. A program or policy that has no constitutional protections, being predicated on the standard of a simple majority override, from a decided minority vote, at any level of government, on a five year continuance, imposed by this “Charter”.

As respectfully as possible, and without any intention of making a comparison to these horrors of the past, how many concentration camps can a nation build in five years? How many continuances are needed to rid the country of an ever evolving group of “others”? From plain reading, from the powers afforded by the constitution, any number of horrible consequences can be easily discerned from this document imposed by fiat, constantly lauded for being the opposite of what it is. Harbinger of rights and freedoms? In fact, a cheese grater of dis-allowance, except for what a crown specifically allows, except for when a crown decides it disallows it.

Dragging everyone back to a time before the Magna Carta, constitutionally. Unending bureaucracy and obfuscation of responsibilities; appointments, installations and monopolies. On the surface it provides a welfare state that can make various claims utilizing any number of unique metrics chosen for their ability to paint a rosy picture, yet below the surface, there’s no real accountability mechanisms or whistle-blower protections, Canada operates as a machine created primarily to satisfy its own needs, as an omnipotent colonial vessel with specific constitutionally defined areas of responsibility, composed of other, smaller yet equally omnipotent colonial corporations, within their other, specific constitutionally defined areas of responsibility.

The “unique qualities” of Canada’s federal constitution are compounded by the “unique qualities” of provincial unicameral ram-fest legislatures, there’s no Provincial Senate to provide sober second thought on any constitutional changes. The “unique qualities” of a federalism bereft of a sub-national written constitution prevents checks on higher-order government and protections for lower order governments, everything is a constitutional issue and at the same time nothing is a constitutional issue; so many concepts that are central tenants of Federalism in free countries are missing here, by design.

Some will proclaim that Nova Scotia’s constitution is to be found in the BNA, as mediated by the Statute of Westminster and the Charter. The BNA in section 88 specifies the Constitution of Nova Scotia’s Legislature “continue(s) as it exists at the Union until altered under the Authority of (the) Act”, yet Nova Scotia’s Provincial constitution is unwritten, much more like a sandbar than a foundation made of stone. Constantly buffeted by wave after wave of partisan and other sources of interference, central institutional implements are always up for grabs to improve “efficiency”, or any other number of euphemisms for corrupt interference.

This paper is worth a read if you have interest in the mechanisms and justifications by which Canada’s constitutional environment allows units to engage in a race to the bottom when it comes to constitutional rights – from the Imperial or Federal level to Nova Scotia, or in the way Nova Scotia has inflicted a similar kind of tyranny on what were once its municipalities.

“Constitutional scholarship in Canada since Confederation has been characterized by two primary narratives. The dualist narrative, which characterized constitutional scholarship between the late-nineteenth and mid-twentieth centuries, focused on the parallel developments of provincial and federal constitutions. The monist narrative, which has become the dominant model of interpretation since the mid-twentieth century, focuses on the federal constitution as a singular foundation of constitutionalism in Canada. As a result of the shift from dualism to monism, provincial constitutions have become largely ignored in Canada and subsumed by the “mega-constitutional” politics of the federal constitution. This paper examines provincial constitutions to highlight the significant reorientation of constitutional scholarship in Canada over the past 150 years, which has become primarily focused on post-Confederation constitutional history and written constitutionalism.”

“The diminishment of provincial constitutions in Canada is less a reflection of their secondary significance than the changing narratives of the constitution in Canada, which over time have come to focus almost exclusively on the federal constitution as the singular legal architecture of the state in Canada…a reorientation in constitutional and legal scholarship over the past one hundred and fifty years has produced a constitution that is largely unmoored from the pre-Confederation foundations of its development.”

“The disappearance of provincial constitutions is directly connected to the diminishing place of pre-Confederation history in modern legal scholarship, a process that began following the turn of the twentieth century.”

“In the case of Nova Scotia, the 1749 Instructions to Edward Cornwallis, the colony’s first British governor, established a legislative and judicial framework that are considered foundations of the province’s constitution.”

Even in this relatively comprehensive account of Nova Scotia’s provincial constitution, in that it admits it exists; Nova Scotia’s constitutional foundations previous to 1749 have been ignored, or are unknown to the author, though by no means is the author alone in being unaware. There is a long lineage of revisionist scholarship, Beck included, that peg the constitutional beginnings at 1749 with Cornwallis, but they are much older, and murkier, in nature.

Nova Scotia as defined by the Charter of Massachusetts Bay in 1725, by Gov. Phillips’ instructions in 1719 that formed the basis of our Supreme Court and Council of 12, Nova Scotia as defined by the Charter of Massachusetts Bay in 1691, Nova Scotia as proprietary colony and baronetcy in 1621 and 1625 on behalf of Sir William Alexander under James I, Nova Scotia as claimed under Virginia’s Charter of 1606; Nova Scotia’s constitutional lineage even when dealing with just the English colonial, is much older and deeper than anyone seems to want to admit. There seems to be a constitutional house of Cards predicated on ignoring the facts in order create central Canadian constitutional primacy.

A written sub-national constitution allows the protection of important rights and institutions, especially under a regime with clearly defined sub-national constitutional powers. Can residents of a jurisdiction be considered citizens, can their system of government be considered a democracy, if the standard of action in cases of constitutional questions is bereft of even the most basic mechanisms of democratic intent? Is there no requirement to show popular support for a particular course of action, even if that reform makes a previously elected body appointed, even if it means dissolution of said body?

Is this the spirit of democracy that people wish to see as a standard around the world? Is this the spirit of democracy that others wish for their own jurisdictions? I await the adoption of these measures by those who hold up a colony of colonies masquerading as a country as an example of democracy to emulate.

Will States to our south have their Senates dissolved, when will they dissolve their cities and strip citizens of powers over local institutions, will they dissolve those same local institutions, all by fiat? Will they give up their written constitutions for nebulous decrees and guarantees that history shows to be completely perfidious and meaningless?

Our “Constitutional” monarchy will forever be at odds with its former namesake, it is designed for a full return to the latter, as soon as possible.

The concept of majority rule should be central to constitutional questions. The ability to encode basic rights and privileges for all, that apply to all parties, that stand as testament to shared facts and values moving forward, should be a basic political right and a basic human right, even in sub-national jurisdictions. Basic human rights shouldn’t be perpetually at risk from ex-post facto laws and reorganizations under guise of “efficiency” that routinely deliver obfuscation over improvements.

Canada stands in opposition to this standard, to every standard, predicated on tyranny as it is, utilizing the concept of exception at every turn as it does, seemingly in order to destroy the very concept of rule of law. With what’s happened to what were once other British colonies such as Hong Kong, where the bottom has fallen out of their illusions of representative democracy, perhaps the actions taken in Nova Scotia have served as a constitutional template.

Nova Scotia’s role has been that of a Normal School for tyranny, not a balanced democracy. Its constitutional primacy has been obfuscated to allow for layer after layer of skimming operations masquerading as constitutional units, to enforce tyrannical top-down fiefdoms instead of self government.

Canada, as a colony of colonies masquerading as a country, operates as a skimming operation of skimming operations, like a trolling operation against the very idea of the United States. It’s as if Canada were created to propagandize monarchical government, while obfuscating any honest comparison to the only nation on earth founded on the opposite idea, a nation founded against monarchical rule, against ex-post-facto and bills of attainder, founded on a written constitution, on rule of law, on equality for all.

Price, Peter. “Provincializing Constitutions: History, Narrative, and the Disappearance of Canada’s Provincial Constitutions” Perspectives on Federalism, Vol. 9, issue 3, 2017.