During the present round of
constitutional discussions a number of politicians, academics and other
interested observers have called for a broadly based constituent assembly to
consider the whole question of constitutional reform. There are strong arguments
against such a process and a number of reports and studies have rejected the
argument. However, if the present round of constitutional discussions do not
lead to an acceptable agreement there will be strong pressure to consider
another method of dealing with constitutional issues in Canada. The next issue
of the Review will publish extracts from a recent detailed study outlining how
a Constituent Assembly might work. In the meantime we are reprinting a short
article by one of the earliest advocates of a constituent assembly for Canada.
The author is none other than Arthur Beauchesne whose work on parliamentary
procedure is still used in most Canadian legislatures. The following is taken
from a presentation he made to the House of Commons Committee examining
amendment of the British North America Act in 1935. The more things change the
more they stay the same!
When the British North America Act
was passed, the population of the four provinces which formed the Dominion of
Canada aggregated 3,070,601, or less than the present population of Ontario or
Quebec. The total revenue of the Dominion in 1868 was $13,687,928.00 and the
total expenditure $14,071,689.00. The net debt of the country was $75,757,135.
Our railway mileage was 2,278. Motor vehicles were not known; aviation was a
dream. The west was uninhabited except by Indians, half-breeds, fur dealers and
roaming buffaloes. The population of British Columbia was very small since it
was put down in 1871 to 45,000 of which number only about 9,000 were whites. Prince
Edward Island had a population in 1861 of 80,857.
The Act was passed mainly as a
compromise because the legislature was so deadlocked that nobody could form a
government. We were then a colony with a governor who still received elaborate
instructions from the colonial office. There was not question of our
representation in foreign countries; we were not even allowed to negotiate our
own treaties; there were British garrisons in our country; social reform was
looked upon as the last word of dangerous radicalism.
We have since progressed very
materially; our industries have been multiplied; our urban population has
exceeded our rural population; the war and its dire consequences have appeared;
Imperial Conferences have taken place; the British Commonwealth of Nations has
been formed: the Statute of Westminster has altered our status. Most of the
provinces have lived beyond their means, but they have let up on the autonomy
principle in later years. Nobody will doubt that economic legislation in Canada
is more difficult of introduction than in any other country in the world on
account of our dual system of government. The time has come, in my humble
opinion, when the British North America Act, except as to minority rights,
should be transformed and a new constitution more in conformity with present
conditions should be adopted. Amendments here and there would be mere patchwork
which could not last. The people of 1935 are different from those of 1867. What
we want is a new constitution.
By what procedure should it be
adopted? Drafting a constitution is a serious matter, particularly in a
federated country like Canada. Suggestions have to be weighed with calm
deliberation and reconciled with the needs of the nation. Some plan embracing
the whole life of the nation has to be accepted. Geography, natural resources,
avenues of trade, transportation, social legislation and racial harmony have to
be considered. It is idle to think that this can be done in the same formal way
as an amendment to a public statute. The new constitution must leave nobody
with a grievance. A spirit of conciliation should predominate. For these
reasons, the task must be intrusted to an independent body in which all the
elements of the country will be represented. I, therefore beg to suggest an
imposing Constituent Assembly formed of eminent men coming from all parts of
Canada. Provincial conferences, attended by a few ministers meeting behind
closed doors, would hardly satisfy public opinion. The debate should be public.
I submit that a Constituent Assembly, chosen by the provincial legislatures and
by the House of Commons, representing the main political parties and groups in
proportion to the votes given at the last general elections, should meet in
session at Winnipeg and discuss the constitution from all its angles.
I am not stressing Winnipeg. I want
the assembly to sit in a city in the west. It would not be necessary for a
delegate to be a member of parliament, or of a provincial legislature.
Constituent Assemblies have been
resorted to for framing constitutions in many countries. One of the best known
in history was the Assemblée Constituante which sat in Paris from 1789 to 1791
and drew up a new constitution for France. It consisted of 1,200 members. The
population of France was then 24,800,000. The chairman was only elected for two
weeks, as the assembly did not want to give too much authority to any of its
members. The debate lasted from August 4, 1789 to September, 1791.
In 1848, a Constituent Assembly,
consisting of 880 members, was elected by universal suffrage in France for the
purpose of drawing up a new constitution. 7,835,327 electors, or 84 percent of
the population voted. The assembly opened on the 4th of May and was only
through with its constitution on the 4th of November.
When in 1787 the United States
agreed to consider a change of constitution, each state, with the exception of
Rhode Island, sent delegates who assembled at Philadelphia on May 14. The
convention consisted of fifty delegates, and the population of the thirteen states
was then 3,500,000 people, i.e., about the population of Ontario today. George
Ticknor Curtis, commenting on this convention in "The Constitution of the
United States and its History", says:
This body of men, assembled for the
unprecedented purpose of thoroughly reforming the system of government with the
authority of the national will, comprised a representation of the chief
ability, moral and intellectual, of the country; and in the great task assigned
to them they exhibited a wisdom, a courage and a capacity which had been
surpassed by no similar body of law givers ever previously assembled. The world
had then seen little of real liberty united with personal safety and public
security; and it was an entirely novel undertaking to form a complete system of
government, wholly independent of tradition, exactly defined in a written
constitution, to be created at once, and at once set in motion, for the
accomplishment of the great objects of human liberty and social progress. Their
chief source of wisdom was necessarily to be found in seeking to avoid the
errors which experience had shown to exist in the Articles of Confederation.
Naturally, the individual members of the convention were men of widely
different views; the debates extended over four months' time; but the counsels
of the leading spirits at last prevailed—of such men as Hamilton, Madison,
Franklin, Gouverneur Morris, Edmund Randolph and Rufus King. Washington was the
There were 1,200 delegates in the
Constituent Assembly of France when its population was 24,800,000 and 880 when
it was 35,400,000. There were fifty delegates at the Philadelphia convention
when the population of the United States was one-third of Canada's present
population. Considering, therefore, the vastness of our country, the conditions
in the west and in the east, and our bilingual character, we would make no
mistake if we formed a constituent assembly of 223 delegates.
The number of members representing
the Dominion and each province would be equal to one-fourth of the membership
in the Senate, the House of Commons and in the legislatures, including the
Quebec Legislative Council, which membership is now as follows:
Members Representatives of the in
Constituent Legislatures Assembly
Members of the
in Constitutent Assembly
House of Commons-
Prince Edward Island-
Quebec Legislative Council-
I submit that the British government
should be asked to send a delegation. My suggestion is that if the constitution
is passed, the British North America Act should be repealed. I would imagine it
would be a very serious matter for the British government to abolish or
renounce its authority over Canada which was given to it by the British North
America Act. Besides that, there are many other things to be taken into
consideration as to why, if we pass this constitution, we should not ignore
Great Britain. There is, for instance, the question of defence, the question of
Great Britain's interest in America on the Pacific and on the Canadian coast.
The assembly should be convened by
provincial proclamations issued in each province and by a Dominion proclamation
in which it would be clearly stated that the minority rights now guaranteed by
the British North America Act should not even be discussed.
In choosing the delegates to this
Constituent Assembly, due regard should be given to the representation of all
classes. Businessmen, farmers, professional men, scholars and labour men should
be represented. Although the Dominion would send an important delegation, the
assembly should not be a Dominion assembly, but rather an assembly of the
provinces' representatives in consultation with the Dominion.
There ought to be no government
side and no official opposition in such a body, which should work on the lines
of coalition. A committee consisting of the premiers and leaders of the
opposition in the House of Commons and legislative assemblies would have charge
of the agenda and daily order of business which, under ordinary rules, could be
adjusted daily by experienced parliamentary clerks. Speeches ought to be
recorded by Hansard.
I would suggest that the assembly
do not sit in Ottawa, in order that it may not have the appearance of being
dominated, or even influenced, by the Dominion power; and, as the western
provinces are of such paramount importance in the country, I suggest the best
city for the representatives to gather in would be Winnipeg.
The first days of the Constituent
Assembly should be devoted to debating the following motion:
That, in the opinion of this
assembly, it is expedient that the British North America Act should be amended
so as to meet the requirements of present conditions while preserving the
minority rights guaranteed by the said act.
The Assembly would first meet at 11
o'clock a.m. and sit until one, and then from 3 to 6. After a full discussion
on the general principles had taken place, several committees would be formed.
Then the Assembly would adjourn until the committees reported. A draft
constitution would afterward be submitted to the assembly.
At the first meeting of the
Assembly, each province would present its case, as would the Dominion and the
The committees would deal with
every chapter of the British North America Act, and more particularly with
section 91 and 92.
A Constituent Assembly could take
up every question that has been mooted in the past twenty years with regard to
the constitution. For instance, the questions of reducing the number of
provinces, the electing of senators, the question of fisheries, the Companies'
Act, insurance law, the radio, etc., could all then be considered. Conditions
with regard to all these matters are so different from what they were in 1867
that they should be carefully surveyed. Whether our country should be changed
from Dominion to Kingdom is also a subject which might then be discussed. I
would suggest that the country could be called "The Federated States of
After our constitution is in force,
how should we amend it? I do not think it would be advisable again to call a
Constituent Assembly such as I have suggested above. This procedure may be
resorted to when a new constitution has been drawn up, but it does seem a
little absurd to adopt it every time the country feels that some amendment
ought to be made. The right of each province to amend its own constitution as
provided in Section 1 of Section 91 of the British North America Act should be
preserved, but whenever any material amendment to the Dominion or provincial
powers might be needed, a vote of two-thirds of the Dominion parliament and of
the legislatures should be required.
Speaking about questions that may
be debated at the Constituent Assembly may I suggest that subsidies should be
taken up. They should not be paid to the provinces. Those subsidies infer a
certain idea of subservience which is not in keeping with real autonomy. I
would rather have taxation readjusted so the each province would have
sufficient revenue to manage its own affairs without begging support from the
federal treasury. It may be that certain services are too expensive for local
governments, and they should be transferred to the Dominion.