How Does Canada Govern Itself, Or Does Britain Do It?

The British Constitution and the American Constitution, which are very different, are blended in Canada. Like the United States; Canada has a federal form of government. It was copied from the American example, with variations inspired by American experience and Canadian needs.

The division of authority between the Canadian Parliament and the provincial legislatures is much the same as that between Congress and the state legislatures. But instead of leaving the provinces all the power that was not specifically conferred upon the Dominion, in accordance with the American principle, the Canadians adopted the opposite principle. They gave the residue of authority to the federal government. This seemed to be the great lesson taught by our war between the North and the South, during which the framers of the Canadian constitution did most of their work. Thus the Canadian constitution bears the indelible stamp of the American Civil War. In practice, however, the provinces have gained in power through judicial interpretation of the constitution.

Another difference is that no province can legislate on banking or criminal law. These are subjects wholly within the federal field. The criminal law is therefore uniform throughout the country, and so is the banking system.

Our duplicate system of courts, federal and state, was also rejected in Canada. There the same courts, with permanently appointed judges, administer both federal and provincial law. Yet another difference is that the constitution bound the federal government to subsidize the provincial governments.

Canada resembles the United States rather than Britain in having a written constitution. This is the British North America Act (commonly referred to as the BNA Act) of 1867 and its amendments. But if you take it literally it will give you very false notions of how the country is actually governed, as we shall see presently. The reason is that Canada also has an unwritten constitution—like the British—and this governs the operation of the written one.

The most vital part of the Canadian system of government is wholly British and totally un-American. It is the fusion of the executive and the legislative branches of government in the cabinet, which is chosen from the leaders of the majority party in the Parliament at Ottawa. When the Canadians formed their federal union in 1867, they already had this British system in the provinces. They were so convinced by experience and observation that it was better than the American, with its separation of powers and its checks and balances, that they would not consider adopting ours.

The real boss

Americans are sometimes misled by the fact that government in Canada is conducted in the name of the king. By the letter of the BNA Act, the king rules Canada through the governor general, whom he appoints. In turn, the governor general supposedly rules the provinces through lieutenant governors, whom he appoints. But in reality the Dominion government chooses the governor general and the lieutenant governors—who, like the king himself, are only figureheads.

The real head of the federal government, legislative as well as executive, is the prime minister, in whom all power is concentrated and all responsibility focused. He does not rim for election to this high position, nor does he hold it for any fixed period. Moreover there is no law defining it.

The requirements are political rather than legal. The prime minister must be a member of the House of Commons and, more than that, he has to be the leader of the majority party in the House. If he fills the bill, the governor general has no other choice than to appoint him. As prime minister, or real head of the executive, he picks and controls the cabinet. These heads of the various executive departments he selects from his own followers in the House, where he and they remain. There they are answerable to the other members for any and every administrative act.

With the help of his cabinet, the prime minister leads the debates in the House and directs the legislative program. The Senate, unlike ours, is not elected but appointed, has no special powers, and is politically, though not legally, subordinate to the House of Commons. Thus the prime minister runs Parliament as well as the administration. And he can continue in power indefinitely—as long as he remains the acknowledged leader of the House of Commons. But the moment he loses this leadership he has to resign, unless by calling an election he can get a new house that will follow him.

Here is the internal balance of the Canadian constitution, which is quite different from the balance in ours. On the one hand, the members of the House of Commons can turn the prime minister out of office at any time, which enforces his responsibility to them and through them to the people. On the other hand, he can turn the House out to face an election at any time, which gives him a disciplinary control over irresponsible members. As soon as a deadlock appears, it forces a general election, thus ending the deadlock by an appeal to the people.

There is no fixed period for general elections, either federal or provincial. One can be held at any time the government wishes. But there is a limit of five years to the life of the Canadian federal Parliament and the provincial legislatures.

Loosening the reins of empire

Canada got independence without having to fight to it. The American Revolution taught Britain never to tax a colony again. But it also persuaded the British that they should not let the remaining colonies get out of hand or they would break away too. This meant trying to hold them by controlling their governments, and the result was a growing strain in each colony. A little over a century ago two miniature rebellions in Canada startled London into sending out a leading statesman to find what was wrong and how to put it right.

This man was Lord Durham, whose report is a milestone in the history of Canada and of the whole British Empire. He insisted that the only way to keep the colonies was to let them govern themselves as they wished. The magic power of liberty, he proclaimed, would hold the colonial empire together. Soon the British government put his formula to the test, and at once it began to work. That was almost a hundred years ago.

Though mistress in its own house, Canada was a subordinate partner in the Empire. The British government had the legal right to veto any act of the Canadian Parliament, a right that was used once in the early days of the Dominion and never again. Canadian legislation was liable to be overridden by acts of the British Parliament arid could not touch the subject of merchant shipping, which Britain regulated for the whole Empire. Canadian foreign relations had to be conducted, at least formally, through the channel of the British Foreign Office. And Canada was bound by the actions of Britain in declaring war and making peace.

These remains of imperial control were all removed after World War I, in which Canada played an important part and earned the right to equality. Along with the other self-governing dominions, Canada got the right to have its own diplomatic service, inaugurated in 1927 by exchanging ministers with the United States, and later extended by exchanges with many other countries. In the imperial conference of 1926, the following important declaration was unanimously adopted: “The group of self-governing communities composed of Great Britain and the Dominions … are autonomous communities within the Empire, equal in status, in no way subordinate one to another.” After much further consultation between the governments of the Empire, this principle was translated into law by the Statute of Westminster, which the Briitish Parliament passed in 1931.

The last remnants of subordination

Only two limitations upon full Canadian autonomy remain, and these only by Canadian consent. One is in the administration of justice. The highest court of appeals is the Privy Council in London. Canada has stopped all criminal appeals to the Privy Council, and some civil appeals. In all probability Canada will stop the others too when a good solution is found for the problem raised by the second limitation.

The second limitation is that for important amendments of the written part of the constitution Canada has to go to the British Parliament. This may seem strange in light of the fact that the other dominions can amend their constitutions themselves. The explanation lies in Canada’s dual nationality. A formula has yet to be found that would protect the rights of French Canada, the minority, without making amendment too difficult to be practical. Some of the best minds in Canada have been working hard on this problem, and they may soon solve it.

We should also notice another question that worried many Canadians during the years between the two World Wars. They argued that as long as the Dominion retained the British connection the country might he plunged into war by a decision of the mother country over which Canada had no control—as in 1914.

This question, upon which the Statute of Westminster was silent, was finally answered in 1939. When Britain then went to war, Eire declared its neutrality, South Africa wavered on the brink before plunging in, and Canada asserted its independence in this most important decision of all by making its own declaration of war.

Even today many otherwise well-informed Americans cannot quite grasp the fact that Britain no longer exercises any control over Canadian policy. Canadians are more than a little sensitive on this point. There is much truth in the shrewd Canadian jest that the only way Britain might persuade Canada to do anything is to suggest the opposite.

What about imperial teamwork?

Occasional talk that Canada might combine with the other parts of the British Commonwealth of Nations so that all might speak with one voice in international affairs need not be taken seriously. The idea of drawing the Empire together again is an old one that still finds many supporters in Britain and some in Canada. But it is now further from realization than it has been in the past. If there were no obstacles in other parts of the British world—and there are many—Canada alone would block it. On occasion Canada has vigorously asserted its freedom from the mother country’s apron strings.

Look at the peculiar position of Canada and you will see why. This oldest and biggest of the dominions is the only one that is bound up with any power outside the Empire. And Canada is in the shadow of one of the greatest powers on earth.

Primarily because Canada is American as well as British, Canadians have steadily and successfully resisted pressure from Britain and from other dominions to establish in London any new Empire government in which they would all share. Because Canada is American as well as British, it felt—long before President Roosevelt said so in 1938—that the Monroe Doctrine gave a security to match that of the British navy. Every peacetime proposal for cooperative imperial defense, therefore, foundered in Canada.

Also, Canada’s economic life is much too closely knit with that of the United States to be torn away and tied up tight in an imperial customs union. The nearest Canada ever came to that was in the Ottawa agreements of 1932. But that was when our Smoot-Hawley tariff had dealt Canada a staggering blow. And see what happened afterward. When Canadians found that we too were willing to negotiate for freer trade, they eagerly sought an agreement with us. They even went to London to pry open the imperial agreements of 1932 so that the Dominion might get still freer trade with us as part of an arrangement for freer Anglo-American trade.