You Can Now Watch the Liberals Expunge Dominion Day from Canadian History


David Smith, Destroyer of Dominion Day, Brought Down Goliath

CPAC has recently done Canadians a great public service by uploading all the video footage of the proceedings of the House of Commons from its debut in October 1977 to present.

As such, we can now see for ourselves how the Liberals purged Dominion Day from our history.  The damage begins at 3:55 in this video chronicling the proceedings from 9 July 1982.

CPAC provides the following summary of that day’s proceedings:

“The House quickly completes the second reading, in-committee review, and third reading of Bill C-201, a bill to amend the Holidays Act to replace Dominion Day with Canada Day; participating in the debate are Hal Herbert, David Smith, and Mark Rose.”

That’s putting it mildly. Indeed, the House “quickly completed” all stages of debate, minus First Reading, in only 5 minutes. Worse still, the Commons lacked quorum when it did. The video makes it so much worse. The

The video shows what the Debates do not record: namely, the haplessness of  Deputy Speaker Lloyd Francis (Liberal MP for Ottawa-West), who didn’t seem to understand how to preside over the proceedings and simply parroted whatever the clerk whispered to him.

Incidentally, Standing Order 28(1) of the House of Commons still refers to the holiday on 1 July as “Dominion Day.” I wouldn’t be surprised if the Trudeau II government introduced a motion to the Procedure and House Affairs Committee to scrub that overlooked vestige of Dominion Day from history, too. The other two vestiges of the Dominion of Canada that have escaped notice are the Dominion Sculptor and the Dominion Carillonneur.

Here is my summary and critique of the Liberals’ parliamentary subterfuge of 9 July 1982 from my article “Lament for a Dominion,” which appeared in The Dorchester Review in 2015.

Some Liberal and New Democratic backbenchers mounted their final assault against Dominion Day on 9 July 1982, at 4:30 on that Friday afternoon, when thirteen MPs rammed the bill through Second Reading, Committee, Report, and Third Reading in mere minutes in order to change the name of Canada’s national day from Dominion Day to Canada Day – all without the quorum of 20 members mandated by section 48 of the British North America Act, 1867. The official transcript of this incident takes up only one page’s worth of space in the Commons Debates, and the House immediately adjourned thereafter. Worse still, Speaker Sauve let the Deputy Speaker’s knavish tricks stand and thus defied section 48 of the British North America Act.

Liberal MP Hal Herbert moved that Bill C-201 be given Second Reading and referred to its corresponding Standing Committee, and the Deputy Speaker agreed. The bill moved through the House of Commons with such haste that it caught the Conservative MP for Nepean-Carleton, David Baker, off guard. The transcript shows that he asked, “What is going on?” just before the Deputy Speaker asked for the unanimous consent of the House that the bill be dealt with by the Committee of the Whole[1] His question went unanswered. David Smith, then a Liberal MP and between 2002 and 2016 a Liberal Senator Senate Liberal, rose on a point of order in favour of passing the bill. Liberal MP for Ottawa-West, Cyril Lloyd Francis, chaired the Committee of the Whole and passed the bill: “Clause 1 agreed to. Preamble agreed to. Title agreed to. Bill reported, read the third time and passed.”[2] After participating in this charade and mockery of the parliamentary process, New Democratic MP Mark Rose proudly proclaimed, “I think this is a day on which to develop and to celebrate our new holiday. It is only appropriate that, in celebrating our new holiday called Canada Day, we should at least take a holiday of 55 minutes for the afternoon”[3] — as if the Senate did not first need to approve the bill, or the Governor General give it Royal Assent.

All had transpired in a few minutes — the transcript of this incident takes up only one page (p. 19201) in the Commons Debates — with the concurrence of the Deputy Speaker, Lloyd Francis. Worse still, rather than reverse her deputy’s knavish tricks owing to a lack of quorum required by section 48, Speaker Jeanne Sauvé let the change stand. In his triumphalism, Rose brazenly glossed over the parliamentary coup d’état in which he had just participated.

In fact the House of Commons acted unconstitutionally and did not validly pass this bill, because section 48 mandates that a quorum in the House of Commons is 20, not 13: “The Presence of at least Twenty Members of the House of Commons shall be necessary to constitute a Meeting of the House for the Exercise of its Powers, and for that Purpose the Speaker shall be reckoned as a Member.” For example, later in the same year, on November 16, having failed to reach a quorum even after ringing the bells to summon more Members, the Speaker adjourned the House (Debates, p. 20729). For this reason alone, the bill should not have regarded as legitimately passed onto the Senate, and the Senate should have rejected it. In addition, this private member’s bill was not, and could not have been construed as, a matter of confidence in the Trudeau government, so rejecting it would not have threatened the government’s parliamentary position.

One argument is that Speaker Jeanne Sauvé ultimately should have allowed the debate to stand despite the fact that the Commons fell short of its constitutionally-mandate quorum of 20 MPs because none of the MPs present during the debate protested the lack of quorum. This argument is flawed for two reasons. First and most fundamentally, the Constitution of Canada is the supreme law of the land, and though the House of Commons has the authority to control its own internal affairs, its Standing Orders must conform to the Constitution. If the Standing Orders and the Constitution come into conflict, the Constitution must prevail to the extent of the inconsistency. Second, David Baker probably would have objected at the time if he had grasped the significance of the parliamentary usurpation that his colleagues were in the middle of orchestrating. Conservative Senator David Walker noted that the House of Commons passed the bill with only 13 members and “to make sure that the bill slipped through, a member asked for ‘unanimous consent that the clock now read five o’clock’” so that the House adjourned immediately after passing the bill, thus precluding any further objections to it that day.[4] Since the House of Commons failed to uphold the Constitution, the Senate should have done so by rejecting the bill.

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[1] Canada. House of Commons, Debates, 32nd Parliament, 1st Session (9 July 1982) at 19201 (David Baker).
[2] Ibid.
[3] Ibid., 19202.
[4] Canada. Senate, Debates, 32nd Parliament, 1st Session (3 August 1982) at 4744 (David Walker).

Posted in Dorchester Review, History of British North America | Leave a comment

Jacob Rees-Mogg and Jeremy Corbyn Expose the Futility of the Fixed-Term Parliaments Act


Andrew Marr Interviews Jeremy Corbyn

Sometimes nerdy political historians and political scientists could be accused of enjoying political shenanigans or borderline constitutional crises, like the Prorogation-Coalition Controversy of 2008, because they’re “interesting.” They are indeed interesting. But they are, more importantly, instructive and revealing.

I have experienced such a “teachable moment” myself over the Fixed-Term Parliaments Act and its procedure for early dissolution that requires a two-thirds super-majority in favour of the motion “That there by an early parliamentary election.” I’ve been following this issue of fixed-date elections in Canada and fixed-term parliaments in the United Kingdom for over five years, but this idea did not occur to me until I saw the Fixed-Term Parliaments Act in action — and it would probably never have occurred to me unless I had seen it in action. I used to regard these European-style fixed-term parliaments laws as vastly different in principle from our near-useless fixed-date election laws in Canada, because I got too caught up in the process and lost sight of the principle.

Two disarmingly simple comments by Conservative MP Jacob Rees-Mogg, who has consistently opposed the Fixed-Term Parliaments Act and voted against it in the last parliament, and Labour MP and leader Jeremy Corbyn, have exposed the futility of the Fixed-Term Parliaments Act. It does not create absolute certainty in the timing of general elections, and it does nothing to change the incentives that drive partisan politics.

On 19 April 2017, during the debate over Prime Minister May’s motion that there be an early general election, Conservative MP Peter Bone pointed out that the motion for an early general election had put the opposition in an intolerable political bind which would force them to vote in favour of said early general election:

“If the House does not agree to a general election, it will not happen and the Government will continue in office. Any Opposition Members who did not want a general election would be very strange creatures indeed. Any Opposition Members who sat on their hands and did not vote would be regarded as impotent Members of Parliament.”

Rees-Mogg then posed a rhetorical question, which reveals that he was right all along about this stupid legislation, to his Conservative colleague:

“But does this not demonstrate why the Fixed-term Parliaments Act can never work? No Opposition can sensibly say that they would prefer a Government they oppose to continue in office, rather than having a chance to defeat them. The Act does not therefore fit within our constitution, and it ought to go.”

Sadly, Peter Bone did not seem to grasp the significance and obviousness of Rees-Mogg’s statement. He replied:

“I rarely disagree with my hon. Friend, but I believe that these events are proof that the Act is working. I believe that we will have the required majority. […] Despite the party politics, this is a great day for Parliament and a small step forward for parliamentary democracy.”

Rees-Mogg was not suggesting that the motion would fail to attain the required two-thirds super-majority — to the contrary, he was saying that it would be inconceivable that such a motion would not meet that threshold, which, in turn, exposes the Fixed-Term Parliaments Act’s uselessness and futility as a means of preventing early general elections.

You can watch the exchange between Jacob Rees-Mogg and Peter Bone on video as well, from 14:10.50 to 14:12.31.

Jeremy Corbyn appeared on Andrew Marr’s show on 23 April 2017 and confirmed Rees-Mogg’s interpretation. Marr pointed out that Corbyn’s Labour Party could, in theory, have prevented this early general election from happening by voting against Prime Minister May’s motion “That there be an early parliamentary election” and thereby denying the motion the two-thirds super-majority that it required. This portion runs from 1:00 to 1:07 in this video.

Marr asked, “You could have stopped it [the early election] happening though, and you didn’t. Why?”

Unusually for him, Corbyn gave a very simple and straightforward answer: “Because opposition parties want to be in government.”

Indubitably! This is so obvious that I needed to see one of the two early election mechanisms of the Fixed-Term Parliaments Act in action, as we have over this last week, before I could truly wrap my mind around it and appreciate the elegant simplicity of it all.

In Westminster parliamentarism, Her Majesty’s Loyal Opposition acts as an alternative government, or government-in-waiting, and thus seizes upon any opportunity to form government itself. Supporting Prime Minister May’s motion for an early general election offered the Labour Party the best means of achieving its objective of forming government.

John Pepall advanced a similar argument in his under-rated book Against Reform: even Continental European-style fixed-term parliaments laws do not prevent a government, which is determined enough, from defeating itself and obtaining an early general election. Article 38 of Germany’s Basic Law provides that elections to the Bundestag take place on fixed terms every four years. However, Articles 67 and 68 of the Basic Law provides a loophole similar to one of the procedures in section 2 of the Fixed-Term Parliaments Act (but not that which May used). Governments can be replaced mid-parliament only through votes of constructive non-confidence under Article 67. But under Article 68, the Chancellor can arrange for the defeat of his own government by ensuring that some of his own supporters abstain from a crucial vote and thereby produce an artificial defeat:

“Where a motion of the Chancellor for a vote of confidence is not carried by the majority of the members of the House of Representatives [Bundestag], the President may, upon the proposal of the Chancellor, dissolve the House of Representatives [Bundestag] within twentyone days. The right of dissolution lapses as soon as the House of Representatives [Bundestag] elects another Chancellor with the majority of its members.”  

This is precisely what Helmut Kohl did in 1983 and what Gerhard Schroder did in 2005.[1] Kohl went on to serve as Chancellor of West Germany until 1990 and continued uninterrupted as Chancellor of the unified Federal Republic of Germany until 1998. Schroder soon found himself replaced by Angela Merkel.

While Continental European-style fixed-term parliament laws, of which the Fixed-Term Parliament Act is an example, can make early dissolution more difficult in theory, they only make obtaining a dissolution slightly more difficult in practice. And in principle, they do nothing to change the incentives under which political parties operate in Westminster systems: the government wants to stay in government, and the opposition wants to become the government. 

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[1] John Pepall, Against Reform (Toronto: University of Toronto Press, 2010), 26.

Posted in Dissolution, Fixed-Date Elections | 1 Comment

Historical Resources on the Proceedings of the House of Commons and Senate


Bob Rae on 12 December 1979

Recently, two excellent historical resources on the proceedings of the Parliament of Canada have become readily available online. Many of you would join me in finding them useful and interesting.

First, the historical debates and journals of the House of Commons and of the Senate from 1867 to 1993 (the 1st Parliament to the 34th Parliament) are now available online, in both official languages.

Second, the Cable Public Affairs Channel, CPAC, has done us a great public service by posting online the entirety of its archive of the televised proceedings of the House of Commons, from their debut in October 1977 (the 30th Parliament) to 2017 (the 42nd Parliament). We can now easily access these 40 years’ worth of televised debates of proceedings of the House of Commons. If you type “House of Commons Debates — xMonth yDay, zYear” in the search bar of the video archive, you can watch for yourself these 40 years of our political history. We were one of the first countries (if not the first) in the world to start broadcasting the proceedings of its lower house on television. C-SPAN did not start televising the US House of Representatives until two years later, in 1979.

I had a bit of fun with this earlier and watched the downfall of the ill-fated Clark government on 13 December 1979, which I mentioned in my previous entry. A young Bob Rae had introduced the New Democratic Party’s amendment to Finance Minister Crosbie’s budget that brought down the government on 12 December 1979.

I noticed that in the 1970s and 1980s, the cabinet and shadow cabinet actually looked at each other when they posed and responded to questions. Strictly speaking, they still addressed the Speaker of the House by referring to their colleagues in the third person in most cases — though they did sometimes slip in the second person and say “you” –, but in reality, they were talking to one another because they were looking at one another. Frankly, I’d prefer to return to that custom. Stephen Harper demonstrated a certain contempt for his colleagues on the opposition desks by literally addressing all his remarks to the Speaker, ostentatiously turning himself toward the Speaker’s chair and buttoning up his jacket whenever he stood up, and refusing to look members opposite in the eye.

Not surprisingly, Brian Mulroney provides a distinct contrast. On 11 December 1985, around 29:00, Prime Minister Mulroney slipped into the second person, and you can see that he alternates between looking at the Speaker, Liberal MP Lloyd Axworthy who had asked him a question, and other members of the House.

Dale Smith has noted that our House of Commons lacks the British debating culture of witty banter and is instead characterized by crassness. This is certainly true today, but it probably wasn’t true in the 1970s and 1980s.

Anyway, have fun geeking out over the archives!

 

 

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How the General Election of 2017 Will Occur in Practice


Time’s up.

Introduction 

Earlier today, I was very confused to see that the Westminster Parliament is still sitting and conducting business. After all, MPs voted by a huge margin — well above even the two-thirds super-majority — to go to an early general election pursuant to the Fixed-Term Parliaments Act.

I committed the fallacy of mirror-imaging by presuming that the Mother of Parliaments would proceed with this matter in the same way that her wayward child the Parliament of Canada would. Here when the government loses a vote of confidence in the Commons, the House adjourns itself, and the Prime Minister typically advises the Governor General to dissolve parliament and issue the writs for a general federal election later that same day.

But this is not the case in the United Kingdom. First, I shall review the process of dissolution in the United Kingdom and then delve into the “Wash Up,” the week or two between a loss on a vote of confidence (or, in this unprecedented case, the successful passage of the motion to hold an early general election under the Fixed-Term Parliaments Act) that comes before dissolution and the general election.    

The Practice and Procedure of Dissolution in the United Kingdom

The Fixed-Term Parliaments Act, 2011 — a piece of legislation whose radicalism is frequently under-estimated — has put the British Crown’s authority over dissolution into abeyance again, such that neither the Queen nor the Prime Minister and Cabinet play any role whatsoever in dissolving parliament.

By way of contrast, the general election of 2010 occurred under the old procedure, which relied on three steps set out in one proclamation. The Queen issued this proclamation “by and with our advice of the Privy Council,” to dissolve one parliament on 12 April 2010, instruct the Lord Chancellor to issue the writs of election, and summon the next parliament on 18 May 2010. [1]

The new British procedure under the Fixed-Term Parliaments Act, 2011 first played out for the general election of 2015. It includes three steps for dissolving the parliament, issuing the writs of election, and summoning the next parliament, but the first now flows from the authority of The Fixed-Term Parliaments Act itself and therefore no longer stem from the executive authority of the British Crown.

First, Parliament dissolves by efflux of time in accordance with section 3(1) of the act.

The Parliament then in existence dissolves at the beginning of the 17th working day before the polling day for the next parliamentary general election as determined under section 1 or appointed under section 2(7).

Second, pursuant to section 3(3), the Lord Chancellor and the Secretary of State issue the writs of election for the United Kingdom of Great Britain and Northern Ireland’s 650 constituencies.

Once Parliament dissolves, the Lord Chancellor and, in relation to Northern Ireland, the Secretary of State have the authority to have the writs for the election sealed and issued (see rule 3 in Schedule 1 to the Representation of the People Act 1983).

Third and finally, the prime minister advises the Queen to issue a proclamation summoning the next parliament on a certain date, now in accordance with section 3(4)(a).

Once Parliament dissolves, Her Majesty may issue the proclamation summoning the new Parliament which may— (a) appoint the day for the first meeting of the new Parliament.

As the Cameron-Clegg government stated in this press release in 2015, “Parliament has been prorogued and will automatically dissolve on 30 March under the Fixed-term Parliaments Act.[2] It adds, “The prime minister will ask Her Majesty to summon the new Parliament to meet on Monday 18 May,” which means that the Queen still summons the new parliament on the prime minister’s advice – but this authority now flows from section 3(4)(a) of the Act and no longer purely from the prerogative. The London Gazette records the proclamation summoning the next parliament for 18 May 2015.[3] The proclamation also reiterates that the Lord Chancellor shall issue the writs of election.

The Fixed-Term Parliaments Act, 2011 put the executive authority over dissolution into abeyance; the Westminster Parliament can now ordinarily be dissolved only by efflux of time, or in two extraordinary circumstances set out in the statute, by the will of the House of Commons itself. Section 2 of the Act outlines these procedures. In one case, parliament may be dissolved early if two-thirds of MPs pass a motion “That there shall be an early parliamentary general election.” In the other case, if the Commons votes non-confidence in Her Majesty’s Government by simple majority (“That this House has no confidence in Her Majesty’s Government”) but subsequently fails to pass a confirmation vote for a new government (“That this House has confidence in Her Majesty’s Government”) within 14 days, then Parliament shall automatically dissolve in order to break the deadlock. The defeated government would remain in a caretaker capacity during the ensuing election and until the new Parliament meets and passes a confirmation vote in favour of a new government. But the Queen no longer dissolves parliament on the advice of the prime minister or under any circumstances whatever.

On 18 April 2017, Prime Minister Theresa May announced that she would seek an early general election under the terms of the Fixed-Term Parliaments Act in order to reaffirm her mandate to manage the United Kingdom’s secession from the European Union under Article 50 of the Treaty of Lisbon and the European Union (Notification of Withdrawal) Act. On 19 April, May tabled the motion “That there shall be an early parliamentary general election,” and it won the support of 522 MPs, putting it well above the two-thirds super-majority that the Fixed-Term Parliaments Act requires. As per usual British practice, this parliament will enter a “wash up” phase, where it passes non-controversial legislation on which the government and opposition can agree, until it dissolves on 3 May under the authority of section 2(2) of the Fixed-Term Parliaments Act.[4] The general election itself occurred on 8 June 2017 pursuant to section 3(1) of the said act.

The Wash Up: Perhaps We Could Clean Up Our Act and Learn from the Mother Country

This “wash up” phase speaks to the maturity of British parliamentary traditions and shows that British parliamentarians can compartmentalize their functions better than ours can. The opposition can vote down the government — or, in this case, support the government’s motion to go to an early election — without all the omnipresent bitter acrimony that we saw in Canada in 2005 and 2011, when the Commons defeated the Martin government and Harper government, respectively, on motions of non-confidence. In 2005, the House adjourned immediately after the Martin government lost a vote of confidence on division. The same pattern held in 2011. Prime Minister Harper moved a motion to adjourn proceedings immediately after the government lost a vote of confidence on division. Our parliaments never met again. All legislation died on the Order Paper.

The Wash Up supports other procedures and prevents all legislation from being needlessly sacrificed. First, the Westminster Parliament is normally prorogued before being dissolved. This is because the British have also retained the prorogation ceremony in the House of Lords, which also serves as a forum for giving Royal Assent in Parliament Assembled to all remaining bills from that parliamentary session and the Wash Up. The Sovereign has not presided over it since 1854, and the Lord Chancellor has read the prorogation speech ever since. Prorogation by proclamation is almost unheard of in the United Kingdom, but it has become the norm in Canada. The Westminster Parliament’s website even says, Prorogation is marked by a ceremony in the House of Lords.”

Prorogation by ceremony in parliament assembled, instead of by proclamation, used to be the norm in Canada as well. The Governor General or Deputy Governor General would preside over a ceremony in the Senate, grant Royal Assent to all bills passed in that parliamentary session, and then prorogue that session by a closing speech from the throne analogous to the speech from the throne that opens a session of parliament. Parliament would remain prorogued for a few weeks or months, and then the Prime Minster would advise the Governor General to dissolve it, as with the 14th Parliament.[5]

The year 1979 provides an interesting study in contrast because it just so happened that both the Prime Minister Callaghan’s Labour government and Prime Minister Clark’s Progressive Conservative government lost votes of confidence. This is a good, direct comparison, because the procedure under the Fixed-Term Parliaments Act did not exist in 1979. Our Houses of Commons followed the same general procedures then.

As you can hear from 1:15 to 1:40, immediately after losing a vote of non-confidence, Callaghan said:

“I shall propose to Her Majesty that Parliament be dissolved as soon as essential business can be cleared up. And I will then announce as soon as possible the date of dissolution, the date of election, and the date of the meeting of the new parliament.”

Then from 1:49 to 2:13, Margaret Thatcher, Leader of Her Majesty’s Loyal Opposition and of the Conservative Party, affirmed that the Conservatives would agree to expedite essential business:

“As the government no longer has authority to carry on business without the agreement of the Opposition, may I make it quite clear that we shall facilitate any business which requires the agreement of the Opposition so that the dissolution can take place at the very earliest opportunity and the uncertainty be over.”

Frankly, this is what a mature country does. Canada is still a petulant, puerile adolescent in terms of its parliamentary development — and it shows.

The House of Commons defeated the Clark government on 13 December 1979 thanks to Joe Clark’s unpardonable stupidity and innumeracy. You can see the results from 3:17 to 3:30.

“The government has lost a vote on a matter which we have no alternative but to regard as a question of confidence, and I simply want to advise the House that I will be seeing His Excellency, the Governor General, tomorrow morning.”[6]

Prime Minister Clark then addressed the House briefly the following morning and informed his colleagues that he had spoken with the Governor General, who had agreed to dissolve the 31st Parliament and hold a general election on 12 February 1980.[7]

As some of my friends and I have discussed recently, I have to stop holding Canadian parliamentarians to the standard set by their British counterparts; otherwise, I shall remain in a state of perpetual disappointment.

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[1] United Kingdom, The Gazette: London Gazette, “Dissolution Proclamation,” (London: Crown Copyright, 12 April 2010), issue 59388, page number 6393.
[2] United Kingdom, Prime Minister’s Office, 10 Downing Street, “Press Release: State Opening of Parliament to Take Place on 27 May 2015,” 26 March 2015 [accessed 20 August 2016].
[3] United Kingdom, The Gazette: London Gazette, Proclamations: By the Queen A Proclamation For Declaring the Calling of a New Parliament,” (London: Crown Copyright, 31 March 2105), issue 61188, page number, 6014.  
[4] Richard Kelly and Nicola Newson, Wash-Up 2010: Research Paper 11/18 (London: House of Commons Library, 11 February 2011), 2.
[5] Canada, Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar (Ottawa: Government of Canada, 1968), 403.
[6] Canada. House of Commons, Debates, 31st Parliament, 1st Session (13 December 1979) at 2362 (Joseph Clark).
[7] Canada. House of Commons, Debates, 31st Parliament, 1st Session (14 December 1979) at 2363 (Joseph Clark).

Posted in Crown (Powers and Office), Dissolution, Fixed-Date Elections | 11 Comments

Presentation to the “Constitution at 150 Conference”


I’m pleased to report that I will present a paper at the upcoming “Constitution at 150 Conference” in Montreal, Quebec, on the morning of May 16th.

The conference runs from 16 to 18 May. I’d encourage those of you who are in a position to attend it to register for it; if you read this blog, then, chances are, you’d find this conference interesting. The conference features an impressive line up, including, but not limited to, Professors Adam Dodek and Peter Oliver of the University of Ottawa, Jonathan Shanks of the Department of Justice, David E. Smith (Professor emeritus of Political Science of the University of Saskatchewan), and Clerk of the Senate Charles Robert.

My paper, “Canada’s Legal-Constitutional Continuity, 1791-1867” demonstrates how the Dominion of Canada is the continuator, or successor polity, to the Province of Canada (1841-1867), which is, in turn, the continuator of Upper Canada and Lower Canada (1791-1841). In a way, I suppose that it could be construed as contradicting the premise of the conference’s name because constitutional government in British North America pre-dates the British North America Act, 1867 itself.

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