Confederation Research
I’m sure a contributor or reader of SLAW can enlighten me on a point of Canadian historical legal research that has stumped me. Since coming to Canada I’ve looked (on and off, and without a great deal of thoroughness I must admit) for a tool that will give the “Founders” view of the Constitution. S omething equivalent to the Australian Federation Debates compilation. Federation in Australia, and the Constitution of 1901, grew out of a series of debates held in the capital cities of the then colonies during the 1890s. Everything that was said was recorded by hansard reporters and the first thing a High Court judge will do, when dealing with a section of the Constitution, is say “what’s in the debates?”. As a reference librarian at the High Court in the dark days before the Internet, I had to scan the several very thik volumes of the Debates to find any and all mentions of a particular provision. Its made easy now because the entire collection is online via the Australian Parliament Web site. A highly valuable companion tool for Australian constitutional research is “The Annotated Constitution of the Commonwealth of Australian” by Quick and Garran, two men who attended the debates. “Quick and Garran” has been reprinted a number of times – no major research law library should be without a copy. And then for knowledge of what sources the Founders themselves would have consulted, there’s a great book called The Later Australian Federation Movement, 1883-1901: Outline and Bibliography (1979) by L.F.Crisp which is complemented by Federation: the Guide to Records (1998), a landmark work published by Australian Archives, which gathers details of archives and manuscripts in Australian repositories relating to federation and its aftermath.
So, c’mon Canadians – what are the equivalents?
Nick – I should check into this further but I always assumed that the Documents Relating to the Constitutional History of Canada, published by the PAC in three volumes from 1914 to 1935, and crudely accessible at http://www.canadiana.org/citm/primary/primary_e.html were the equivalents. But let me ask one of the Canadian slawers to comment directly, since most children of a certain age would have been rocked to sleep with readings from these rivetting tomes.
Very interesting. I personally have yet to be asked to conduct research into these materials, but I did find some additional core materials and indexing with some digging:
Department of Justice Canada pulls together the main documents from their Laws website: http://laws.justice.gc.ca/ under “Constitutional Texts”. This page points to two access pages:
Constitution Act 1867 to 1982
http://laws.justice.gc.ca/en/const/index.html
and
Canadian Charter of Rights and Freedoms
http://laws.justice.gc.ca/en/charter/index.html
The Parliament of Canada has a page devoted to outlining what happened during the various Constitutional Conferences over the years (1927 to 1999) with cites to the various reports; note additional documents are cited at the end of all the years:
http://www.parl.gc.ca/information/about/related/Federal/ConstConf.asp?Language=E
Looking through this page, it looks that most items are available at minimum from the National Library on Microfiche. Some are marked as “confidential” so this may explain why they are not widely accessible from a website or the like.
Finally, also from the Parliament of Canada, here is a chronology of what has happened since patriation of the Constitution, 1982 to the present (can be sorted both in chronological and reverse chronological order):
http://www.parl.gc.ca/information/about/related/Federal/ConstPat.asp?Language=E
Nick – some fast searching in Canlii.org reveals that courts, particularly the Supremes do look at the Confederation debates, and the documents surrounding the Quebec and Charlottetown Conferences.
Take a look for example at:
Musqueam Holdings Ltd. v. Assessor of Area #09 (highlight terms)
Citation : 2000 BCCA 299 Date: May 2, 2000 Language: en
British Columbia > Court of Appeal
Devine v. Quebec (Attorney General) (highlight terms)
Citation : [1988] 2 S.C.R. 790, 1988 CanLII 20 (S.C.C.) Date: December 15, 1988 Language: en
Canada > Supreme Court of Canada
R. v. Wetmore (highlight terms)
Citation : [1983] 2 S.C.R. 284, 1983 CanLII 29 (S.C.C.) Date: October 13, 1983 Language: en
Canada > Supreme Court of Canada
Westbank First Nation v. British Columbia Hydro and Power Authority (highlight terms)
Citation : [1999] 3 S.C.R. 134, 1999 CanLII 655 (S.C.C.) Date: September 10, 1999 Language: en
Canada > Supreme Court of Canada
Ontario Home Builders’ Association v. York Region Board of Education (highlight terms)
Citation : [1996] 2 S.C.R. 929, 1996 CanLII 164 (S.C.C.) Date: August 22, 1996 Language: en
Canada > Supreme Court of Canada
Re Manitoba Language Rights (highlight terms)
Citation : [1985] 1 S.C.R. 721, 1985 CanLII 33 (S.C.C.) Date: June 13, 1985 Language: en
Canada > Supreme Court of Canada
Re B.C. Motor Vehicle Act (highlight terms)
Citation : [1985] 2 S.C.R. 486, 1985 CanLII 81 (S.C.C.) Date: December 17, 1985 Language: en
Canada > Supreme Court of Canada
British Columbia (Attorney General) v. Canada (Attorney General) (highlight terms)
Citation : 1991 CanLII 2341 (BC C.A.) Date: October 4, 1991 Language: en
British Columbia > Court of Appeal
Figueroa v. Canada (Attorney General) (highlight terms)
Citation : [2003] 1 S.C.R. 912, 2003 SCC 37 Date: June 27, 2003 Language: en
Canada > Supreme Court of Canada
Westbank First Nation v. British Columbia Hydro and Power Authority (highlight terms)
Citation : [1999] 3 S.C.R. 134, 1999 CanLII 655 (S.C.C.) Date: September 10, 1999 Language: en
Canada > Supreme Court of Canada
British Columbia (Milk Board) v. Bari Cheese Ltd. (highlight terms)
Citation : 1991 CanLII 1150 (BC C.A.) Date: July 26, 1991 Language: en
British Columbia > Court of Appeal
Constitutional Question Act (Re) (highlight terms)
Citation : 1991 CanLII 405 (BC C.A.) Date: February 6, 1991 Language: en
British Columbia > Court of Appeal
Financement Agricole Canada c. Gestion Claufort Inc. (highlight terms)
Citation : 2004 IIJCan 10437 (QC C.S.) Date: April 6, 2004 Language: fr
Quebec > Superior Court
Sinclair v. Quebec (Attorney General) (highlight terms)
Citation : [1992] 1 S.C.R. 579, 1992 CanLII 126 (S.C.C.) Date: February 27, 1992 Language: en
Canada > Supreme Court of Canada
Law Society of Upper Canada c. Skapinker (highlight terms)
Citation : [1984] 1 S.C.R. 357, 1984 CanLII 3 (S.C.C.) Date: May 3, 1984 Language: en
Canada > Supreme Court of Canada
Westbank First Nation v. British Columbia Hydro and Power Authority (highlight terms)
Citation : [1999] 3 S.C.R. 134, 1999 CanLII 655 (S.C.C.) Date: September 10, 1999 Language: en
Canada > Supreme Court of Canada
Re B.C. Motor Vehicle Act (highlight terms)
Citation : [1985] 2 S.C.R. 486, 1985 CanLII 81 (S.C.C.) Date: December 17, 1985 Language: en
Canada > Supreme Court of Canada
Reference re Secession of Quebec (highlight terms)
Citation : [1998] 2 S.C.R. 217, 1998 CanLII 793 (S.C.C.) Date: August 20, 1998 Language: en
Canada > Supreme Court of Canada
Ontario Hydro v. Ontario (Labour Relations Board) (highlight terms)
Citation : [1993] 3 S.C.R. 327, 1993 CanLII 72 (S.C.C.) Date: September 30, 1993 Language: en
Canada > Supreme Court of Canada
H.L. v. Canada (Attorney General) (highlight terms)
Citation : [2005] 1 S.C.R. 401, 2005 SCC 25 Date: April 29, 2005 Language: en
Canada > Supreme Court of Canada
In a future post, I’ll try to explain why 33 years on after Confederation, the Australian use of the Debates was so different.
Thanks all for the rapid and very useful responses – I look forward to following them up!
Other than websites, there are some standard texts help in most academic and larger courthouse libraries that you could refer to as well:
Olliver, British North Amerian Act and Amendments (Ottawa: Kings Printer, 1943) also contains other acts and orders-in-council relating to the Constitution of Canada and of its provinces) 1867-1943 with a prefix containing a text of Quebec resolutions 1864 and London resolutions of 1866.
Bayefsky, Canada’s Constitution Acts 1982 & amendments: a documentary history. (Toronto: McGRaw Hill, 1989)
And, since Canadian constitutional history is more than about its documents, no understanding is complete without referring the old but still great Canadian titles on John A. MacDonald by Donald Creighton: the old Chieftan, and the Young Politician.
Actually Bora’s 1951 edition contains a good list of sources:
[See also Report of Royal Commission on Dominion-Provincial
Relations, 1940, Book 1, pp, 55-59; Scott The Special Nature of
Canadian Federalism (19471, 13 Can. J. Ec. & Pol. 13. Some of the
history of confederation is set out in Edward v. A,-G, Can., [1930]
A.C. 124, at p, 136, See Kennedy, Statutes, Treaties and Documents
of the Canadian Constitution, for the f ollowing relevant materials :
Quebec Resolutions, 1864, at p. 541; Debates on Confederation in the
(pre-confederatios?) Canadian Parliament, 1865, at p, 550; Westminster Palace Hotel (London) Resolutions, 1866, at p. 611. The latter formed the immdiate basis of the British North America Act, 1867, The texts of the Quebec and London Resolutions are also set out in O’Connor; Report to the Senate of Canada on the B.N.A. Act, 1939,
Annex 4, pp. 49 ff.: the two sets sf Resolutions are compared on pp. 66
IT.;and the London Resolutions and the B.N.A. Act are compared
on pp. 300 A concordance of the B.N.A. Act and the drafts
thereof and the London Resolutions is set out on pp. I33 ff. of the
B’Connor Report, Annex 4.
Seven drafts were prepared before a bill satisfaelory to the
delegates of the confederating provinces was presented to the British
Parliament for enactment: see Pope, Confederation Documents, 125
ff.; O’Connor Report, Annex I, pp. 5-6. The nature of the Quebec
and London Conferences is set out in the O’Connor Report, at
pp. 8-9
My scanner read the location of the London meetings as the Westminster Palace Motel which didn’t quite seem Sir John A’s style.
Finally Nick your own catalogue has some wonderful leads:
Get into your own books:
1)FC 472 C36 1999 1 FROST-BOOK FROST 2 SCOTT-BOOK CHECKEDOUT no circ
Title: Canada’s founding debates / edited by Janet Ajzenstat
… [et al.].
Publication info: Toronto : Stoddart, 1999.
Physical description: x, 502 p. : ill., maps ; 26 cm.
YORK CALL NUMBER COPY MATERIAL LOCATION
1)ELECTRONIC 1 DATAFILE INTERNET
Title: Correspondence relative to a meeting at Quebec of
delegates appointed to discuss the proposed union of
the British North American provinces [microform] :
presented to both Houses of Parliament by command of
Her Majesty, 7th February 1865.
Publication info: London : G.E. Eyre and W. Spottiswoode, 1865.
Physical description: 1 microfiche (11 fr.).
Series: (CIHM/ICMH Microfiche series = CIHM/ICMH collection de
microfiches ; no. 45291)
Series: CIHM/ICMH Microfiche series ; no. 45291
General note: Includes correspondence between Governor General Monck
and the Colonial Office.
Reproduction note: Filmed from a copy of the original publication held by
the Thomas Fisher Rare Book Library, University of
Toronto Library. Ottawa : Canadian Institute for
Historical Microreproductions, 1984.
Corporate author: Canada. Legislature.
Title: The Confederation debates in the Province of Canada,
1865 : a selection / edited and introduced by P. B.
Waite. —
Publication info: Toronto : McClelland and Stewart, [c1963]
Physical description: 157, [2] p. ; 19 cm. — Series: (The Carleton library ; no. 2)
YORK-LAW CALL NUMBER COPY MATERIAL LOCATION
1)F 1032 C26 1 LAW-BOOK LAW
Sir John was a man of many parts, but it is equally important to remember the importance of his colleague George Etienne-Cartier to confederation.
See inter alia.
J. Boyd, Sir George Étienne Cartier (1914); Alastair Sweeny, George-Étienne Cartier (1976); B. Young, Sir George-Étienne Cartier (1981).
I’m sure these will be a York somewhere.
nc