WE THE PEOPLE," insists Peter Russell, is a phrase that has never decorated the preamble of any Canadian constitution. Until 1867 the successive documents that provided government to British North America were concocted in Whitehall by British officials. When 33 colonial politicians crowded into a stuffy room in Quebec in 1864 to earn the title of "Fathers of Confederation," none of them dreamed of consulting their electorates. In New Brunswick, where a perverse British governor forced an election, the Confederation project went down with the colonial government and only luck turned the tide a year later.
One result of the Quebec negotiations was that two minor participants, Oliver Mowat and Honore Mercier, could promote separate and powerful myths that largely contradict the historical record. Mowat, as premier of Ontario, insisted that Canada was the creation of its provinces; Mercier had insisted that Confederation was a sacred compact between two founding races that the English, of course, had already broken. Both myths transformed Canada far more than most of the realities of the British North America Act.
By 1931, Russell reminds us, when the British would cheerfully have unloaded their responsibilities on Canada, all nine premiers were unanimous that Canadians could not be trusted to manage their own constitutional amendments, and R. B. Bennett's federal government reluctantly agreed. It took another half-century before the deed was undone. Events since 1982 suggest that Howard Ferguson, Alexandre Taschereau, and their friends may well have been right.
Modem constitutional packages in 1982, 1987, and 1992 were concocted by 11 first ministers and their officials, "middle-class white men in suits," as they were derisively dismissed. In the wake of Meech, most provinces required consultation; and two of them, British Columbia and Alberta, required referenda before endorsing any new constitutional change. In 1992, Constitutional Odyssey suggests, elitism got out of hand when the first ministers and their officials were joined by two territorial leaders and the four leaders of self-selected Native pressure groups. The "No" coalition in the ensuing referendum included people who insisted that women, in their Native and non-Native versions, should have been included, and stretching behind them and well out of sight were other groups who would have staked their claims.
Canadian constitutions, Russell argues, have been inherently anti-democratic, designed to bind future generations to respect the wisdom of the drafters and to protect rights or privileges that a heedless democratic majority might be inclined to override. In his defence of the Senate in the debate on the Confederation proposals, Sir John A. Macdonald insisted that minorities had to be protected, "and the rich are always fewer in number than the poor." The maltreatment of 21,000 Japanese Canadians in 1942 was a powerful argument for the protections in the Charter of Rights and Freedoms though, in the eyes of the National Action Committee, the protections for men accused of rape and wife-beating are excessive.
Russell wrote Constitutional Odyssey with no idea that the October referendum would take place, much less its outcome. However, his advice is clear: if Canadians want to live together, Russell concludes, we must accept "a diversity deep enough to accommodate different degrees of allegiance to the country as a whole and different orderings of political values." That's how we survived for a century and a quarter.
